Put Israel's Government Back in Control of Our Courts

I generally object to the Americanization of Israeli institutions, but the American judicial review of legislation is a system of government worth importing.

Amiel Ungar
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The U.S. Supreme Court in Washington, DC.Credit: AFP
Amiel Ungar

The incoming government's efficacy will be quickly tested when it attempts to restore a balance between the branches of government that in recent years has tilted toward judicial supremacy and the excessive empowerment of legal bureaucracy. High-powered opponents are already mobilizing to thwart a reversal of the trend, which is embodied in two bills being proposed in the talks to form a coalition. One bill would allow the Knesset to override a court decision striking down its legislation, and the other would change the judicial selection process by diluting the power of sitting Supreme Court justices on the panel.

Judicial review of legislation – a familiar feature of the American system – is not native to the Israeli system, which inherited the British tradition of parliamentary supremacy. For example, in the Shalit case, Benjamin Shalit, a naval officer, sought to register his non-Jewish wife as a Jew with the Interior Ministry. The court voted in his favor by a 5-4 majority, and his two children were registered as Jewish. The Knesset then clarified that Judaism was acquired solely by birth or conversion, and not simply by parental declaration, and when Shalit sought to register his third child as Jewish, the court, citing the new legislation, turned him down.

The situation changed with passage of the Basic Law: Human Dignity and Liberty, which was enacted by a Knesset plurality of 32-21 and 23-0 respectively (i.e. less than half of the 120 member body) on March 17, 1992. This law can be amended by a simple Knesset majority – an indication that it was never intended to enjoy quasi-constitutional status. Nevertheless, this law became the cornerstone of former Supreme Court President Aharon Barak's "constitutional revolution." The flimsy constitutional grounds for Barak's sweeping judicial activism induced Professor Richard Posner of the University of Chicago's Law School and an appellate court justice to term Barak's constitutional revolution enlightened despotism.

As a result of Barak's revolution, Israel now has full-blown judicial review. This has resulted in the court striking down Knesset legislation designed to discourage the flow of illegal immigration twice – even after the Knesset sought to meet the court's objections half way. There was even a case where a Magistrate's Court judge, acting on his own, voided Knesset legislation.

Defenders of the Supreme Court in Israel claim that it has used its power of judicial review sparingly. This argument, however, ignores the Sword of Damocles effect of the court's powers. The legal advisers in Israeli ministries frequently head off legislation due to the threat that it will be struck down by the court. If we were talking about legality, this would not be a bad thing, but since Barak and co. mined the system with mushy terms like "proportionality," it's impossible to know what the court will decide.

It is entirely fair for the Knesset to reclaim the powers that were usurped from it.

Judicial review, of course, is a necessary check on government arbitrariness, but if the judiciary is awarded a check on the other branches, it too must be checked by a judicial appointment process that reflects changes in the political environment. This is what the Israeli left, whom Tel Aviv University Professor Menachem Mautner calls the liberal former hegemons, want to avoid. Having been generally relegated to the opposition since 1977, they have turned the Supreme Court into their political bastion.

One reason David Ben-Gurion rejected an American-style constitution with judicial review was his fear of the New Deal scenario: when a conservative majority on the Supreme Court struck down key elements of the Roosevelt Administration's New Deal legislation for coping with the great depression. The impasse that resulted between the Roosevelt Administration and the conservative court majority nearly resulted in a constitutional crisis. Fortunately, the situation was remedied by the Roosevelt administration's ability to appoint new justices and flip a conservative majority to a liberal one. Voila! Similar legislation was now deemed constitutional.

However, had Roosevelt's America had the sui-generis judicial selection system of Israel – where the three justices on the panel could stymie the appointment of justices who did not share their political or judicial philosophy (or at best condition their appointment on the appointment of their favorites) – the conservative majority could have effectively cloned itself in perpetuity.

Justices are not compact disk players who, when a disk is inserted, replay the encoded music in nearly identical fashion. One judge's opinion can sound like an aria; another's can sound like hip-hop, because each judge brings to the table his own value system. In the current cases before the U.S. Supreme Court on the death penalty and homosexual "marriage," we can clearly see the dueling outlooks.

The Israeli left, to justify its chokehold on the court, must maintain that its values and the rule of law are synonymous. Alternatively, it raises the dangerous argument that judicial appointment must not be entrusted to democratically elected "politicians."

While I emphatically reject the wholesale import of American institutions to Israel (and particularly a presidential system), on the issue of the court's relationship with other branches of government, the American system has the advantage of simplicity. Judicial review of legislation is basically unlimited (although judicial restraint is much more pronounced), and can only be reversed by the arduous process of constitutional amendment. In return, the judicial selection process is entirely in the hands of the executive and legislative branches. This would be preferable to the piecemeal solutions currently being mooted, which would tackle the problem by limiting judicial review and downsizing the judiciary's power in the judicial selection process. Despite these misgivings, the proposed legislation would still constitute an improvement over the current situation.

Amiel Ungar is a political scientist.