Americans need not be reminded of the preeminent power of the Supreme Court. Whether recognizing same-sex marriage or expanding states’ rights to restrict abortion, the Court recognizes the bounds of the Constitution that created it.
Imagine if it didn’t.
Welcome to Israel; a parliamentary democracy without a written constitution in which quasi-constitutional laws - the Basic Laws - can purportedly be struck by the court, according to itself. (We will return to the “quasi” aspect in a moment.)
Don’t worry, Americans would say, the elected politicians can replace the Court's members over time - a potent democratic tool given how frequently Israel seems to call elections (a parliament that should last four years has historically averaged about two and a half). Alas, the Israeli Supreme Court controls the appointments of its own replacements. Well, amend the Constitution (or Basic Laws), they will respond. A great idea, as it were, except the Israeli Supreme Court thinks it can strike those laws down too. In fact, it, has de-facto struck a constitutional amendment.
The new Israeli government and the Knesset's Constitution, Law, and Justice Committee, which one of the authors heads, are providing critical constitutional limits to an out-of-control judiciary. The purpose: to promote democratic principles, not to harm them.
Due to the last election's outcome, critics on the left are spinning the media into a “fascism frenzy.” Naturally, they don’t mention that the prior coalition governments, dominated by both Right- and Left-wing parties, sought to rectify many of these same judicial shortcomings. (This includes the last government, led by former prime ministers Yair Lapid and Naftali Bennet.)
All the current reforms are designed to enhance Israeli democracy, offering the people a far greater say in our laws than that afforded under the current judicial oligarchy. A brief primer on Israeli “constitutional” law demonstrates why.
“Regular” laws and Basic laws only need a simple majority of legislators present to pass. In theory, either type of law might pass by a vote of 2-1 of the Knesset's 120 lawmakers. The reforms allow for a Basic Law passed with more than 61 votes to include a requirement that 61 votes are needed to amend or infringe upon it in the future. This meets the oldest of English common law standards and then some. “Acts of parliament derogatory from the power of subsequent parliaments bind not.” 1 W. Blackstone, Commentaries on the Laws of England 90 (1765).
In contrast, the Israeli Supreme Court has created its own ordering system, found nowhere in our history or in any parliamentary democracy.
For example, the Human Dignity and Liberty Basic Law was passed with only 31 votes – not even a quorum of half the Knesset voted. Nonetheless, this was one of the two laws which Israel's Supreme Court first decided to declare 'constitutional' in nature of its own accord. Thus, after elevating it, they have used it to strike laws passed even by a majority and even super majority of the Knesset.
Critics point out that in comparison to America’s constitutional amendment and repeal process, Israel’s democratically elected representatives have a far lower barrier to altering the composition of its Basic Laws. They thus decry that, rather than be concerned about the self-anointed Israeli Supreme Court’s dominance and unaccountable discretion, the proposal grants the ability of the majority to dominate minorities. These concerns are worth addressing.
The reforms seek a middle ground to preserve constitutional protections given Israel's own remarkably fractious democratic process. First matters first, the reforms create constitutional limits on the Court’s ability to strike Basic Laws without taking away its ability to interpret them. Absent that reform, the Israeli Supreme Court has a carte blanche to act as Emperor, giving itself the power to strike Israel's version of a constitutional amendment. Imagine if the U.S. Supreme Court had decided that the 21st Amendment ending Prohibition was barred by the 18th Amendment enacting it 14 years earlier because the repeal didn’t fit within the constitutional structure. That’s crazy, but that’s the problem the reforms solve.
No institution gets reined in quietly. The immediate obstacle to overcome is a seemingly predestined spat between the Knesset and the Judiciary. Oh, to be a fly on the wall when the Israeli Supreme Court considers striking the upcoming Basic Law barring it from striking Basic Laws without citation to a constitution. As assuredly as that conversation will happen, so is the result when the justices realize they cannot enforce an edict with its desired outcome.
To avoid an overreaching and symbolic gesture by the Court (and the histrionic press uproar it would engender), the reforms nod to the potential wisdom of the Court in another area - particularly the Knesset's deference to the Court's power to interpret the Basic Laws.
Whereas the Knesset is legally entitled to dismiss every constitutional interpretation battle with the Court, the reforms create a more tentative step, respectful to both the judiciary and the people. The Court's decision to overturn a law is only held in abeyance while the Knesset rallies a hard-bargained 61-person majority to re-legislate a law that may have previously passed with only a simple majority. The new law that emerges will allow the legislature to fix what it finds to be an incorrect Court interpretation, at least for a short time. We dub this an “Interpretive Law.”
The “Override Clause” creates a “default-presidential-pocket-veto-without-a-president.” The veto lies not with the Prime Minister-of-the-day but with the Israeli people. Even if a new Knesset can’t muster the 61 votes to end an Interpretive Law, the mere fact that a new government has been formed ends its effect within 1 year. Then, the Judiciary is free to interpret again as it pleases. Americans may recognize that the Override Clause borrows from an American executive power concept. Fear not, anti-fascists. It hands this power to Israel's voters, then by default, to the Judiciary.
Or, put another way, a challenged judicial decision is subject to temporary suspension while the people sort out the difference of opinions to decide on the law’s future. Critics again are in an uproar that the people should be able to determine which laws stay and go - first through their representatives and then directly themselves when electing new ones.
That's power to the people.
For the reform critics whose logic is coterminous with those who attack Israel’s record on human rights, their issue is not with the judicial reforms but with the voters themselves.
That’s a topic for another day.
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MK Simcha Rothman is head of the Knesset’s Law, Justice and Constitution Committee and author of "The High Court Party." Edward "Coach" Weinhaus, Esq. runs judicial watchdog AbusiveDiscretion.com covering judicial misconduct nationwide and is a Lecturer at UCLA.