Book Summary

The High Court Wars: The Constitutional Revolution and the Counter-Revolution

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The appointment of conservative judges to the court, and even the enactment of a certain version of the override clause, will not bring about the destruction of the Supreme Court, and will certainly not turn Israel into a totalitarian state. However, the continued attacks on the Court, and the potential passage of the most extreme proposals pose a serious challenge to Israeli democracy.

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On December 29, 2022 after almost four years of political instability in Israel, Benjamin Netanyahu's 5th government was sworn in. This time, Netanyahu's coalition enjoys a solid majority in the Knesset. Moreover, Netanyahu's coalition is composed of right-wing parties, making it the most homogenous government in Israel in recent years.

Perhaps the issue that united the new coalition more than any other was the agreement on the necessity for reform in the judicial branch. Less than a fortnight after his appointment as minister of justice, Netanyahu's ally Yariv Levin introduced a bill to the Knesset for a radical reform of the Judicial Branch. Levin's proposal included new limits on the authority of the Israeli Supreme Court to invalidate legislation, and on its authority to review administrative acts. It also included a enacting major changes in the composition of the Judicial Selection Committee - making it a more politically controlled institution, subject to the control of the parliamentary majority. Levin also suggested a significant decrease in the authority of the professional legal advisors of the government.

Levin's proposals ignited a heated political debate, and garnered public attention not seen in Israel in recent years. Tens of thousands of Israelis went to the streets to demonstrate in opposition to the suggested reforms. The media  -both traditional and social – was now full of explanations regarding the reform. The debate in the Knesset, centered in the Constitutional, Law and Justice Committee" was broadcasted live on several outlets, and attracted enormous public attention. Op-eds on the pros and cons of the suggested reform were published in leading international newspapers such as the New York Times and Wall Street Journal.

Of course, the debate on the powers of the court did not start the recent proposals. The Supreme Court in particular and the Israeli justice system in general have been at the center of a public debate for years. As part of this debate, a series of proposals were made to diminish its status, powers and functions. As we have already seen, the debate surrounding the Supreme Court is very passionate, and both sides use dramatic vocabulary. The debate escalated when the Attorney General decided to indict Prime Minister Netanyahu in various corruption claims.

Apparently, this is a debate with no way out: on one side are those who believe that the Supreme Court is the last barrier against a dramatic denial of rights, and that a violation of its powers will result in the trampling of the minorities in Israeli society. On the other hand, the claim arises that the Supreme Court is an institution that has assumed the authority of invalidating laws by illegitimate means. The values he preserves are the values of a minority in Israeli society, and his legal claims are nothing more than a cover for a political position of the liberal left.

This book, "The Wars of the High Court," is based on the concept that the true role of the Supreme Court in any democracy, and in the Israeli democracy in particular, is to preserve the democratic process and the principle of people's rule. Such a concept can be a broad ground for agreement on both sides, and a possible way out of the current entanglement.

At the center of the book is the following claim: Israeli democracy is universally unique: elected power is concentrated in very few hands. A very small group of people - the leaders of the coalition parties - control the government, the Knesset, and in fact the entire process of making key decisions in Israel. Such a phenomenon of the concentration of power is almost unparalleled in democratic countries in the world.

In the face of this concentration of political power, the Israeli Supreme Court was entrusted with powers aimed at ensuring that the coalition's "nucleus of control" does not abuse its powers by preventing free competition in elections, undermining the principle of the rule of law, and limiting the pluralism essential to Israeli democracy. The real constitutional revolution, the book claims, was strengthening the power of the government and weakening the power of the parties in the late 1980s and early 1990s. Giving the Supreme Court the authority to invalidate laws reflected a necessary, and agreed-upon balance for this strengthening, without which the government would have become all-powerful - contrary to the principles of the rule of the people.

Indeed - most of the rulings of the Court in which laws were struck down can be understood precisely in this context. This is how the Supreme Court established the right to freedom of expression, which is essential for the existence of free democratic competition; This is how the Supreme Court supported the strengthening of the Knesset's power vis-à-vis the government, by rejecting a third property taxation law in which the members of the Knesset did not understand, and could not understand, what they were voting on. Similarly, the Supreme Court invalidated legislation that distorted the democratic process and led to the denial of tax benefits from Arab settlements, and excessive benefits to the ultra-Orthodox community.

Although the members of the Knesset did not, of course, agree with every ruling of the Supreme Court, the principled balance of power that was created was accepted by most of the political system until the last decade. More conservative forces sought to change the composition of the Supreme Court, or to limit its powers slightly, liberal forces sought to expand its powers and power, but there was no real challenge to the very legitimacy of the Supreme Court and its central functions.

But in the last decade, a wave of populism washed over the Western world, including Israel. In the United States, Brazil, Poland, and Hungary – significant movements emerged that supported the ideology according to which the power of the elected government, headed by the "leader," should be unlimited. By definition, then, populist leaders oppose any independent institutions: they wish to curb the power of civil servants, take control over the media, and limit the independence of universities. That is why all populist leaders, almost without exception, clash with independent courts and seek to reduce their powers. This populist view is the main reason for the attacks on the Supreme Court in Israel.

Against the background of these developments, this book "Wars of the High Court," examines the proposals for the enactment of a Basic Law: Legislation, the override clause, and a change in the makeup of the Judicial Selection Committee. It separates proposals that represent a genuine conservative political position from those emanating from a populist ideology, that seeks to bring about the destruction of the justice system.

The appointment of conservative judges to the court, and even the enactment of a certain version of the override clause, will not bring about the destruction of the Supreme Court, and will certainly not turn Israel into a totalitarian state. However, the continued attacks on the Court, and the potential passage of the most extreme proposals pose a serious challenge to Israeli democracy. Therefore, the regularization of the Court’s status, and its preservation as a central tool of criticism of the government and the Knesset, can bring stability to Israeli democracy and guarantee it preservation for the next generation.

Professor Amichai Cohen is a senior fellow at the Israel Democracy Institute, and a faculty member at the Faculty of Law at Ono Academic College. Graduated from the Faculty of Law at the Hebrew University of Jerusalem, and holds a master's and master's degree from the Yale University School of Law. His research deals with constitutional law and international law.