Israel’s Judicial Reforms an Incomplete Good
On September 12, all 15 of Israel’s Supreme Court justices convened to hear a case involving the initial phase of a recent judicial reform passed by the government in July. For months, Benjamin Netanyahu’s political coalition has fought with opposing groups over these reforms. Mass protests have continued, threatening worker strikes if the proposals become law. Concerns loom over the potential consequences of the reforms, including the weakening of the court's ability to serve as a check on the government and the acceleration of a right-leaning trend in the judiciary that began almost ten years ago.
Despite these concerns, Netanyahu’s reforms would move Israel’s political structure in a good direction. For instance, one reform would deny the judiciary the power to void a government action by saying the government acted unreasonably. Another would limit its control over selections for ministerial and cabinet posts, a power it used to reject candidates in the past, including an interior and health minister earlier this year.
As we know here in the United States, the ability to void government actions as “unreasonable” gives judges power that too easily strays beyond the judicial authority courts exist to exercise. The judicial power, by nature, seeks to interpret the law to resolve disputes about that law. Exercising that power assumes that a law already exists. It also assumes that judges submit to that existing law, conforming their interpretation and application to its dictates.
The “reasonableness” standard allows judges to claim fidelity to these concepts without actually doing so because “reasonable” is a vague term. It does not establish concrete, objective markers by which to make assessments about government actions. The term does not stem from a law passed in Israel that could give it more definition. Instead, the judges imposed the term on the Israeli system by judicial fiat. That is why the reasonableness standard devolves into deciding based on “what seems best or right to me.” That approach hardly submits a judge’s judgment to the dictates of law. Instead, it replaces the law with a judge’s arbitrary preferences.
As in the U.S., the people do not popularly elect judges in Israel. The people, therefore, cannot effectively check judicial impositions of judicial views. The judiciary of Israel has used this power, which has grown dramatically since its first unrestrained assertions in the 1990s, to thwart the people’s will and the workings of the other governmental institutions. Sound familiar?
Moreover, judges exercising control over ministerial and cabinet appointments exacerbates the same problems. While the reasonableness standard gives judges control over how the entire government acts, this authority lets them manage personnel decisions in other political institutions. Personnel is policy: the person who occupies an office always proves crucial for how faithfully and effectively the government pursues its goals. A judge could have a say if the government violates its laws in appointing a specific person to a specific post. But the reasonableness standard, combined with this oversight authority, has given judges control over who fills government posts. It denies the capacity of officials to select who they think is best for certain offices.
Thus, these particular reforms make perfect sense. Much of the opposition to them, while veiled in talk of preserving democracy, really stems from a desire to perpetuate rule by unelected judges.
However, these reforms point to a broader problem that Israel would be wise to consider addressing. Underneath these battles rests the fact that Israel does not have a proper constitution. It has a set of “Basic Laws” which the judiciary has sometimes treated as like one. Yet it is not clear these laws should serve that function; they are part of a coherent whole. Thus, they have debated status as a kind of fundamental law and lack the systematic nature a consciously written constitution seeks.
A well-written constitution would make progress toward resolving the political conflicts inflaming these judicial reforms. It would create an objective standard of fundamental law by which judges could assess the legitimacy of government actions. That standard would keep judges from ruling arbitrarily. They must point to a real text giving real governmental powers and listing real individual rights to justify their decisions. But it also would help address a worry voiced by opponents of these reforms. Those opponents say the changes would destroy any means to stop the tyranny of the majority, thus allowing the government to run roughshod over the human rights of those who didn’t win the last election. But a constitution creates a higher law than ordinary legislation that judges tasked with applying the law could legitimately assert against contrary government actions. A well-written constitution would also give objective standards for holding government office while respecting the independent authority of distinct political institutions. A court could stop an appointment that violated their constitution. But otherwise, the other Israeli institutions should be free to make their best selections, subject eventually to the people’s vote in future elections.
We should watch how the judicial reform debate plays out in Israel. It matters because Israel remains an important ally and the most democratic regime in its region. It also matters as we consider the good of certain political principles in our government, especially rule by the people, protection of rights, and the role of constitutions in both.
Dr. Adam Carrington is an Associate Professor at Hillsdale College.
