An unreasonable court?

For much of 2023, Israel’s headlines were dominated by a national debate over the judiciary. The brutal attack by Hamas militants on Oct. 7 pushed the court into the background. Now with the country months into military operations against Hamas, the Israel Supreme Court resurfaces to defend its prerogatives.

While some—in Israel and outside—have sought to cast the Israeli judiciary as the embattled defender of Israeli’s liberal democratic values, it is hardly so simple. It is better to see both sides of the issue in Israel as debating the place of the judiciary in Israeli democracy. While the Israeli judiciary may sometimes serve as a valuable check on parliament, the judiciary appears to be without a check of its own—and that is cause for concern.

Israel has a parliamentary government system. The legislature and the executive are not sharply distinguished. But the Israeli Supreme Court is independent of the parliament (Knesset). This puts it in a powerful position—the most significant check on the Knesset’s power.

To put this in perspective, we can compare the Israeli Supreme Court with its American counterpart. Israel’s court is less accountable to the people in two important regards.

First, the judges of the Israeli Supreme Court are not appointed through elected channels. While in the United States, federal judges are nominated by the president and confirmed after receiving the assent of the Senate, in Israel, the judicial selection process is primarily driven by the bench and bar itself. The president of Israel, a figurehead position, selects from names provided by the Judicial Selection Committee; on the committee, judges and bar members outnumber the representatives of the cabinet and Knesset. This has made the Israeli judiciary largely a self-perpetuating elite of the legal profession. In its commitments, the Israeli legal profession, and with it the judiciary, is largely to the left of center in Israeli politics.

Second, the Israeli Supreme Court does not enforce a written constitution. It exercises judicial review over government decisions and legislation. But its basis for doing so is harder to explain and justify than in the American context. In the United States, the classic justification for judicial review is that the Constitution is the supreme law and trumps any government actions or legislation that is at odds with it. The Israeli Supreme Court enforces legislative enactments known in Israel as the “basic law.” These laws aren’t quite a constitution and it’s not entirely clear how these pieces of legislation trump others.

Put these elements together, and Israel’s Supreme Court is powerful, politically unaccountable, and its legitimacy is most vulnerable when exercising judicial review.

None of this has stopped the court from exercising judicial review boldly. More often than not, it has done so aligned with left-of-center policies.

One of the Israeli court’s most flexible—and therefore, in the eyes of critics, dangerous—tools is “reasonableness.” It has said that reasonableness is a requirement for government action—and has not hesitated to tell the Knesset and cabinet “no” when it deems an action (a law, a policy, a political appointment) unreasonable. But reasonableness is hard to define and easily malleable. For those who do not implicitly trust the Israeli court, its reasonableness jurisprudence appears to be one of the more egregious examples of its willingness to wield its power according to its political preferences rather than enforce the rule of law.

The Israeli court’s supporters see it as upholding Israel’s liberal democratic values. But its critics see a court made up of elites who are happy to undermine the decisions of the democratically elected Israeli government. Israel’s pro-court contingent tends to be left of center, while the critics of the court tend to fall to the right of the center of Israeli politics.

This past summer, the Knesset passed a judicial reform bill that sought to limit the excesses of the court. Among other things, it forbade the Israeli high court from invoking “reasonableness” to invalidate “a decision by the Government, the Prime Minister, or any other Minister.” The legislation was controversial, sparking massive demonstrations; liberal Israelis warned that it threatened human rights and democracy.

This week, the Israeli court declared the prohibition on reasonableness review invalid. The judiciary has told the legislature that it is prohibited from restraining the power of the judiciary.

The decision will doubtless be cheered by many observers, within Israel and without, who see the court as a bastion of liberal rights protection. But we should be skeptical about this kind of boosterism.

The Knesset doubtless needs its checks, for no institution is perfect. By the same token, Israel’s Supreme Court too needs its checks. An unaccountable judiciary, appointed (largely) by judges and lawyers, operating without being tethered to the text of constitutions or laws, faces its own temptations. If the Knesset cannot so much as tinker with the balance of power, who then checks the judiciary?

Israel’s current controversies about its judiciary are no assault on democracy, but a debate about the proper functioning of democracy. Israel should have a functioning judiciary, to be sure. But it should be one governed by the rule of law, not giving free rein to the policy preferences of judges.

The Israeli court’s invalidating a law restricting its authority—and during a national wartime situation, no less—might be a courageous act. But one might also wonder if it bespeaks self-protection from a judiciary enamored of its own power.