Protesters Against Israel’s Judicial Reforms Could Create a Self-Fulfilling Prophecy

The first part of two columns: There is no perfect solution to the paradox of appointed judges overruling elected legislators, but some strike a better balance than others.

A strident debate is occurring in Israel about the role of the judiciary and democratic governance. Virtually every democracy debates this issue periodically, because there is an inherent conflict between majority power and minority rights. The traditional role of non-elected courts is to impose a check on politicians who are elected by the majority.

Whenever courts overrule decisions reached by the majority, there are complaints. This has been true in the United States since the days of Thomas Jefferson and John Marshall. The United States Supreme Court’s decision in the Dred Scott case was one of the causes of the Civil War, and the high court’s decision in Brown vs. Board of Education led to the widespread demands for the impeachment of Earl Warren throughout the South.

Sometimes, history has proved the courts to be right, as in Brown; many times history has proved the courts to be wrong, as in Dred Scott, the detention of Japanese Americans during World War II, and the compelled sterilization of the mentally retarded in the 1920s. There is no perfect solution to the paradox of appointed judges overruling elected legislators, but some strike a better balance than others. 

Israel is now in the midst of one of the most contentious debates in its history. Israel is different from the United States in that in its foundation it was far closer to being a pure democracy than our Republic. The Knesset is a single house legislature. The executive is part of the legislature and serves at its will.

Israel, moreover, has no written constitution. Its only mechanism for checks and balances is the judiciary, which itself is a creature of the Knesset and thus subject to its control and limitations. Throughout its 75-year history, and especially since the 1990s, the Israeli Supreme Court has served as an effective check on the excesses of the Knesset, the Prime Minister, the military, and other institutions of government.

Some think that its checks have been excessive. This is especially the attitude among those who support emerging right-wing populism, reflected most dramatically in the most recent election and the current government, which includes some religious and nationalistic extremists.

They oppose what has been called the “judicial revolution” of the 1990s and are seeking a counter “revolution” of their own that would significantly curtail the powers of the Supreme Court. The majority of Israelis seemed to be somewhere in the middle, opposing both the extreme reforms of the new government and what many regard as the excesses of the earlier judicial revolution.

As an outsider who has been deeply involved in defending Israel for more than half a century, I am concerned about this clash of extremes and have been seeking to propose compromise resolutions that are acceptable, if not desired, by both sides. I’ve spoken to leaders of both camps as well as those in the middle.

These include: Prime Minister Netanyahu; a former Supreme Court president, Aharon Barak; President Isaac Herzog; Knesset members Itamar Ben-Gvir and Bezalel Smotrich; and many academics. The law professor in me loves this debate.

Yet the divisions that it seems to be causing, or at least reflecting, are worrying. I hope I can contribute even a small amount to helping resolve or narrow the differences, since I have close friends on both sides, and the rights and wrongs are not limited to one side. 

What intrigues me most is why the world is paying so much attention to what is essentially a domestic Israeli dispute. The world paid little attention when, here in America, left-wing Democrats demanded the packing of the Supreme Court and limitations on the terms and powers of the justices following the controversial overturning of Roe v. Wade.

Even when President Biden appointed a Commission to study these issues and make recommendations, the international community ignored it. Yet the world seems obsessed with the Israeli debate, as it does about so many other issues relating to Israel.

This obsession is part of the dangerous double standard that the international community has long imposed on the nation-state of the Jewish people. The centrality of Israel to the major religions may explain the focus of the adherents to these faiths, but it does not explain the obsession of the secular left.

Nearly everything it does generates criticism from international bodies and organizations. These groups devote more attention to Israel than to the rest of the nations of the world combined. This international attention is often used and misused by Israeli advocates against their opponents.

In the current debate, opponents of the judicial reforms have argued that if they are enacted it will cause international businesses to leave Israel. This may well become a self-fulfilling prophecy, as economics is often a question of perception rather than reality.