Israel and the Debate Over the Role of the Judiciary in Democratic Government

Israel’s current—and deeply divisive—debate over changes in the role of its Supreme Court raises questions for every democracy about the proper role of the courts.

In every democracy, governments derive their power from winning elections. From that common point on, differences are profound: What restraints, if any, are placed on pure majority rule, and conversely on judiciaries that restrain the majority’s preferences? What are the checks and balances that guarantee democratic rule but equally protect minority rights?

The Constitution and Supreme Court in the United States

A few examples will demonstrate that each democracy works differently. In the United States, limits on the power of the majority are extensive and formal (rather than based on tradition or unwritten rules). Power is divided between the federal government and state governments, and in the federal government among the three branches. Rules are set by a written constitution that requires the agreement of three-quarters of the states and two-thirds majorities in both houses of Congress to amend. The president can veto legislation and an override of the veto requires a two-thirds vote in both houses of Congress. The Supreme Court can strike down legislation as unconstitutional, and its ruling is final, but justices are themselves chosen by the political branches: they are nominated by the president and require Senate confirmation.

The Constitution and Supreme Court in Canada

Canada has a written constitution, though it is explicitly based in part on the British constitution, which is unwritten. In Canada the prime minister appoints Supreme Court justices, but the federal parliament and provincial legislatures can, by simple majority vote, override Supreme Court decisions for a limited number of years. After that time period, the ruling comes back into effect unless the legislature acts again to stop it. This is called the “Notwithstanding Clause” and is Section 33 of Canada’s Charter of Rights and Freedoms. As a description in the Harvard Law Review blog put it, “by finding a compromise between the fallibilities of majoritarian decision-making and unaccountable judiciaries, section 33 might guard us from the most dangerous excesses of each.”¹

The Constitution and Supreme Court in the United Kingdom

In the United Kingdom, where a supreme court was established only in 2009, an independent selection committee recommends to the minister of justice candidates for appointment to the court. Due to parliamentary sovereignty, the court does not have the power to strike down laws that Parliament has passed. It can declare laws incompatible with certain rights of citizens, but they remain in force unless Parliament acts. The court can strike down some official actions, for example administrative actions by public agencies, and rule against the government in individual cases.

The lack of a written constitution is rare in democracies. As Robert Blackburn, professor of constitutional law at King’s College London, explains:

For most people, especially abroad, the United Kingdom does not have a constitution at all in the sense most commonly used around the world—a document of fundamental importance setting out the structure of government and its relationship with its citizens. All modern states, saving only the UK, New Zealand, and Israel, have adopted a documentary constitution of this kind….However, in Britain we certainly say that we have a constitution, but it is one that exists in an abstract sense, comprising a host of diverse laws, practices, and conventions that have evolved over a long period of time.²

Standing and Justiciability

There are other limits on judicial power beyond the simple questions of who chooses judges and whether there is a written constitution. Two of the most significant are standing and justiciability. In the United States, the standing requirement means that a party must have a direct, personal stake in the issue to bring a case to court. The U.S. Supreme Court has said that standing, “which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.”³ The justiciability standard separates legal issues that are rightly a court’s to decide from policy issues that elected organs should handle; a corollary is the “political question” doctrine, which holds that courts should avoid policy issues that the Constitution gives to the other branches as well as issues beyond the competence of the judiciary to review. In Israel, neither standing or justiciability have been required: anyone can challenge a law or government decision even if unaffected by it directly, and the Supreme Court can rule on almost any policy matter, including cabinet appointments and even military policies.

As courts consider whether to override decisions of elected officials, they must also rely on some standard by which to judge those actions. Where there is a written constitution, it provides the standard. Where there is no constitution, some basis must nevertheless be used, and Israel’s Supreme Court has relied on “reasonableness.” The problem is that if a majority in an elected legislature has passed a law, calling it “unreasonable” seems like elevating the views of the judges on policy matters; the American law professor Eugene Kontorovich concluded that “the judges merely substitute their preferences for those of elected officials.”⁴ As the Israeli legal scholar Michal Shaked put it, “When the court cannot base its decisions on a legal system with principles and rules, but rather only on the facts of the case and the views of the judges on the panel, this will no longer be making law. The court will cease to play a judicial role and begin to function as a ‘council of wise men.’”⁵

The Supreme Court in Israel

The key figure in Israel’s “constitutional revolution” that expanded the role of its Supreme Court is Aharon Barak, who served as a member of the court from 1978 to 1995 and as its president from 1995 to 2006. While on the court, Barak wrote that

