President Joe Biden has reportedly asked Israeli Prime Minister Benjamin Netanyahu to stop pushing through a “divisive” judicial overhaul bill amid protests.
This is the same Biden, incidentally, who crammed through a massive, highly “divisive,” generational spending bill with zero votes from the opposition; the same guy who regularly rules by unconstitutional executive diktats; and the same guy who has done more to delegitimize the Supreme Court than any president in modern history. Not exactly the moral high ground.
In any event, the president is concerned. As is The New York Times, which reports, “Israel’s Parliament passed a deeply contentious law limiting the Supreme Court’s ability to overturn decisions made by government ministers.” What the Times means is that there is a new law limiting the judiciary’s ability to unilaterally declare legislation “unconstitutional” without using any legal justification whatsoever.
Because, as it stands, Israel has a strong anti-democratic system overseen by a high court that is probably the most powerful judiciary in the free world. Netanyahu’s judicial reforms, only a small piece has passed, would bring Israel back all the way to 1995, when “judiciary revolution” imbued the court with supreme power over legislation. The alleged authoritarian “backsliding” by Israel’s “far-right” government — as if there is any other kind — would likely create a far more “democratic” system.
The judiciary primacy might work if the Israeli court’s decisions were grounded in some kind of statutory authority, traditional legal framework, or even existing regulation and law. But there is no Israeli constitution. The court’s decisions are often arbitrary, politically expedient, constantly evolving, and sometimes contradictory. The court regularly blocks laws passed by center-right governments simply because judges claim policy is unreasonable.
Why only center-right governments? Because the entrenched judges (with their allies in the Israeli bar) appoint their own successors in perpetuity. There is no accountability to either the popular will or a constitutional tradition. Imagine the American left’s outlook if the Supreme Court’s originalists could simply tap their own replacements without any input from senators or the president. “Only in Israel do judges confer the power of abstract review on themselves, without benefit of a constitutional or legislative provision,” Richard Posner once described the nation’s system. “One is reminded of Napoleon’s taking the crown out of the pope’s hands and putting it on his own head.”
The system is so insane that not only can the court lord over the legislative branch without explanation, but it can remove ministers and elected officials at will. The attorney general is empowered to bar officials — even the prime minister — from participating in national debates. This is not, by any real standard, “democratic” governance. It is illiberal.
Perhaps there is no good way to balance what is effectively two branches of the Israeli government. It’s a complicated issue. Reforms are no panacea. Some aspects make more sense than others. But judicial reform is hardly a new idea, and reforms are not being “rushed.” They have been debated within Israeli politics for decades, with numerous moderate legal voices proposing changes over that time. In many ways, the freak-out reminds me of the American left’s alarmism over tax cuts and net neutrality. It is largely a political effort to undermine Netanyahu.
The Associated Press, however, stresses that the protests in Israel are a “grassroots” effort as if this imbues a mob with a moral high ground or the authority to dictate government policy. In truth, many of the marches — and threats to shut down Israeli society — are organized by Israel’s biggest and most powerful unions and egged on by foreigners. If the prime minister lets these protestors blackmail him, he might as well resign right now. It’s going to incentivize anarchy.
As of now, protestors from both sides are out on the streets. And so far, they haven’t engaged in the defenestration of their opponents or any violence. The debate is an illustration of a “democracy” working, not one sliding into tyranny.
Yet, every time Israel has a contentious internal debate, concern-trolls like Tom Friedman emerge to lament the coming end of Israeli democracy. You will notice that according to the media, legislative proposals, domestic or foreign, are only “divisive” and “deeply contentious” when conservatives support them. The reality is that virtually everything we do in politics is “divisive” and “deeply contentious.” That’s why politics exists. And in Israel, the time of day is a deeply contentious issue.
Moreover, for the left, “democracy” can mean hyper-majoritarianism or judicial tyranny. Whatever works. Depends on the day. What am I saying? Democrats will argue that limiting judicial supremacy in Israel is an attack on “democracy” while at the same time claiming SCOTUS is engaged in judicial supremacy for showing deference to the Constitution and handing back issues like abortion to voters. Calvinball all the way down.
Of course, the Israeli Supreme Court was packed with right-wingers instead of left-wingers, American media, the Democratic Party, and the protestors would be on the reform side. None of this has anything to do with governing principles or justice or norms or “democracy.” Like those destroying the American judiciary at home, it’s about power.
The Israeli right is also about power. I’m not naïve. But right now, the reforms they support are far better aligned with the norms of a functioning “democracy” than the ones in place. That’s something a person reading headlines in the American press might not know.