Netanyahu's Political Takeover of the Courts

 by Michael C. Dorf

In addition to its hardline policies in other domains, the current far-right coalition government in Israel is rapidly moving to undercut the independence of the nation's courts. The details of the legislation moving forward in the Knesset (Israel's unicameral parliament) under the sponsorship of Simcha Rothman differ somewhat from the version proposed by Justice Minister Yariv Levin. However, bloc voting by members of the parties forming the ruling coalition ensures that once they iron out their differences, some version of the measure will go through--unless Prime Minister Netanyahu judges the political cost too high. Yesterday brought a ray of hope, when Netanyahu seemed to open the door to a compromise proposal by Israel's (mostly ceremonial) President Isaac Herzog, but that's no reason for protesters to ease the pressure.

With the disclaimer that I am not an expert in Israeli politics (or in Israeli law, for that matter), I will say that I am not optimistic about the prospect of derailing or substantially weakening the effort to rein in the courts. For one thing, Netanyahu has a personal interest in undercutting the courts. By changing the composition of the judiciary, he can reduce the likelihood that he will be convicted of the corruption charges pending against him and increase the likelihood that if he is convicted, the result will be reversed on appeal.

Moreover, even setting aside Netanyahu's personal motives, he is under considerable pressure to attack the courts. In order to maintain his power, Netanyahu needs to appease the most extreme right-wing members of his coalition, in somewhat the same way that Kevin McCarthy cannot risk alienating the likes of Marjorie Taylor Greene. Each leader's pragmatic streak is tempered by his political weakness. Even if the long-term interests of the GOP and Likud (not to mention the long-term interests of the U.S. and Israel) counsel moderation, in both countries the imperative of political survival in leadership demands bowing to the extreme right.

Accordingly, I shall assume for the balance of this essay that at least two key elements of the Rothman and Levin plans will become law, even as I hope I'm wrong in that assumption. Those elements are: (1) a change in the means by which Supreme Court Justices are selected from one that, by requiring a super-majority of persons with differing views, ensures political balance on the Court, to a system that effectively gives the ruling coalition in the Knesset the power to name whichever Justices it wishes to name, even in the face of the most strenuous opposition; and (2) effective elimination of the Court's power of judicial review.

After providing a little background, I'll offer some broader thoughts about norms and judicial review.

I begin with the understanding that any appointment process for the judges on a powerful court aims at a few goals: (a) ensuring that appointees have excellent professional qualifications and a judicial temperament; (b) providing democratic input, given the policy discretion that adjudication inevitably entails; and (c) ensuring judicial independence. Goals (b) and (c) can conflict. The more one tethers the Court to the views of the current majority, the less likely it is that the Court will stand up to government excesses.

No judicial appointments process is ideal and there are numerous ways to approach the issue. Even so, the Netanyahu government's scheme is terrible. It sacrifices judicial independence without even promoting democracy because control by the coalition government is not control by a majority; it's control by the most rightwing extremists in the governing coalition.

I bracket the question whether it would make sense to call the current system for selecting judges or the Knesset as a whole "democratic" at all in light of the fact that Palestinians subject to Israeli occupation have no voice in the government and that even Palestinian citizens of Israel are generally shut out of Israeli coalition politics. The short-lived anti-Netanyahu coalition was a unique exception. But most of the current protests against the proposals to neuter the judiciary have little to do with the increasingly horrifying acts of terrorism by Palestinians and Israeli Jewish settlers alike (the latter with the apparent complicity of Israeli soldiers), so I'll continue to focus on the judicial reform measure through a comparative constitutional lens rather than through the lens of the broader troubled story of Israel and Palestine.

Accordingly, let's turn now to the proposed cutback on judicial review. Partly reflecting the influence of British colonization and the model of parliamentary supremacy, and also partly reflecting the fact that the outbreak of war immediately upon independence in 1948 distracted Israel's leaders, the country has no written constitution. It does, however, have a number of "Basic Laws" that set out the structure of government, elections, offices, and so forth, as well as a limited number of rights. These Basic Laws were adopted, added, and amended over time, beginning with the first meeting of the Knesset, which sits as a Constituent Assembly when it enacts Basic Laws. Despite their elevated status and name, Basic Laws are adopted, amended, and repealed in the same manner as ordinary legislation: by a simple majority vote in the Knesset. Given party discipline so long as a coalition holds, that means the Knesset can make, amend, or repeal a Basic Law at any point when the government wishes to see the change.

