On Democracy and the War against the High Court
Elections are an attempt, not always successful, to translate the voters’ wishes into a well-functioning and representative government - however no democracy anywhere in the world makes do with elections to a single institution as the only means for implementing democracy.
“The Court has officially seized control of the Knesset,” announced Minister Yariv Levin in March 2020, when the High Court of Justice instructed the Speaker of the Knesset to convene the plenum in order to choose a new speaker. “The judicial system is trying to stage a coup in the State of Israel, nothing less,” declared Minister Bezalel Smotrich. Speakers on the political right repeatedly demand that the court be stripped of its power, and democracy be given back to the people.
Countering these allegations requires us to revisit the foundations of democracy.
We all know that elections in Israel are supposed to take place at least once every four years, but in practice occur more frequently. Yet elections are only an attempt, not always successful, to translate voter preferences into an effective and representative government.
The tiny slips of paper we drop into the ballot box cannot possibly express our views on any single topic, and certainly not on all issues. Even if elections were capable of reflecting the people’s will with perfect accuracy, there is no guarantee that the chosen representatives would in fact act to advance the public good or even adhere to the platform on which they ran for office.
Because elections are an imperfect tool for expressing the popular will and translating it into representative government, no democracy makes do with elections as the only means for implementing democracy. Additional mechanisms are necessary to enable citizens to participate in the public arena and to ensure oversight of elected bodies.
The first mechanism is the division of power among several institutions. For example, come November, U.S. citizens will be voting for a president, the House of Representatives, a third of the Senate, and various state and local officials.
The second mechanism consists of institutions that keep an eye on elected representatives to ensure that they do not exploit their power to deprive the citizenry of specific freedoms or to impose a tyranny of the majority. The judicial system is probably the most important of these institutions.
In my forthcoming book, The High Court Wars; The Constitutional Revolution and the Counter-Revolution, I describe the evolution of these mechanisms in Israel in recent decades. In the 1980s, public frustration with coalition politics spurred an effort to expand the power of the executive branch. As a result, the government gained total control of the political agenda, limiting the Knesset’s ability to oversee government policies. In doing so, one of the primary mechanisms of democracy—the separation of powers among the branches of government—was undermined.
In order to balance the added power granted to the executive branch, the Knesset empowered Supreme Court to become the principle check on the government. Israelis often speak of a “constitutional revolution” led by activist judges in the 1990s. But in reality, the “constitutional revolution” was not a leftwing putsch intended to thwart rightwing governments. It was the result of a rebalancing of powers, to create a new equilibrium that was acceptable to many—on both the Left and the Right.
However, in recent years, parties on the right have been trying to alter this balance, for a number of reasons. First, the right has enjoyed several decades of nearly uninterrupted power. This has eroded some politicians’ understanding of the importance of institutions that set limits to their power. Unlike Menachem Begin, many on the right have never sat on the benches of the opposition, and thus have never experienced first-hand the need for institutions that can restrict the government’s powers or the will of a temporary political majority.
Another and perhaps more important reason, is the rise of populism. Populism is an ideology that, among other features, tends to conflate democracy with a strong elected leader. Populists often argue that any attempt to restrict the leader’s power is an elitist, anti-democratic attempt to undermine the elected leader’s power—and by extension to subvert the will of the people who chose him.
Almost by definition, populists reject the limits set by courts on the government. Judges espouse nuanced positions, balance competing interests and values, and ultimately tend to restrict the power of the executive branch. As such, it is easy to write them off as members of an elitist cabal. Attacks on the courts by populist leaders are not unique to Israel. We have seen many other populist leaders—such Orbán in Hungary, Kaczyński in Poland, Narendra Modi in India, Donald Trump in the U.S.—severely criticize court decisions that limit their power, and some have acted to curtail judicial authority.
A third reason for the attacks on the court, which is unique to Israel, is the situation of an incumbent prime minister on trial for serious crimes. Seen from Prime Minister Netanyahu’s perspective, what argument could be more compelling than that the judicial system is mounting a coup by deliberately seeking to oust him from office?
In Israel, the convergence of these trends has brought the attacks on the judicial system to a head. In recent months, we have witnessed an ongoing assault on senior officials of Israel’s law-enforcement agencies, including the national police force, the prosecution, the attorney general, and the courts.
In this delicate situation of a conflict among the branches of government, it is vital to preserve the separation of powers. In particular, it is important to preserve the authority and independence of the Supreme Court, which in the absence of a constitution, a bill of rights, or a federal distribution of power, is absolutely essential for maintaining democracy and preserving the basic freedoms of all Israeli citizens. Any significant cutback in the power of the court will jeopardize our future as free citizens.
A version of this article was published in the Times of Israel.