On Monday, the Knesset, Israel’s parliament, enacted a relatively modest law that restricts judicial power. The bill bars the Israeli Supreme Court from overturning national government decisions based on “reasonableness,” a vague and widely criticized common-law doctrine.
On its face, the furious response to that development, which included mass protests, a partial work stoppage by doctors, and threats of a general strike, seems wildly disproportionate. It makes sense only in the context of a broader dispute about the proper role of courts in a democracy, a bitter controversy that echoes U.S. debates about “judicial activism,” with some crucial differences.
The U.S. has a constitution that, by design, is very difficult to amend. It guarantees specified rights; distinguishes between legislative, executive and judicial powers; limits the national government to enumerated powers; and reserves the rest to “the states respectively, or to the people.”
Israel, by contrast, lacks a formal constitution. Its “basic laws,” which specify the structure of government and promise respect for “human dignity and liberty,” were enacted by the Knesset, which can change them at will.
Nor does Israel clearly separate legislative and executive powers: Any coalition of parties that commands a majority in the unicameral Knesset controls the cabinet as well as the legislature. And without federalism, that same majority can impose its will throughout the country.
In this context, judicial review is both more important and more precarious than it is in the United States. At the same time, the legitimacy of that power is open to question when courts go beyond interpreting and applying the law.
As the right-wing legislators in Prime Minister Benjamin Netanyahu’s coalition see it, that is what the Israeli Supreme Court has repeatedly done. The concept of “reasonableness,” which was developed by the courts without a statutory basis, illustrates their point.
According to the Israel Democracy Institute, which opposes the current government’s judicial reform agenda, that test asks not only whether executive policy makers relied on valid legal authority and followed “proper procedure” in reaching a decision. It also asks if “appropriate considerations” were applied, which opens the door to subjective second-guessing of elected officials’ choices.
The Israeli Supreme Court has deployed the “reasonableness” doctrine, for example, to block the appointment of ministers who were accused or convicted of crimes. The IDI also cites judicial decrees regarding day care subsidies, safety precautions in schools threatened by rocket attacks, recognition of “doctoral degrees issued by foreign universities,” and construction of a mikvah (ritual bath) for women in the town of Kfar Vradim.
Daniel Friedmann, a law professor and former justice minister, agrees that the “reasonableness” test gave the Israeli Supreme Court too much discretion. “It enables the court to replace all other authorities,” he told The New York Times before this week’s Knesset vote. “The scope of action should be narrowed.”
But the agenda of Netanyahu’s allies goes far beyond such tweaks. Members of his coalition have proposed changes that would virtually eliminate judicial review, giving a bare majority the power to appoint judges and override court decisions while undermining the influence of advisers who weigh in on the question of whether a proposed law or policy is likely to pass legal muster.
Netanyahu faces corruption charges, a threat that could be eliminated by the proposed reforms, although he denies any such motivation. He also has to worry about maintaining his 64-member coalition’s control of the 120-seat Knesset.
Netanyahu nevertheless has echoed President Isaac Herzog’s warning that the conflict over judicial power raises the threat of civil war. He says a bill allowing the Knesset to negate court decisions is off the table and suggests that consideration of other legislation should be delayed until November.
The prospect of a compromise that would preserve judicial review while curbing its excesses currently seems remote. But it still might be possible if Netanyahu’s allies reflect on the risk that the next election could deliver the government’s newly expanded powers to the opposition.