Constitutional Adjudication in Wartime: Israel Supreme Court Edition

What is the proper role of the courts during war and other times of national crisis? We have familiar bromides. Inter arma enim silent leges is a Latin expression of the idea that the laws are silent during war. That is not true, of course, at least not in countries with a minimally robust respect for the rule of law.

Domestic and international law provide extensive regulation of the conduct of war. As Justice Sandra Day O'Connor wrote for a plurality in Hamdi v. Rumsfeld (2004), "a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens." A fine sentiment, no doubt, but we do well to remember that while the Hamdi Court rejected President George W. Bush's assertion of unreviewable authority to detain alleged unlawful military combatants, the Court also allowed indefinite detention without trial.

Perhaps the best descriptive account of the role of U.S. courts in wartime came from Chief Justice William Rehnquist in his book All the Laws But One: Civil Liberties in Wartime. He argued (persuasively) that in the U.S. experience, the laws are not silent during wartime but they do speak in a somewhat softer voice than during peacetime.

The U.S. experience is not unique. Accordingly, it would hardly have been surprising if the Supreme Court of Israel had found some way to avoid ruling on the validity of the Basic Law amendment passed by the Knesset in July of last year that strips the Court of the power to invalidate legislation as unreasonable. Perhaps the Court might have held off issuing an opinion for several months while the war raged on. It might even have ruled in favor of the amendment's validity. That it did not--that it issued the decision it did--is an indicator of at least four things: (1) the increasing global acceptance of the doctrine of unconstitutional constitutional amendments; (2) the extent to which Israel's political system consolidates otherwise unchecked power; (3) the Court's correct perception of the weak political position of Prime Minister Benjamin Netanyahu; and (4) the failure of last year's popular protests against Netanyahu's coalition partners' "reforms" of the judiciary to grapple with the other fundamental problem with Israel's political/legal structure as an occupying power in the West Bank (and for now, at least, once again in Gaza). I discuss each of these points below.

(1) News stories by reporters without evident legal training have consistently described Monday's ruling in (apparently unintentionally) misleading ways. For example, a NY Times story (to which I'll link again below in point 3 for a different purpose) describes it as "narrow, 8-7 decision." The vote was indeed 8-7 to invalidate the law abolishing reasonableness review, but three of the seven engaged in what we in the U.S. would call constitutional avoidance: they read last year's Basic Law as preserving a form of review that is comparable to reasonableness review. And all but two of the fifteen Justices agreed that the Supreme Court has the power to invalidate a Basic Law on the ground that it is inconsistent with more fundamental principles. That's extremely important because it indicates that the more radical reforms that Netanyahu's far-right coalition partners still favor could be invalidated by a more lopsided majority.

But wait. The July legislation was an amendment to Israel's Basic Law: Judiciary. It was, in effect, a constitutional amendment. How can a constitutional amendment--which is thus part of the constitution--be unconstitutional? To my provincially American readers, that idea might sound oxymoronic, but comparativists will know that constitutional courts around the world have increasingly invoked the doctrine of unconstitutional constitutional amendments to invalidate amendments that satisfied the requisite procedural requirements but fundamentally altered the system of government in ways that are inconsistent with foundational principles of democracy and/or human rights.

How can a constitutional provision be unconstitutional? The answer is easy to see in cases of express entrenchment. The best-known is Article 79 of the German Constitution, which makes the Constitution's core federalism provisions and its rights provisions completely unamendable. An amendment purporting to repeal the right of assembly (Article 8) would be an unconstitutional constitutional amendment. The U.S. has no exact analogue, but it comes close with respect to the Senate, which cannot be amended without unanimity of the states. It is thus effectively unamendable.

The great innovation in recent decades is the adoption of the doctrine of unconstitutional constitutional amendments by constitutional courts in countries with constitutions that do not contain language similar to the German Constitution's Article 79. I cannot provide a fair descriptive account, much less any sort of normative evaluation, in a blog post, so for now I'll refer interested readers to Professor Yaniv Roznai's 2016 Oxford University Press book, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers.

(2) As readers may have guessed from his name, Professor Roznai is Israeli. He has been among the leading academic critics of the radical reforms and is supportive of the Supreme Court's ruling. That's my segue to my next point: the significance of the adoption of the unconstitutional constitutional amendments doctrine by Israel.

One might think that Israel is an especially poor candidate for the unconstitutional constitutional amendments doctrine because it doesn't really have a constitution at all. Upon its founding in 1948, the country was supposed to convene a constituent assembly to create one, but with the onset of war, that didn't happen. Instead, the Knesset determined that it would serve two roles. For the most part, it would operate as an ordinary parliament passing ordinary legislation. But it could also sit as the constituent assembly and enact "Basic Laws." It has always done so by a simple majority vote--the same procedure that it uses to enact ordinary legislation.

