Israel is fighting for its life. The Hamas war means that terrorist rockets are still raining down on Israeli civilians. The war may yet spread to Lebanon thanks to Iran’s other main Iranian proxy force, Hizballah, which has been making minor attacks against Israel regularly. If Iran orders it to go to war, Hizballah will do so.
If Israel survives, it will be no thanks to Israel’s Supreme Court.
The court insisted that its arbitrary standard of review was essential to democracy. That’s nonsense.
It’s safe to predict that Israeli Prime Minister Benjamin Netanyahu will be tossed out of office when Israel’s war against Hamas is done in the Gaza Strip. Not only will his government be held accountable for its failure to prevent the Hamas attack, Netanyahu will be thrown out over his effort to reform the Israeli court system.
The instability of Israeli politics, and Mr. Netanyahu’s tenuous hold on power, is reflected in the fact that Israel has had five general elections in four years. (READ MORE from Jed Babbin: Goodbye and Good Riddance to 2023)
Late in 2022 and in early 2023 there were more than thirty weeks of protests against Netanyahu’s judicial reforms in which hundreds of thousands of Israelis took to the streets. The protesters claimed that Mr. Netanyahu’s reforms would end democracy in Israel. The resistance to his initiatives went so far that some army reservists refused to report for duty.
President Biden, of course, sided with the protesters and some in the Israeli media who condemned Netanyahu’s ideas. In a July 23rd telephone call Mr. Biden pressured Mr. Netanyahu to abandon his proposed reforms.
With one exception, Mr. Netanyahu’s reforms — some proposed and one enacted — would have enhanced democracy, not destroyed it. The one that was enacted has just been overturned by the Israeli Supreme Court.
If Israel had a constitution this would have precipitated a constitutional crisis. But it doesn’t, so the situation is worse. Instead it has its “Basic Laws,” some of which go back to the nation’s founding.
Israel’s parliament — the Knesset, which has only 120 members — can amend the Basic Laws but is hesitant to do so. The current crisis results from the unfortunate combination of several aspects of its government: its Basic Laws, its parliamentary form of government, its imperial judiciary, and Mr. Netanyahu’s government, which is cobbled together from several conservative and religious factions.
Netanyahu proposed several judicial reforms. One would have enabled the Israeli parliament to overturn any Supreme Court decision by a simple majority vote. Amid the protests, Netanyahu dropped that proposal.
In a parliamentary system of government such as Israel’s and the United Kingdom’s (from which Israel borrows much of its law) a prime minister is chosen by a parliamentary majority. There are no circumstances, like the one we presently have, in which one party holds half of the legislature and the other holds the prime minister’s post. Israel’s parliament is a unicameral body. That means that, had Mr. Netanyahu not dropped it, that proposal would have effectively established the prime minister as a dictator had it been enacted. It wasn’t.
Israel’s judicial system is badly in need of reform. Consider the just-reversed change to Israel’s Basic Laws that took away the courts’ ability to strike down any government administrative actions — from cabinet minister appointments to any other administrative action — on the basis that they are “unreasonable in the extreme.” (READ MORE: The Colorado Supreme Court vs. Trump)
We’re familiar with most of the standards that judges must apply in U.S. cases. A finding of guilt beyond reasonable doubt is the standard in criminal cases. In some civil cases the standard is the “preponderance of the evidence.”
In judging cases against administrative actions, the U.S. standard focuses on the abuse of the officer’s discretion granted by Congress. That means, for example, under the Administrative Procedures Act, that the court decides the case based on evidence of whether the administrative act by any U.S. government official goes beyond or abuses the discretion that Congress gave that office (or officer) under a specific statute.
That’s a safe and well-established standard of judicial review. It is routinely applied by U.S. federal judges who have many decades of precedents to rely on.
The “reasonableness” standard is vague and entirely subjective. Under the U.S. Constitution, it wouldn’t last ten minutes. Taking the “reasonableness” standard away from Israeli courts reduced their power to act arbitrarily, and it should have stood the test of judicial scrutiny but for the court’s intent to keep its arbitrary power.
The “reasonableness” standard gives that Court so much arbitrary power that any judge should realize is too subjective to apply to any case.
According to a Reuters report, quoting the Israeli Supreme Court’s summary of the case, the court said the government in passing the amendment to the Basic Law “completely revoked the possibility of carrying out judicial review of the reasonableness of decisions made by the government, the prime minister, and the ministers … The court held that the amendment causes severe and unprecedented harm to the core characteristics of Israel as a democratic state.”
The court insisted that its arbitrary standard of review was essential to democracy. That’s nonsense. Democracy depends on checks and balances on each branch of government, not a judiciary that can act arbitrarily outside the law. This reminds me of the Colorado Supreme Court’s ruling that former president Trump shouldn’t be on the ballot because he engaged in an “insurrection” without any evidence that he had been convicted of such a crime.
Israel’s Supreme Court has set up a conflict between any political administration’s ability to act and the Court’s vague and entirely arbitrary standard of “unreasonableness.”
The only way to resolve that conflict would be for the Knesset to pass a law that replaces the “unreasonableness” standard with a real standard by which courts could properly judge administrative actions. Our Administrative Procedures Act could be a model for such a reform. (READ MORE: Biden Is Bankrolling the Ayatollahs)
But that would not prevent another judicial ruling to preserve the “unreasonableness” standard, which the Israeli Supreme Court could again strike down. It’s unlikely that the Israeli Supreme Court would allow such a new law to stand, but it should. The “reasonableness” standard gives that Court so much arbitrary power that any judge should realize is too subjective to apply to any case. The majority of the Israeli Supreme Court is too protective of that standard of review to give it up.
Israel will be able to defeat Hamas, and probably Hizballah, in the ongoing war. Its democratic form of government cannot survive while its courts insist on their imperial power.