A bad argument against Israel's judicial reform bill
Yesterday, I wrote about how the enactment of pro-democracy legislation in Israel — legislation that bars unelected judges from striking down as “unreasonable” laws passed by the democratically elected Knesset — has led to mass protests and threats by military personnel not to report for duty. The protesters claim the new pro-democracy law is a threat to Israel’s democracy.
This claim seems Orwellian to me. Can it be supported by any rational argument?
The Washington Post attempts to present one. It would have us believe that the judiciary’s ability to strike down laws as unreasonable is pro-democratic because “the Supreme Court. . .serves as the sole check on the [Israeli] government.” In the U.S., the argument goes, Congress (sometimes) provides a check on the president. But in Israel, the Knesset elects the president, so that the two branches are basically just one. This supposedly leaves the judiciary as the only check.
This argument won’t fly for several reasons. First, Israel’s parliamentary democracy is hardly unique. This form of government, in which the people elect the legislature and the legislature elects the prime minister, is common. Yet to my knowledge, no other democracy gives the judiciary the power to void laws because unelected judges deem them unreasonable.
Second, there is a powerful check on the Israeli government: the Israeli people. Since 2018, Israel has held five elections — two in 2019, and one each in 2020, 2021, and 2022. If the government behaves unreasonably, the people have ample opportunity to check, and checkmate, it.
Third, the Israeli Knesset does, in fact, check the executive. Netanyahu rules by virtue of a coalition, and his margin in parliament is so thin that nearly every member of the body — all of whom are democratically elected — can check him.
Most parliamentary majority margins in recent times have been similarly slim. And if, by chance, an Israeli prime minister ever again has a large majority made up almost exclusively of members of his own party, that will mean that Israelis want to give him or her broad power without having that power constrained by judges who think the ruling party is legislating unreasonably. (Even in the U.S. there will be times when all three branches are in harmony because one party is much more popular than the other. The outcomes produced won’t be anti-democratic.)
In fact, another article in the same edition of the Washington Post promotes the view that Netanyahu didn’t want to go forward with the reform bill as passed. It suggests that he was forced to support the legislation by right-wing coalition members.
Even the possibility that this is the case shows the Knesset can constrain the prime minister. The Israeli left and the Washington Post don’t like the way the Knesset may be constraining Netanyahu, but that’s beside the point.
Leftist critics could shift gears and contend that the power of small factions within a coalition to drive Israeli policy is an argument in favor of giving judges the power to nix extreme legislation enacted as a result. But why should unelected judges be able to overturn laws because they don’t like democratically produced outcomes? And why should they be trusted to determine what is extreme?
As I noted yesterday, the Israeli Supreme Court has used its power to force the firing of senior officials including cabinet members; to block and delay military operations; to raise and lower taxes and welfare benefits; and to halt major foreign-policy initiatives. This isn’t a Supreme Court that’s limiting itself to fighting extremism. It’s a Supreme Court that’s usurping executive and legislative power.
One last point. Netanyahu’s critics are having trouble keeping their story straight on the prime minister’s motive for supporting the judicial reform measure. As noted, the Post strongly suggests that Netanyahu was indifferent about the measure and adopted it only to appease certain coalition members. It quotes opposition members who hold this view. However, the anti-Netanyahu opposition also claims that he pushed judicial reform to protect himself from criminal prosecution.
Netanyahu can be an evil genius manipulating the law for personal reasons or he can be “the doll of messianic extremists” (in the words of opposition leader Yair Lapid). I don’t see how he can play both roles in the same drama. I doubt he’s playing either.
In the end, though, it doesn’t matter why Netanyahu backed judicial reform. This is a a sound, pro-democracy piece of legislation.