No constitution. No limiting principles of governance. Entrenched leftist judges who get to appoint their own successors in perpetuity. Courts that offer arbitrary, expedient, constantly evolving, sometimes contradictory rulings to block laws passed by duly-elected, center-right governments. An attorney general empowered to bar elected leaders from participating in national debates. Sounds like a progressive paradise.
This is the reality of the Israeli high court, which is likely imbued with more power than any other in the Western world. It is not always wrong. It is not always nakedly partisan. But it has power to act as a judicial dictatorship, and often does.
And after Benjamin Netanyahu’s government proposed reforming this insane system — procedural reforms that would be in place no matter who was in power — the left acted as the contemporary left always acts when it doesn’t get its way. It got hysterical. The mass protests that erupted were hardly “spontaneous,” though, contrary to many reports in the establishment media. Most of the demonstrations were organized by Israel’s biggest unions and egged on by foreigners. Because a less powerful judiciary threatens the center-left’s power.
A country without a constitution or bill of rights, and only a single house of parliament — one that, by the nature of the system, is controlled by the prime minister (or vice versa) — will struggle to maintain any genuine checks and balances. The direct democratic character of Israel’s government, one that American progressives would like to emulate, gives both too much power to the prime minister and too much power to fringe parties the prime minister needs to keep in line to rule. It’s a dysfunctional mess.
But the nation’s judicial system is even worse. Israel’s political system was created by leftists who envisioned a one-party state. From its inception, the nation’s socialists suppressed — sometimes violently — political opposition. And in the 1950s, a ruling Labor Party preempted the opposition from infiltrating the courts by empowering judges to veto appointees to the bench. This created a self-perpetuating, generationally cocooned judiciary that functions without any set of cohesive legal principles or oversight.
Until the 1970s, when Likud challenged the political primacy of Labor, this high court functioned well enough. By the first half of the 1990s, when it was clear the center-right was here to stay, the Knesset passed additional “basic laws” — piecemeal, quasi-constitutional bills that are more like suggestions than commands — with names like the “Human Dignity and Liberty” law and “Freedom of Occupation” law. These efforts were so broad and malleable that the high court could act in virtually any way it desired. While the ruling government could theoretically be thrown out by voters, or undone by defecting parties, the courts were now empowered to dictate not only the law but policy.
Netanyahu is no authoritarian. But some of the proposed ideas are certainly more useful than others. The override clause in the reform bill, for example, empowers the Knesset to reinstate laws struck down by the Supreme Court with only 61 votes, or a simple majority. That means the Knesset, whether it is center-right or center-left, could ignore the courts, even when acting illiberally. Right now, the high court (perpetually on the left) is empowered to strike down any law it wants for any concocted reason it comes up with, whether it is protecting the tenets of liberal democracy or not. Neither setup is optimal in an ideologically diverse, multi-party state.
Now, if you trusted the American media’s coverage of the protests in Israel, you might be under the impression that demonstrators fighting to preserve a court that is untethered from both the will of voters or any definitive set of legal standards were on the side of “democracy” while the elected officials proposing more majoritarianism were the authoritarians. One suspects that has a lot to do with the left’s distorted conception of “democracy.”
If the Israeli high court were run generationally by right-wingers, the Democrats would be hailing judicial reform as necessary. Instead, Joe Biden lectures Netanyahu about the need for any “fundamental changes” to “be pursued with the broadest possible base of popular support.”
Biden, remember, helped cram through a mammoth overhaul of the entire U.S. health-care system with Obamacare. He did it again when shoving through another $1.2 trillion leftist grab bag just last year. The same White House that says the Israeli government reform legislation “flies in the face of the whole idea of checks and balances” is behind a slew of executive orders circumventing the legislative branch. Many of the same people feigning concern about the checks and balances in Israel champion ridding the U.S. Senate of the legislative filibuster. And many of those wringing their hands over Israel’s judicial reform propose packing the Supreme Court and regularly delegitimize it.
Then again, contemporary Democrats often confuse their Calvinball power grabs with “democracy.” The truth is much more complicated.