Breaking down Israel’s fight over Netanyahu’s judicial reforms

This week, in response to mass demonstrations and a nascent general strike, Israeli Prime Minister Benjamin Netanyahu delayed legislative consideration of his right-wing coalition’s judicial reform agenda. Both sides in the acrimonious battle over that plan say they are defending democracy, which is a misleading way to frame an issue that should be familiar to Americans.

The controversy, which Netanyahu said threatens to become “a civil war,” is really about what sort of democracy Israel should be — in particular, how much power judges should have to override the will of the majority. While Netanyahu’s allies are right that judicial review is a constraint on democracy, their opponents are right that unconstrained democracy is a recipe for tyranny.

More than two centuries ago in Marbury v. Madison, the U.S. Supreme Court established the principle that the judicial branch can override legislation that is inconsistent with the U.S. Constitution. “It is emphatically the province and duty of the Judicial Department to say what the law is,” Chief Justice John Marshall declared, and judges therefore must decide what happens when they “apply the rule to particular cases” and find that “two laws conflict with each other.”

The Israeli Supreme Court reached a similar conclusion in the 1995 case United Mizrahi Bank v. Migdal Cooperative Village, asserting the power to overturn statutes that conflict with Israel’s “basic laws.” Since the 1990s, Israeli law professors Amichai Cohen and Yuval Shany note, the court “has invalidated 22 laws or legal provisions” based on “its new powers of judicial review.”

Among other things, those cases involved treatment of asylum seekers, discriminatory tax rates, expropriation of Palestinian land, religious exemptions from military service and due process for detainees. But the impact of judicial review extends beyond those specific decisions, Cohen and Shany observe, because the question of whether legislation can survive it “has become a dominant consideration in the legislative process.”

This is the “constitutional revolution” that Netanyahu’s coalition members resent, although that term is misleading, since Israel has no formal constitution and the Knesset, Israel’s parliament, can amend its basic laws at will. In response to what they see as undemocratic interference by unelected judges, legislators have proposed various contentious reforms.

The proposals include legislation that would guarantee the government a majority on the committee that selects judges, restrict the circumstances in which the Supreme Court can invalidate statutes, eliminate the precedential force of such decisions and allow the Knesset to override them by a majority vote. In practice, Cohen and Shany say, those changes would mean “the end of judicial review of Knesset legislation.”

The plan’s supporters think it’s about time. “At school they told me that Israel is a democracy,” conservative commentator Evyatar Cohen wrote this week. “They said that as soon as I reach the age of 18 I can go to the polls and influence the future of the country, its character and goals.”

Newspaper columnist Nadav Eyal, by contrast, welcomed the pause that Netanyahu announced. “Israeli democracy may die one day,” he wrote. “But it will not happen this week, nor this month, nor this spring.”

Both of those takes elide the reality that untrammeled majority rule is a threat to civil liberties. Netanyahu himself has recognized that point.

“A strong and independent justice system,” he noted in 2012, is the difference between governments that respect “human rights” and governments that merely pay lip service to them. He promised he would “do everything in my power to safeguard a strong and independent justice system.”

Netanyahu, who faces corruption charges that will be adjudicated by that system, now presents himself as a mediator between his coalition partners’ demands and the concerns that have driven hundreds of thousands of Israelis to the streets in protest. The question is not only whether he can broker a compromise but whether it will preserve the safeguards he rightly described as essential to the rule of law and the protection of individual rights.

Jacob Sullum is a senior editor at Reason magazine.

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