[Editor’s note: Make sure to read Joseph Klein’s masterpiece contributions in Jamie Glazov’s new book: Barack Obama’s True Legacy: How He Transformed America.]
The Israeli government’s current proposed bill to scale back the judiciary’s power to overrule the laws passed by the country’s legislature, the Knesset, has been grossly distorted by its critics inside and outside of Israel. The critics claim that the proposal would destroy Israel’s democratic system by drastically weakening the independence of Israel’s Supreme Court to serve as a check on the elected officials’ exercise of power. Prime Minister Benjamin Netanyahu, on the other hand, said in a video message on July 10th that the government’s proposal is “not the end of democracy but rather the strengthening of democracy.”
In response to criticisms of the scope of the original government plan for judicial reform earlier this year, Prime Minister Netanyahu has made efforts at reaching a compromise. For example, he said that his government’s current plan for judicial reform would not allow the Knesset to override Supreme Court decisions, an additional legislative power that had been included in the government’s original proposal. Nor is the proposal to give the legislature more power over the selection of judges presently on the table. Nevertheless, the critics remain as stridently opposed as ever to any effort to define more clearly the bounds of the judiciary’s authority in the absence of a written Israeli constitution.
Following the Knesset’s approval of the first of three readings of the bill, tens of thousands of Israelis protested across the country against the bill. New York Times columnist Thomas Friedman wrote an op-ed article entitled “The U.S. Reassessment of Netanyahu Has Begun” in which he asked the rhetorical question, “Why is Israel’s cabinet trying to crush the Supreme Court?”
Israel’s cabinet is not trying to crush the Israeli Supreme Court. It is trying to rein in a runaway court comprised of unelected judges who have habitually struck down laws and government officials’ actions that they did not like under a vague, judicially created “reasonableness” standard. There is no written constitution that provides clear parameters for the judges to use in determining what is reasonable or not. Israel’s “Basic Laws,” passed over the years by successive Knesset majorities, does not grant judges the authority to determine the “reasonableness” of a law or government officials’ actions based solely on their own subjective beliefs. Yet that is what Israel’s Supreme Court has been doing.
As described by the Times of Israel, the judges’ use of a “reasonableness” standard in deciding cases “allows the courts to strike down government and administrative decisions seen as having not taken into account all the relevant considerations of a particular issue, or not given the correct weight to those considerations — even if they do not violate any particular law or contradict other administrative rulings.” This means that the judges can do pretty much whatever they want to do.
Israel’s Supreme Court can properly decide whether the legislature or government officials acting in an executive capacity have exceeded their authority as defined in the Basic Laws or have arbitrarily committed an outrageous act that is grossly unjust. Israel’s Supreme Court can properly decide whether the legislature or government officials acting in an executive capacity have unduly infringed on a person’s fundamental human rights to dignity and liberty as spelled out in the Basic Laws. But the Supreme Court should not be able to take the place of the Knesset.
The problem with the Israeli Supreme Court’s use of a “reasonableness” standard as described above is that it turns Israel’s Supreme Court into an unelected legislature. The judges would have the last word by essentially re-doing what Israel’s legislators have been elected to do. It is the legislators’ job, not the judges’ job, to evaluate a policy issue from all relevant perspectives, which may include a cost-benefit analysis and weighing a proposed law’s impact on various sectors of society and the economy.
A prominent Israeli Supreme Court justice, Noam Sohlberg, who is currently expected to become the Supreme Court president in 2028, has criticized his colleagues’ use of the “reasonableness” standard in deciding cases and has urged judicial self-restraint. Back in 2020, Justice Sohlberg wrote an article in which he stated that the Israeli Supreme Court’s use of the “reasonableness” standard “strikes at the core of the principle of the separation of powers.” He added that cases decided based on this standard “lack democratic approval.”
Justice Sohlberg’s colleagues on the bench have apparently not gotten his message urging judicial self-restraint. Hence, the need for corrective legislation.
President Biden has petulantly refused since taking office to invite Prime Minister Netanyahu to the White House, presumably because the U.S. president, who caters to his progressive left-wing base, thinks that Israel’s cabinet is too “extreme.” Earlier this year, President Biden expressed displeasure with legislative plans to reform Israel’s judiciary. Last March, he urged Prime Minister Netanyahu to “walk away” from the judicial reform proposals and said that Israel “cannot continue down this road.”
Aside from interfering in Israel’s domestic matters and showing disrespect for the leader of America’s leading ally in the Middle East, President Biden’s concern for the independence of Israel’s Supreme Court is hypocritical. Just last month, the president viciously attacked the United States Supreme Court for decisions it rendered based on sound interpretations of the Constitution that did not suit his policy preferences. He recklessly claimed that the current Court is “not normal” and that it is “out of sorts with the basic value system of the American people.”
In short, President Biden seeks to delegitimize the U.S. Supreme Court for doing what the judiciary is supposed to do. Interpret the meaning of laws and regulations, apply the relevant laws and regulations to each case’s factual circumstances, and decide whether a law or executive action violates the U.S. Constitution. At the same time, Biden has gone after Israel’s leadership for trying to ensure that Israel’s Supreme Court limits itself to properly performing its judicial role and not usurp the powers of the country’s elected legislators.
President Biden is wrong on both counts.