The judge of a supreme court is not a mirror. He is an artist, creating the picture with his or her own hands. He is “legislating”—engaging in “judicial legislation.” Judicial creativity—judicial legislation—is natural to law itself. Law without discretion is a body without a spirit. Judicial creativity is part of legal existence. Such creativity—“judicial lawmaking”—is the task of a supreme court.⁶

Critics argue that language like this expands the court’s role far too widely. In a 2011 law review article about Barak and the court, two Israeli scholars concluded that “the drop in public esteem of the Supreme Court had much to do with Barak’s emphasis on judicial discretion. In the eyes of the public, the justices, who were not elected by the Israeli public, were using discretion and their personal ‘agenda’ to intervene in the defense and economic policies of the elected arms of government—the Knesset and the Cabinet.”⁷ Judge Richard Posner, who served on the U.S. Court of Appeals for the Seventh Circuit, wrote in 2007 that “what Barak created out of whole cloth was a degree of judicial power undreamed of by our most aggressive Supreme Court justices.”⁸

Critics of Israel’s current arrangements should acknowledge that every democracy must devise some answer to fundamental questions about how majority and minority rights are reconciled. As the Israeli judge Moshe Golan wrote:

The design of the basic mechanisms of a regime based on the principle of majority decision is a delicate craft, as it must ensure that the majority decision does not harm the rights of the minority, but guard against a situation where the guarantee of the rights of the minority will harm the principle of representativeness according to which the decision rests with the representatives of the public... The constitutional structure in Israel is not complete and is therefore a vulnerable structure. However, it is not only that the State of Israel does not have a constitution, but its absence caused a situation in which the Supreme Court determined in its rulings—and still determines—the missing parts of this structure, while assigning itself a central role in deciding constitutional matters. In this act, the completion of the constitutional arrangement is achieved, but it is accompanied by a heavy price: a real violation of the principle of representativeness.⁹

This is the background to the fierce political combat in Israel today over the efforts of the current governing coalition to undertake “judicial reform.” Among other proposals, the coalition seeks to change the way judges are appointed, reducing or eliminating the current role of the bar association and of current Supreme Court judges and increasing that of elected officials. It also seeks to prevent the court from overriding or striking down laws, or at least limit those occasions by demanding that a supermajority of judges (in some proposals, twelve of the fifteen on the court) agree. Most controversially, the coalition wants to provide for a Knesset override of any Supreme Court ruling, though there is debate over whether the minimal Knesset majority of 61 votes out of 120 should be sufficient or a supermajority of Knesset votes should be required. And the ruling coalition wants to limit the “reasonableness doctrine,” which subjects government decisions to judicial rejection on vague grounds of “reasonableness” that are not defined in law.

Judicial Reform and Compromise

Many voices have urged a compromise that preserves the role of the Supreme Court in protecting human rights while reducing its overall powers. Moshe Koppel, who leads the Kohelet Policy Forum (the Israeli think tank that has pushed hardest for judicial reforms), has urged courts to use the reasonableness criteria solely for administrative rulings and not for government decisions. But he has also encouraged the coalition to drop the override provision that would allow the Knesset to overrule supreme court decisions, “considering the understandable fear that such an override could be abused and the danger that it would contribute to escalating tension between the branches.”¹⁰

Natan Sharansky, the former Soviet dissident who served as a minister in the Israeli government and as head of the Jewish Agency, has also called for a compromise. “I disagree with both sides” in the debate, he said recently, stating that the proposed reform package “really takes it from one extreme to the far extreme on the opposite side….”¹¹ Sharansky says “democracy means both the rule of the majority and that there are individual rights that no majority can take away….I believe that on the question of human rights, the last word has to be with the judges, and on questions of policy the last word should be with the Knesset.” He supports some of the reforms, such as the one on judicial selection (“The fact that judges are deciding who will be the next judge,” he says, “is something absolutely unacceptable.”) but not others, and criticizes both the governing coalition and the opposition for their failure to sit down and negotiate a compromise. But even the full judicial reform package would not mean that Israeli democracy is ended, he says, criticizing excessive opposition rhetoric on that score while nevertheless stating that a compromise is necessary.

That is also my view. Reform is needed in many areas, including the lack of standards for justiciability and standing, the excessive use of the subjective “reasonableness” test for government actions, and the system whereby Supreme Court justices largely choose who may join the court. But allowing a simple majority in the Knesset to override Supreme Court rulings would risk eroding legal protections for all Israeli citizens.

The debate in Israel is a discussion about matters that every democracy must decide, always seeking that delicate balance between majority rule and minority rights. No system is “right” and none is perfect, so no side in these debates has virtue in its grasp. As Thomas Jefferson stated in his First Inaugural Address in 1801: “All . . . will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect and to violate would be oppression.”