How to Reform Israel's Runaway Supreme Court

Israeli Supreme Court president Esther Hayut (THOMAS COEX/AFP/Getty Images)
April 2, 2019

On March 17, Israel’s Supreme Court banned Michael Ben-Ari, a member of the Otzma Yehudit or "Jewish Power" Party, from being a candidate in the Israeli elections. The court made its decision even after Israel’s Central Elections Committee said he could run. What especially provoked indignation was that at the same time the Supreme Court rejected Ben-Ari, it also overturned the Central Election Committee’s decision to ban the Arab party, Balad, which rejects the very idea of a Jewish State, and a radical-left Jewish candidate, Ofer Cassif, who is running on a joint list of two other Arab parties, Hadash and Ta’al, and who has compared Israel to Nazi Germany and referred to Israel’s War of Independence as the "Naqba" or catastrophe.

The Supreme Court ruling was 8-1. Minister of Justice Ayelet Shaked decried the ruling: "The decision by the High Court of Justice to disqualify Ben-Ari [for anti-Arab racist statements] and, on the other hand, to permit terror-supporting parties is a blatant and misleading intervention that goes to the core of Israeli democracy."

Simcha Rothman, legal adviser to the Israeli Movement for Governability and Democracy, a nonprofit group that has been leading the charge for reforming Israel’s legal system, believes that by employing such a naked double standard, the Supreme Court may have played into the hands of its critics.

"I believe it will bring people out to vote for right-wing parties as a whole and, in particular, for the party that Ben-Ari was part of," Rothman told the Free Beacon. "People will go to vote for them out of rage, as a vote of nonconfidence in the court."

He may be right. The United Religious Right List, on which Ben-Ari had been running, has shown a marked improvement in the latest polls, and is now expected to win six to seven seats in the next Knesset.

The changes demanded by advocates of reform, however, are most likely to come from Ayelet Shaked’s (and Naftali Bennett’s) New Right Party. As justice minister in the current coalition government, Shaked is the only one to have held the position to have brought about actual change to the Supreme Court. Now postelection, she promises more dramatic reforms, offering a 100-day plan to "return the separation of powers to their proper place."

The plan includes (1) a selection method more in keeping with other Western countries, where judges are appointed by elected officials—in Israel the Supreme Court chooses its own members, (2) passing a Basic Law that would clearly define the court’s limits, and (3) changing the way legal advisers to the government are appointed. At present, ministers have no say in choosing the legal advisers serving in their ministries, effectively making the advisers the court’s "inside man" rather than faithful servants of the ministry.

Israel’s Supreme Court has long been accused of having run off the rails. Judge Robert Bork in Coercing Virtue: The Worldwide Rule of Judges (2003) gave Israel’s high court "pride of place in the international judicial deformation of democratic government." U.S. Supreme Court justice Antonin Scalia said he enjoyed perusing Israeli Supreme Court rulings because they made him feel better about his own court.

In Israel, disquiet grew as an increasingly self-confident Supreme Court in 2017 struck down five Knesset-passed laws, the most in a single year.

A political maelstrom is sure to follow if the Supreme Court strikes down the new Nation-State Law. In January, 2018, the court said it would hear challenges to the law, which is largely symbolic, defining Israel as a Jewish State. It has been attacked by its critics as undermining Israeli democracy and the rights of its minorities—none of which is true.

The court will first have to rule whether it has the authority to strike down the law, as it’s a Basic Law. Basic Laws have quasi-constitutional status in Israel, which doesn’t have a constitution. In fact, Basic Laws were the pretext used by the court in 1995 under its then-President Aharon Barak to arrogate to the court the authority to strike down Knesset legislation. Barak declared that two Basic Laws passed in 1992 created a "constitutional revolution."

But can the court, which derives its authority to cancel legislation from Basic Laws, turn around and strike down a Basic Law?

Shaked says the answer is no. Barak, in retirement, says yes. For those who wish to see the Supreme Court reined in, Barak is the clear villain of the story. On Monday, Shaked told an audience, "In my next four years as justice minister, I will cancel Aharon Barak's constitutional revolution."

"Barak's constitutional revolution has gradually paralyzed government systems in Israel. Ministers are afraid to make decisions. Legal advisers rule the government."

Shaked’s words represent a change in rhetoric concerning Israel’s high court. Criticizing it was once political taboo. No longer. Social media has played a role, opening up a channel for people to voice their opinions. This has led politicians who were once wary of saying anything to speak out.

In 2012, Prime Minister Benjamin Netanyahu boasted of how he had blocked attempts to harm the court. Now he says he’s for the Override Clause, proposed legislation that would allow Israel’s Knesset to overturn court rulings that strike down laws. Shaked includes the Override Clause to her package of proposals.

Even Moshe Kahlon, leader of the Kulanu party, who is widely considered to have prevented reform, acting as the court’s protector in the last government, said he has had a change of heart.

Within the broader public, trust in the high court has dropped 16.5 percent in the last five years, according to the Israeli Democracy Institute.  Some say this is due to the court’s interference in popular government policies, such as when it prevented the government from transferring thousands of illegal African migrants from South Tel Aviv.

If the next government coalition looks like the last, the "democratic revolution" that Shaked argues is desperately needed may finally occur.  Until then, Israel’s Supreme Court remains the highest power in the land.

Published under: Israel