The proposed reforms to the Israeli Supreme Court that brought tens of thousands of protesters into the streets and even a rare rebuke from President Biden would make the court look a lot more like its U.S. counterpart, one of the chief architects of the changes says.
Israel is one of the few nations with a supreme court that can strike down legislation but which operates without a written constitution and whose justices aren’t selected by the elected branches of government. In contrast to the U.S. Supreme Court, Israeli justices are appointed by a committee where three sitting justices essentially have veto power over any new nominees.
The proposals by Prime Minister Benjamin Netanyahu’s Likud party and conservative supporters would place the nation’s highest court more firmly under the control of elected politicians and reduce its power to nullify legislation. Opponents say that would threaten Israel’s democracy, a charge that puzzles Simcha Rothman, chair of the Knesset Constitution, Law and Justice Committee and chief architect of the reforms.
The Israeli Supreme Court enhanced its own power through a series of decisions in the 1980s and 1990s, most critically after the Knesset in 1992 revised the “Basic Laws” that serve as a sort of Bill of Rights setting out essential principles of freedom and human rights. The high court subsequently decided, in an echo of the landmark 1803 U.S. Supreme Court decision Marbury v. Madison, that it had the power to cancel any laws that don’t comply with the Basic Laws.
“In Israel, the Basic Laws were passed by the Knesset,” said Rothman. But now the court is saying, “you cannot legislate this, because you legislated yesterday something different.”
Netanyahu’s proposal is temporarily tabled as his shaky coalition government considers its next move. But Rothman said a majority of Israelis agree some reforms are needed, even if they don’t trust Netanyahu to carry them out. The prime minister’s critics say he would benefit from any changes because it would reduce the judiciary’s independence and make it harder to pursue criminal charges against him and his cronies.
Rothman specifically rejects this claim, saying even in the most extreme situation the changes wouldn’t affect any pending cases and the party in power would be able to place at most three new justices on the court (it would expand the court from 15 to 17 justices).
“If he is trying to stop the proceedings against him, the reform is a very ineffective way of going about it,” said Rothman, a member of Religious Zionist Party.
The main impact of the proposed reforms would be to reduce the ability of the Israeli Supreme Court to influence policy, which it does through its self-proclaimed power to nullify laws as well as an active docket that handles thousands of cases a year involving often-mundane government decisions. Unlike the U.S. Supreme Court, which hears less than 100 cases a year that are almost entirely limited to appeals from lower courts, the Israeli Supreme Court has original jurisdiction over any challenge to actions by public authorities.
Also in contrast to the U.S., the court has granted citizens extremely broad rights to file cases, known as standing. In the U.S., plaintiffs must show they have a concrete stake in the outcome. In Israel, the Supreme Court has decided they need only establish they have “an interest” that is shared by many others.
“Just imagine what happen in the U.S. if someone would say `I don’t think Secretary Blinken is doing such a good job,’” said Rothman, who studied public law at the University of Tel Aviv and Northwestern University. “In Israel, the court will hear the case.”
Critics of the reforms fear they would strip Israel’s judiciary branch of its independence and make it a tool of whichever party is in control of the Knesset. Rothman said that’s how democracy works. The court itself was created by the Knesset in 1953 and until the early 1990s wasn’t as frequently involved in cases that hinged upon political questions.
Now it nullifies one or two laws a year, a small number except it includes highly controversial cases involving illegal immigration and prosecution of terrorists. The court this year also invalidated Netanyanhu’s appointment of Aryeh Deri to a ministerial post, in what conservatives said was egregious meddling in the operations of the executive branch.
Rothman said the Knesset, an elected body, should be able to pass laws that are in the interest of constituents without the risk of having them nullified by the unelected and arguably self-appointed justices of the Supreme Court. Under a law passed originally in 1953, the justices are selected by a 9-member committee that includes three sitting justices, two cabinet ministers, two Knesset members and two representatives of the Israeli Bar Association.
“In the US, the court is acting on behalf of the Constitution, which is a document that was accepted in a democratic way,” Rothman said. “In Israel we don’t have a constitution, so when the court is canceling a law, it is doing what it wants.”
The proposed reforms would put the nominating committee under the control of elected politicians. That’s a concern to Netanyahu’s opponents, but similar to the U.S., where the President appoints Supreme Court justices with the assent of the Senate. It would also allow the Knesset to override the cancellation of a law by majority vote.
Rothman also wants to change the powers of the Attorney General, who is appointed by the government but is considered a non-political official who acts independently of the executive branch. That leads to situations that would seem unusual in the U.S., such as when the current AG declared Netanyahu can’t be involved in judicial reform because of his criminal trial. In the U.S., the attorney general serves at the pleasure of the President. Removing the AG can be politically dangerous for the President, but the AG can’t order the chief executive what to do.