As some of you know, I belong to a men’s group that meets (sometimes on Zoom and sometimes now again in person) every Thursday morning. There are about 50 members and about 30 show up each week to hear one of the members make a presentation.
I am going to talk on the proposed changes to the Israeli Supreme Court next month, and am beginning to put together my material.
Looking at it from an American perspective, one needs to keep a couple of things in mind. First, while the United States has a federalized court system, with each of the 50 states (and DC) having their own courts, in Israel there is just one court system. Secondly, where our system has three quite separate governmental branches (executive, judicial and legislative), and where our legislative branch is bicameral with each chamber often controlled by different parties, Israel in effect has two governmental branches only. It has a parliamentary system, where the party (or coalition) which controls the Knesset also controls the executive branch, and its legislature is not bicameral, but has only one chamber. Thirdly, the United States has a written Constitution, Israel does not. Instead, the Knesset gets to classify certain laws as “basic laws”, which in theory (and largely in practice) are a bit more sacrosanct as other laws, but do not rise to the level of a constitutional provision.
In the United States, the Supreme Court (and in fact the lower courts as well), as a matter of regular practice, review decisions of the legislature and either bless them as lawful and constitutional, or unconstitutional. The Supreme Court in Israel has been doing the same.
How did the United States courts, our judicial branch, obtain the power over the legislative branch (or, when it comes to, for example, executive orders or administrative regulations) over the executive branch? You might think that the Constitution set it up that way, but that is not the case. In 1803, The United States Supreme Court, under then Chief Justice John Marshall, simply gave itself that power in deciding the case of Marbury v. Madison. And it has maintained that power until today. And that’s it.
Similarly, in Israel, the Court took upon itself to determine when a law, or an administrative decision, abrogated a Basic Law.
There is little talk about curbing the authority of the Supreme Court in this country, other than the occasional polemics about whether the number of justices should be changed. But in Israel today, there is a lot of talk about limiting the authority of the Supreme Court. In fact, the current new right wing government, under Benyamin Netanyahu is hell bent on accomplishing radical changes. And radical they would be.
In the United States, we certainly do not have a perfect system, and we can all too easily see how the Court becomes politicized in many ways. In Israel, this politicization of its Court was less possible, because the method by which judges have been selected has been less political. Justices are nominated by the President and approved (or struck down) by the a mere majority of the Senate. When the Senate is controlled by the party of the President, it is easy to see how political allies could be appointed to the Court. And this is what has occurred, especially recently.
In Israel, this does not occur. There is a body of 9, who selects new judges for the country’s Supreme Court. Only 4 of the 9 are representatives of the party in power. 3 of the members of the committee are current judges of the Court and 2 are representatives of the Israeli bar association. The Court, therefore, is by design, not political per se.
But the change proposed by the government would create an 11 member body to select Court members. You would still have the 3 current Supreme Court judges on the committee, but the bar association would be eliminated, and all of the remaining 8 members would be representatives of the current government. Quite a change, as you can see.
Similarly, the Court would no longer have complete authority to strike down laws passed by the Knesset, or administrative orders of the Executive. Under the proposed new structure, the Knesset, again by simple majority vote, could simply override any such decision of the Courts. While the precise mechanism for this is a bit complicated, generally any such override would last for 4 years, when a new Knesset could either extend or reverse it.
Israel is a land of many delicate issues. Issues of settlements in the Occupied Territories, issues of Arab civil rights within Israel proper, issues of religious freedom, issues of free speech, to name just a few of the more important.
You can see how this change, with a right wing government in control, whose coalition depends on some of the more extreme elements of Israeli political thinking as to the West Bank and as to religious freedom, could cause panic in Israel and in the Diaspora.
The government, by the way, counters these fears by saying that the current system, which gives unbridled authority to unelected judges over the elected Knesset is undemocratic, and it is time to let the people’s votes count. They say that this problem has become more troublesome because the Court has become more and more active and acts as an unelected legislative body. They also point to Court systems other than the Israeli and American ones, where Courts have limited abilities to alter laws of legislative bodies; these systems include those of Canada and the United Kingdom, just to name a few. And the Courts in these countries seem to operate successfully. Is there any reason why these systems would not work in Israel?
OK, this is enough for a teaser. I may post more after I complete my presentation next month.