By far the most important Basic Law for constitutional litigation is the Basic Law: Human Dignity and Liberty. It has served as the fount of nearly all of the decisions of the Supreme Court of Israel regarding human rights--and for that reason has also drawn the most criticism from the right. In 1995, in the Mizrahi Bank case, the Court declared that it had the authority to invalidate ordinary legislation that conflicts with a Basic Law. That ruling--and especially the opinion of then-Court President Aharon Barak--has sometimes been called the Marbury v. Madison of Israel. Since then, the Supreme Court has come under near-constant criticism from the right for its use of Basic Laws (and some other devices) to support some rights for women, Palestinians, and non-religious Israeli Jews by invalidating some special benefits for Haredim (ultra-Orthodox Jews).

There has also been non-ideological criticism of the Israeli Supreme Court on grounds that will be familiar to American readers from our own debates over the counter-majoritarian nature of judicial review. The critique is especially pointed in Israel, where Basic Laws are not entrenched via any kind of simper-majoritarian process for enactment or amendment.

The bills now being pushed by the Netanyahu government would limit the Supreme Court's substantive power by requiring (in one version) unanimity or (in the other) a strong super-majority to invalidate legislation, stipulate that a Basic Law itself cannot be invalidated even by a unanimous Court, and authorize the Knesset to override a Supreme Court ruling (a procedure best known for its inclusion as Section 33 of the Canadian Charter of Rights and Freedoms but also already present in limited form in one of Israel's Basic Laws).

Putting aside the awful intent behind and likely awful consequences of the judicial reform efforts, to my mind they are most interesting because they are, in some measure, unnecessary. Even without passing the reform bill, the Knesset--which is to say the coalition government--already has the power to override any Supreme Court decision that relies on a Basic Law to invalidate a statute passed by the Knesset. A simple majority vote is all that is required to amend the Basic Law. One can therefore view the multiple elements here as a kind of belt-and-suspenders approach, but it's a belt-and-suspenders approach to an institutional arrangement whose pants are already so tight that they're at no risk of falling down.

To be sure, heretofore the Knesset has not simply amended the Basic Laws every time the Supreme Court declared a law or policy invalid under a Basic Law. In that sense, norms that also operate in the UK with respect the Human Rights Act (which allows Parliament to proceed notwithstanding a "declaration of incompatibility) and in Canada with respect to Section 33 seem to have been operating in Israel. Scholars who write about so-called "soft" judicial review of the UK/Canadian sort often note that legislatures are reluctant to invoke their power to override a judicial declaration for fear of voting expressly to violate rights.  Some of that reluctance no doubt comes from the in terrorem effect of the override possibility. A court that knows its decisions can be overridden by the legislature will be more cautious in its rulings in the first place. But I'm persuaded by the evidence that there is also some shaming involved: legislatures are reluctant to use the override even when courts are not chilled and strike down laws that the legislators would, all things considered, prefer to keep on the books.

And that brings us to a minor puzzle. It's clear that the governing coalition is willing to break norms with respect to the judiciary. Given that willingness, why did it arouse the public by going after the courts so visibly? Why not simply adopt a practice of routinely amending Basic Laws when the Supreme Court applies them in ways that Netanyahu and his coalition partners dislike? That too would break a norm, but it would do so one-at-a-time and in a less visible way.

I have a two-part hypothesis: (1) What Netanyahu and those members of his cabinet who have criminal records really care about is the part of the proposal that enables them to pack the courts, because the ability to amend a Basic Law does not ensure a sympathetic judge. (2) The government doesn't mind joining other aspects of the proposal that are part of the long-time agenda of the far right because any additional pushback from the left and center will make Bibi et al more popular with the fanatical base of his far-right coalition partners. It's the Israeli version of "owning the libs."