Tuesday, March 21, 2023

The Israeli Supreme Court has arrogated to itself all of the powers of the US Supreme Court with none of the corresponding limitations, restrictions or burdens.

Having practiced law in the U.S. for more than 35 years and appeared before the U.S. Supreme Court, I undoubtedly am biased in my belief that America has the world’s premier—although not perfect—judicial system.

On the one hand, our Supreme Court has enormous power. Among other groundbreaking rulings, it has compelled racial integration of public schools, determined issues that decided the presidential election of 2000, and most recently concluded that there exists no constitutional right to terminate a pregnancy (and therefore that each state could decide the issue for itself).

On the other hand, the Supreme Court has very limited jurisdiction, imposes strict requirements on who may have standing to sue, only takes a case if four of the nine justices agree, and must always act within the constraints of our Constitution.

We speak glowingly of the brilliance of our founding fathers in creating a multi-branch system of government that includes our judicial system. What many fail to recognize, however, is that America’s founders held deeply conflicting views on how to govern the nascent republic. Their debates, most famously between Alexander Hamilton and Thomas Jefferson, often centered around the appropriate balance between the rights of the state and the rights of its citizens. In arguments that may sound familiar today, Hamilton feared anarchy and pushed for a strong federal government, while Jefferson feared tyranny and pushed for more power in the hands of the people.

What matters most about these conflicting views is not their respective merits, but rather that they were compromised and settled within a construct that became the United States Constitution. On the judicial front, the Supreme Court was given the extraordinary power to overturn an act of Congress, but only if that act violated the Constitution (and never because the law in question violated the justices’ personal sensibilities).

Judges were given significant independence by enjoying lifetime appointments, thus being free of political influence. But they were appointed by presidents, all of whom were accountable to the public, and subject to confirmation by the U.S. Senate. And judges could be impeached by Congress.

America’s founders were all endowed with keen intellects, diverse viewpoints and very healthy egos. But first and foremost, they were patriots who put their differences aside to create a grand bargain that led to our stunningly successful republic.


Israel’s Supreme Court Must Be More Like the U.S. Court

It’s time for Israel to do the same. Those who believe that the Israeli Supreme Court has too much power are certainly not outside the mainstream of judicial thought. Israeli Supreme Court judges are selected by a committee, the majority of whom are not politically accountable, and the Supreme Court itself even has veto power over new judicial appointments.

And because Israel lacks a constitution, there is no textual discipline (not even “basic laws,” which can be repealed and lack constitutional integrity) that prevents judges from deciding matters based upon personal views and philosophies. Those who claim that limiting the power of the Israeli Supreme Court is an attack on democracy are exactly wrong—it is the Knesset, not the Court, that reflects the democratic will of the Israeli people. Indeed, it is the court that puts a brake on the exercise of that will.

It can be argued that there needs to be some brake on popular will—that nations should hold some values sufficiently sacrosanct that even the legislature cannot change them (or at least not by a simple majority). That is not the practice, however, in numerous parliamentary democracies such as the U.K. (whose governmental structure most influenced Israel’s founders), where the legislature reigns supreme and the Supreme Court only may interpret but not overturn a law of the parliament.

In contrast, America permits the Supreme Court to engage in judicial review and to overturn Acts of Congress, but only within the limits set forth in our Constitution.
Without a constitution, it is awfully difficult to devise a fair methodology for the Israeli Supreme Court to engage in the type of judicial review that we have in the U.S. Indeed, the Israeli Supreme Court, prior to 1992, did not consider itself to have the power to overrule acts of the Knesset (following the U.K. model).

The Israeli Supreme Court has arrogated to itself all of the powers of the U.S. Supreme Court with none of the corresponding limitations, restrictions or burdens. The Israeli Supreme Court also has far exceeded the powers that most parliamentary democracies afford their courts. It’s a serious issue, and those who seek change in good faith should not be assaulted by other leaders who should know better.

There is no inherently right or wrong way for Israel to tackle this issue, although I would agree with those who say that overturning an act of the Knesset—that is, negating the will of the majority—ought to be an extremely rigorous process that is rarely implemented. Reasonable people can differ but still come to a fair conclusion on the necessary legislative thresholds to protect certain laws and the judicial thresholds to overturn them, along with a process for judicial appointments that is more responsive to the public will.

This should be done on the basis of good faith efforts to achieve a national consensus. Unfortunately, the pursuit of those efforts is completely undermined by the hyperbole exhibited today in Israel’s public square.

As one who knows Israel as well as any outsider, I see the current path as dangerous and untenable. The intellectual dishonesty permeating many of the arguments is quite harmful, and the shrill rhetoric is breeding internal disunity and external embarrassment. There needs to be more adults in the room and fewer (or maybe none) on the street.

There is a wise paradigm, “Be careful what you wish for.” Judicial reforms achieved without a meaningful consensus could easily be reversed by the next government, or, worse still, maintained by the next government and deployed to take Israel in the wrong direction. I have learned the hard way how quickly the political winds change course.

A sensible, practical and predictable legal system is essential to good government, justice and prosperity. Israel deeply deserves such a system and needs to carefully balance the “anarchy versus tyranny” issues just as Hamilton and Jefferson did three centuries ago. This American is rooting for Israel in that effort and hoping for a grand bargain that stands the tests of time and politics.

The writer is a former U.S. ambassador to Israel.

By David Friedman/Jpost.com


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