A strident debate is occurring in Israel about the role of the judiciary and democratic governance. Virtually every democracy debates this issue periodically, because there is an inherent conflict between majority power and minority rights.
The traditional role of non-elected courts is to impose a check on politicians who are elected by the majority. Whenever courts overrule decisions reached by the majority, there are complaints. This has been true in the United States since the days of Thomas Jefferson and John Marshall. The United States Supreme Court’s decision in the Dred Scott case was one of the causes of the American Civil War, and its decision in Brown vs. Board of Education led to the widespread demands for the impeachment of Chief Justice Earl Warren throughout the South. Sometimes, history has proved the courts to be right, as in the Brown case; many times history has proved the courts to be wrong, as in Dred Scott, the detention of Japanese Americans during World War II, and the compelled sterilization of the mentally retarded in the 1920s. There is no perfect solution to the paradox of appointed judges overruling elected legislators, but some strike a better balance than others.
Israel is now in the midst of one of the most contentious debates in its history. Israel is different from the United States in that in its foundation it was far closer to being a pure democracy than our republic. The Knesset is a single house legislature. The executive is part of the legislature and serves at its will. Israel has no written constitution. Israel’s only mechanism for checks and balances is the judiciary, which itself is a creature of the Knesset and thus subject to Knesset control and limitations.
Throughout Israel’s 75-year history, and especially since the 1990s, the Supreme Court has served as an effective check on the excesses of the Knesset, the prime minister, the military and other institutions of government. Some think that its checks have been excessive. This is especially the attitude among those who support emerging right-wing populism, reflected most dramatically in the most recent election and the current government, which includes some religious and nationalistic extremists. They oppose what has been called the “judicial revolution” of the 1990s and are seeking a counter revolution of their own that would significantly curtail the powers of the Supreme Court. The majority of Israelis seem to be somewhere in the middle, opposing both the extreme reforms of the new government and what many regard as the excesses of the earlier judicial revolution.
As an outsider who has been deeply involved in defending Israel for more than half a century, I am concerned about this clash of extremes and have been seeking to propose compromise resolutions that are acceptable, if not desired, by both sides. I’ve spoken to leaders of both camps as well as those in the middle. These include Prime Minister Benjamin Netanyahu, former Supreme Court president Aharon Barak, President Isaac Herzog, Knesset members Itamar Ben-Gvir and Bezalel Smotrich, as well as many academics. The law professor in me loves this debate. But the divisions that it seems to be causing, or at least reflecting, are worrying. I hope I can contribute even a very small amount to helping resolve or narrow the differences, since I have close friends on both sides, and the rights and wrongs are not limited to one side.
What intrigues me most is why the world is paying so much attention to what is essentially a domestic Israeli dispute. The world paid little attention when left wing Democrats demanded the packing of the US Supreme Court and limitations on the terms and powers of the justices following the controversial overturning of Roe v. Wade. Even when President Joe Biden appointed a commission to study these issues and make recommendations, the international community ignored it.
But the world seems obsessed with the Israeli debate, as it does about so many other issues relating to Israel. This obsession is part of the dangerous double standard that the international community has long imposed on the nation state of the Jewish people. The centrality of Israel to the major religions may explain the focus of the adherents to these faiths, but it does not explain the obsession of the secular left. Nearly everything Israel does generates criticism from international bodies and organizations. These groups devote more attention to Israel than to the rest of the nations of the world combined. And this international attention is often used and misused by Israeli advocates against their opponents. For example, in the current debate, opponents of the judicial reforms have argued that if they are enacted it will cause international businesses to leave Israel. This may well become a self-fulfilling prophecy, as economics is often a question of perception rather than reality.
Both sides have tried to weaponize members of the American Jewish community to pressure the other side. I am an opponent of most of the proposed reforms, though I think that a compromise on some of them is in order. But let’s be clear: even if all the proposed reforms are enacted (which I hope they will not be) Israel will remain a strong democracy. It will remain far more democratic than any other countries in the region and also more democratic than most European and Asian countries. Indeed the reforms would bring Israel closer to being a pure democracy governed by majority rule. But they would endanger minority rights, civil liberties, equal rights, due process and the rule of law. That’s why I oppose them. Israel would be a better democracy with these principles kept intact then if they are compromised by a reduction in the power of the Supreme Court to enforce them.
The international community has little or no stake in the outcome of this debate. It will have little effect, if any, on any peace process or on the Abraham Accords or on Israel’s relationships with other countries. The recent election itself, and the new government it produced, may well impact relations with the Palestinians and others, and the ill-advised judicial reforms seem to be serving as a surrogate for these more international issues. Even the mass demonstrations against the judicial reforms in Tel Aviv and Jerusalem often go beyond that issue and extend to general opposition to the new government and its right-wing policies. These demonstrations are the best evidence of Israel’s commitment to the democratic values of peaceful protest against a democratically elected government that is wildly unpopular among large and influential members of the public. Democracy produced the new government, and democracy produced the protests against it. So much for the fear mongering among those who are telling the world that Israel is on the verge of becoming an autocracy – or in the false and dangerous words of some extremists, that it has already become the Germany of the 1930s. Even back in 2016, that false comparison was being made. [See Israel General Compares Modern Israel to 1930s Germany, Middle Eastern Eye, May 5, 2016].
Israel may continue to move rightward, as many other countries have in the growing age of nationalism and populism. For the first several decades of its existence it veered to the left, with elements of socialism. Changing demography changes politics. That’s democracy. But I don’t believe that the Israeli people will easily succumb to the temptations of authoritarianism – and certainly not fascism. They are too independent, opinionated, and ornery. They have chutzpah, in the best sense of that term. More importantly, and more relevant to this discussion, if the pendulum were ever to swing in the direction of fascism – which I do not believe it will – the Supreme Court alone will not save it.
As the great American jurist Learned Hand observed in his “Spirit of Liberty” speech of 1944, during a war of fascism against democracy, “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”
I think Judge Hand may have understated the possible influences of the judiciary on helping to preserve liberty, but he was certainly correct to place more emphasis on the “hearts and minds of men and women.” The current protests against weakening the judiciary speak loudly about the spirit of liberty among so many Israelis.
Israel should do the right thing not because of pressure from other nations, but because it is best for Israel. The international obsession with Israel’s imperfections does not promote the spirit of Liberty among Israelis. The conflict over Judicial “reform” must be solved by Israelis based on Israeli values. Outsiders must feel free to offer advice, but should refrain from trying to put undue pressure on Israeli democratic decision-making. I am confident that Israel’s values will be its “Iron Dome” against authoritarianism.