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A court without bounds?

Fact and fiction on the controversy surrounding Israel’s Supreme Court

Israelis protest in Tel Aviv, Israel, on March 16 against plans to overhaul Israel’s judicial system. Associated Press/Photo by Ohad Zwigenberg

A court without bounds?
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It’s an old joke that any random street crime in Jerusalem is reported like a local story in the New York Times. There are multiple murders any given night in Chicago or Atlanta, but a stabbing in Israel is evidently big news. So it should not surprise us that the New York Times, the Washington Post, and other major media are obsessed with news reports and opinion columns on proposed judicial reforms in Israel, which have taken up more ink of late than any topic at our own U.S. Supreme Court.

“Netanyahu Is Shattering Israeli Society,” proclaims globe-trotting Times columnist Thomas Friedman, warning against a “judicial putsch” by the prime minister that would “effectively eliminate the independence of Israel’s high court.” The “autocratic judicial overhaul” makes predictions of a future dictatorship in Israel more than “idle speculation” because this is “the most ultranationalist, ultra-Orthodox government in Israel’s history” which is “now driven by messianic religious zealots.”

He’s hardly alone in such dire warnings—Israeli historian Gershom Gorenberg writes this week in the Washington Post of Netanyahu’s “legislative offensive to render the courts powerless” that “could leave civil rights unprotected and reduce limits on the prime minister’s powers.” And former New York Mayor Michael Bloomberg, again in the Times, laments that Israel is “courting disaster” (an intentional pun, we assume).

First off, one only wishes the editorial pages had expressed such concern when prominent leaders on the American left called on President Biden to pack the U.S. Supreme Court. The proposed Judiciary Act of 2021 would have expanded the U.S. Supreme Court to thirteen, giving Biden four more picks and thus a majority of Democratic appointees. It drew 59 Democratic sponsors in the House, while Senator Elizabeth Warren of Massachusetts, announced her support in the Boston Globe. The year before, the New York Times Magazine ran a seven-column collection on “fixing the U.S. Supreme Court,” introduced by a warning from the symposium impresario that the current “Republican dominance” is “a dangerous proposition for our constitutional order.” So, to be clear: Biden court-packing, good. Netanyahu court-packing, bad. Got it.

A constitutional court untethered to a constitutional text is a recipe for judicial activism.

Second, the criticism ignores fundamental differences between the Israeli government and our own. First, the Israeli government is significantly more democratic (in terms of direct democracy) than our American republic. Israel has only one legislative house—the Knesset—there is no House and Senate with different terms or constituencies as in our system. And the prime minister, the main decision-maker in the Israeli system, is the man or woman who commands the support of a majority of the Knesset. Israel has a president, but it is a largely ceremonial role like that of the British monarch. There is no possibility of divided government in such a system, which looks much more like the British parliament than our own federal system. Moreover, Israel does not have a system of sovereign states that have a great deal of autonomy from the central government and can check its powers. Israel has regions and municipalities, but they function subordinate to a national ministry.

On top of all this, Israel is one of a handful of nations in the world without a formal written constitution, though it does have certain “basic laws.” As a result, when we say that Israeli judges are interpreting and applying a higher law to strike down a statute, it doesn’t have the same meaning as we Americans think about it. As Justice Antonin Scalia taught us, among the important functions of a written constitution is to tie judges down and to create a text to which judges must be anchored. Yet in 1995, Israel’s Supreme Court declared itself (in the words of an Israeli law professor) “a constitutional court as opposed to simply an administrative court and announced that it would reject legislation that would harm Israel as a Jewish and democratic state.” A constitutional court untethered to a constitutional text is a recipe for judicial activism.

Since that time, predictably, the Israeli Supreme Court has been at the center of many of the most vital debates at the heart of the nation’s politics and culture, including same-sex marriage, gender equality, West Bank settlements, and treatment of Orthodox Jews. As the court has waded into these contentious issues, politicians have naturally focused on the nature of the court itself. The protests roiling Israel are not just about the nature of judicial selection, but about the underlying issues the court is frequently deciding, and whether people agree or disagree with the policies served by its decisions.

Of course, the simple answer is that if you want people to focus less on the role of judges and the courts, don’t have the judges make all the important decisions in society in the first place.

Daniel R. Suhr

Daniel R. Suhr is an attorney who fights for freedom in courts across America. He has worked as a senior adviser for Wisconsin Gov. Scott Walker, as a law clerk for Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit, and at the national headquarters of the Federalist Society. He is a member of Christ Church Mequon. He is an Eagle Scout, and he loves spending time with his wife Anna and their two sons, Will and Graham, at their home near Milwaukee.

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