For that reason, many people were critical of the Israeli Supreme Court's assertion of the power of judicial review in the Mizrahi Bank case and its further use of the power under the Court's former President Aharon Barak. If a Basic Law was the product of ordinary majoritarianism, critics wanted to know, why should it take precedence over a later-enacted piece of legislation produced through the same ordinary majoritarian process? Even more so, one might wonder, how can provisions that have not been adopted through any sort of super-majoritarian process be the basis for permanent entrenchment of the sort that we see expressly in Article 79 of the German Constitution?

Those are legitimate and legitimately difficult theoretical questions, but they should not be posed in a vacuum. As critics of the radical reforms to Israel's judiciary have emphasized, Israel's political system concentrates unchecked power. It has a unicameral legislature. Its prime minister is the leader of the majority party in the Knesset, so that there is no separation of powers. Without a judicial check on its power, a simple majority coalition--which, thanks to the familiar dynamic of multi-party parliamentarianism, will often empower radical fringe groups--can run rampant.

And Netanyahu's current coalition has given every indication of wanting to do just that--not least in its effort to neuter the Supreme Court. Ironically, that effort has ended up strengthening the Court.

(3) Or has it? That NY Times story I linked above to criticize the "8-7" framing is mostly about how Netanyahu's government does not appear likely to move against the Court in the immediate future and thus jeopardize wartime unity. But if and when the war ends, there is reason to think that Netanyahu's current political allies will adopt counter-measures. Where that road ends is unclear. The Court could strike down provisions severely limiting their power, overwhelming them with new appointees, and so forth, but we can also imagine an emboldened right-wing government defying those decisions. The end-game, no doubt, is a full-blown constitutional crisis.

Why did the Court risk bringing on such a crisis at this particular moment? It's possible that in the absence of war, the Court might have issued an even bolder or more nearly unanimous ruling on the bottom line. Maybe the decision the Court handed down was less aggressive than it would have produced were the country not at war.

But I suspect not. I suspect that the Court issued its opinion when it did--or at least that it did not hesitate to issue its opinion when it did--because of Netanyahu's current political weakness. Most national leaders experience a rally-'round-the-flag effect. Netanyahu did not, in no small part because of his own at-best negligence in allowing the October 7 attack. The war is keeping Netanyahu in office because Israelis don't want a divisive election right now, but it is difficult to believe that he will remain Prime Minister for the long run.

That fact "raises the obvious question: If there won’t be drastic political changes during the war, isn’t Netanyahu’s incentive just to keep it going as long as possible?" That question was posed last month by a reporter for New York Magazine. The answer (provided by a reporter for Haaretz) is apparently not, mostly because the former generals in the emergency cabinet, not Netanyahu, are making the key decisions.

(4) That brings us to the awkward relation between the extreme and objectionable judicial reform measures, the movement against them, the Israeli Supreme Court, and the war. I'll make this last set of observations through three sub-points.

a) The Supreme Court of Israel was only ever at best a center-left institution, and it was that mostly on domestic issues. Although occasionally rebuking the most extreme actions by the government, it has not in any substantial way blocked the expansion of West Bank settlements in the years since Oslo. Mostly it was targeted because it was seen by the religious elements of the Netanyahu coalition as too secular.

b) The popular movement of secular and politically moderate Israelis to defend the Court against the Netanyahu coalition's reforms had just about nothing to do with the right-wing government's policies towards Palestinians. To be sure, some of the protesters also happened to hold left-of-center views about such issues, but (I was told by several people who fit that description), in order to appeal to the widest possible coalition of Jewish Israelis, defense of the Court was completely decoupled from policy respecting Palestinians.

c) That will likely continue to be true. In the nearly three months since Hamas's brutal October 7 attack, the war has unfolded more or less exactly as I feared it would, only worse. I have not seen evidence that Israel is systematically targeting Gazan civilians. I also recognize that Hamas bears substantial responsibility for the civilian casualties. But the fact that a nation's enemy commits war crimes does not excuse it from attempting to minimize collateral harm to civilians. With the Gaza death toll now in the tens of thousands and over a million people at risk of starvation, it is difficult to imagine that those impacts are proportionate--either legally or morally--to any long-term strategic goal that is plausibly within reach. And yet, most Israelis support the war as it is being currently fought and apparently believe it is enhancing rather than undercutting Israel's long-term security.

If and when Israelis have the opportunity to return to bickering among themselves about whether to have a real constitutional court, that bickering will likely remain decoupled from the fate of Palestinians.