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Friday, April 7, 2023

What Israel’s Battle Over the Judicial Branch Teaches Us about the Proper Structure of Government

Unlimited and unchecked power in the hands of anyone is an 'invitation to tyranny.'

Image: Israel Supreme Court | CC BY 3.0 (via Wiki Commons)

A political fight is brewing in Israel, and the stakes involve more than candidates.

After the fifth round of parliamentary elections since 2019 — a consequence of political stalemate — Israel’s Benjamin Netanyahu was able to form a stable coalition in the closing days of 2022. This coalition is considered to be the most right-wing and religiously conservative in Israel’s history, as 14 of its 64 seats are occupied by representatives from the far-right Religious Zionist ticket, and another 18 are held by Ultra-Orthodox parties. The most moderate — but also by far the largest — party in the coalition is Likud, led by Benjamin Netanyahu.

Despite Israel’s electorate being primarily concerned with national security and the economy, the first item on the legislative agenda of the new government was judicial reform. And the changes proposed were not merely small tweaks to the system; rather, they would alter key aspects of the country’s judiciary.

The controversy that was generated by the judicial reform can teach us valuable lessons about the proper balance of powers and the danger of centralized authority. Israel is a country that is only 75 years old and does not have an official constitution, which means its institutions are not as stable as a place like the United States. It also means that certain fundamental questions about those institutions are not set in stone. Thus, differing approaches to how they will balance majority rule with minority rights, for example, is fuel for political fights like the one that has erupted in recent months.

The Reforms and the Reaction

Broadly speaking, the reforms can be split up into two categories.

The first is measures that restrict the ability of the court to exercise judicial review. This would manifest in two ways. The first is that the Knesset (the Israeli Parliament) would be able to vote, with a majority of 61 members, to make a bill immune from judicial review even if those on the court believed it violated one of Israel’s Basic Laws. Second, the court would not be permitted to strike down Basic Laws, which have quasi-Constitutional status.

The second broad category is changes to how Supreme Court Justices are selected. The proposed reforms would alter the composition of the selection committee, which chooses new Justices. In short, the reforms would shift the balance of power on the committee from existing Justices and members of the bar association to members of the Knesset elected by the people. Thus, politicians would have greater influence over who is seated on the court.

In response to these reforms, a massive protest movement has taken hold. Every Saturday night for over a dozen weeks now, hundreds of thousands of Israelis have taken to the streets to push back against the proposals. Two weeks ago, over 700,000 people — out of a total population of only 9.3 million — joined the protests after Prime Minister Netanyahu fired the defense minister for opposing the legislation.

There has not been a mass movement like this in the history of the State of Israel. The protest movement has featured general strikes, national “days of disruption,” and numerous examples of reserve soldiers refusing to show up for duty. There is a sense of increasing polarization in Israeli society due to these reforms, which cut along the religious-secular divide, the Ashkenazi-Mizrachi divide, and the basic left-right divide. This polarization is believed to threaten the security, economy, and cohesion of the country.

The pressure on the government eventually led to Prime Minister Netanyahu delaying the vote for a few months, which he hoped would calm tensions. It is anybody’s guess whether there will ultimately be a compromise; but, if there is not, then the division will continue to grow.

The Merits and Demerits of Reform

Those who oppose the government’s plan argue that these reforms would give the governing coalition unlimited and unchecked power. This fact, merged with the reality of the extremism of the current coalition, is concerning for both ethnic and political minorities. After all, if the court cannot strike down a law, then there is nothing stopping the Knesset from enacting laws that violate individual rights. And what is the government there to do if not protect individual rights?

The current Minister of National Security, Itamar Ben-Gvir, was found guilty of incitement to racism and support of a terrorist organization in 2007. And the current finance minister is on record making numerous racist statements. They now have real power in the Israeli government. Protesters point out that just because people vote for a given person or policy does not mean it should be implemented because, in a democracy, there must be some questions that are “beyond the reach of majorities.” An important part of a healthy democracy is guardrails that prevent it from becoming nothing more than the tyranny of the majority.

On the other side, supporters argue that this reform is necessary because the court has unjustly granted itself power that restricts the ability of the elected members of the Knesset to enact laws they got voted in to implement. As the country becomes increasingly conservative and religious, the court is seen as an “insular, elitist group that does not represent the Israeli people.”

One would be hard-pressed to find another country where current Justices have veto power over who gets to join them on the court or to find a high court that granted itself the power to strike down a law or political appointee merely based on it being “unreasonable” — all without a formal constitution to base their decisions on.

We intuitively understand that it would be absurd if Clarence Thomas or Brett Kavanaugh had a say — let alone veto power — on who the next Supreme Court Justice in the US would be. We similarly understand it would be bizarre if the US Supreme Court struck down a law or political appointee they did not like just because they claimed it was “unreasonable” — not because it violated any specific part of the Constitution. We should simply extend that common sense to Israel in order to understand why many want reform. The reason is simple: to many, the Supreme Court represents an unelected and unaccountable group of people who have the ability to grant itself ever more power, even against the will of the Israeli people.

What Is the Answer?

Both those in favor and opposed to the proposed judicial reform have valid concerns. Thus, we can conclude that there must be reform, but those currently proposed go too far. In effect, they would take Israel’s system from one type of extreme to another — to an “unrestrained democratic power center [from] an unmoored undemocratic one.”

Just like in most domains, a balance must be struck between two competing goods. On one hand, it is important for the people to have a say in the policy that their government implements. On the other hand, it is important that certain questions — particularly those pertaining to fundamental individual rights — are not up for debate but protected as a matter of principle.

This is a challenging balance to achieve, but a good starting point would be to abandon the aspect of the reform that gives the Knesset the power to make a bill immune from judicial review with nothing more than a 61-59 majority. Aside from that, much of the reform should be maintained, as it will likely create greater balance than there is in the status quo. Seventy-two percent of Israelis agree, and would like to see a compromise between the two sides.

In the long term, it is hard to see a great way to settle these questions about balance of power other than to create a well-crafted Constitution. Because of Israel’s diversity, this will be a difficult and long process; but, without it, disputes over these basic questions will continue to divide Israeli society. And in a country as small as Israel, social cohesion is extremely important.

What Can We Learn?

From this controversy, we can learn two things.

First, we should learn that prudence is a crucial virtue for those in government. One should be wary of massive changes to core institutions because a stable society requires stable institutions. And when one abandons incrementalism, and instead recklessly moves forward with overhaul, it puts the stability of those institutions into jeopardy both in the short and long term. In the short term, it can cause unforeseen social and economic strife. In the long term, those with different political views will eventually win another election and, when they do, they will be able to take similarly drastic action to either reverse these changes or radically overhaul another set of institutions. The unintended consequences of imprudence are numerous.

Second, we should learn that when structuring a government, there is almost nothing more important than balancing power between different branches such that it is not centralized in the hands of one branch. The reason is simple: when power is centralized, there is no tension between groups with different interests and purposes such that all valid concerns are given a voice. Rather, only one perspective and the interests of one group — namely, the group in power — are considered. This a path to authoritarian rule.

In Federalist Paper 51, James Madison wrote that “In framing a government, which is to be administered by men over men, the great difficulty is this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

Madison correctly recognized the difficulty of achieving a proper structure of checks and balances. In the United States, we should recognize how lucky we are to have a system set in stone that is likely the best in the world — and not abandon it for political convenience. In Israel, the two extremes will hopefully be rejected in favor of a system that recognizes unlimited and unchecked power in the hands of anyone is — in the words of author Tom Woods — an “invitation to tyranny.”

  • Jack Elbaum was a Hazlitt Writing Fellow at FEE and is a junior at George Washington University. His writing has been featured in The Wall Street Journal, Newsweek, The New York Post, and the Washington Examiner. You can contact him at [email protected] and follow him on Twitter @Jack_Elbaum.