In the Israeli Battle Over Judicial Review, Democracy Is the Problem, Not the Solution

Opponents of the reforms favored by Prime Minister Benjamin Netanyahu's coalition should acknowledge the threat posed by unconstrained majority rule.

Critics of the Israeli government's controversial plan to limit judicial power, which has provoked bitter divisions, mass demonstrations, and warnings that the country may be on the brink of "a genuine civil war," often portray the proposed reforms as a threat to "democracy." The truth is almost exactly the opposite.

Prime Minister Benjamin Netanyahu's allies argue that an independent judiciary with the power to override legislation constrains democracy by frustrating the will of the majority. They are right about that. But their opponents are right that unconstrained majority rule is a recipe for tyranny. In this context, democracy is the problem, not the solution.

As a parliamentary democracy without a formal constitution, autonomous lower levels of government, or a clear division between executive and legislative powers, Israel relies heavily on judges to protect individual rights. But those judges have only as much authority as the Knesset, Israel's parliament, is willing to give them. Israel's "basic laws," the main foundation of judicial review, were enacted by the Knesset, which can change them at will.

The Knesset enacted the basic law dealing with "human dignity and liberty" in 1992 under the government of Prime Minister Yitzhak Shamir—like Netanyahu, a member of the right-wing Likud bloc. That was followed by a basic law dealing with "freedom of occupation," which the Knesset enacted in 1994 under Labor Party Prime Minister Yitzhak Rabin.

According to the 1992 basic law, "every human being is entitled to protection of his life, body and dignity," "the property of a human being shall not be violated," and "the liberty of a human being shall not be taken or restricted, by means of imprisonment, detention, extradition, or in any other manner." The law also says "every person is free to exit Israel," "every Israeli citizen who is abroad is entitled to enter Israel," and "every person has a right to privacy and to intimacy." That last right includes restrictions on searches of "private premises" and protection for "the confidentiality of conversation" and of "writings or records."

The 1992 basic law, which passed by a vote of 32 to 21, did not "affect the validity" of any preexisting law. But going forward, it says, "each and every government authority is obliged to respect the rights" protected by the basic law, which may not be violated except "by means of a law that corresponds to the values of the State of Israel, which serves an appropriate purpose, and to an extent that does not exceed what is required." The latter provision was later amended to include any regulation expressly authorized by such a law.

The 1994 basic law, which was approved unanimously, added that "every citizen or inhabitant of the State is entitled to engage in any occupation, profession or trade." It likewise requires "all government authorities" to respect that right and declares that "there shall be no violation of freedom of occupation except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or by regulation enacted by virtue of express authorization in such law." A subsequent amendment added that the Knesset nevertheless can restrict that freedom if it "explicitly states" that the regulation "is valid despite what is stated in this Basic Law."

The exceptions to these protections left much room for discretion and interpretation. In that respect, they resemble the "notwithstanding clause" of the Canadian Charter of Rights and Freedoms, which says "Parliament or the legislature of a province may expressly declare" that a law "shall operate notwithstanding" the rights protected by the charter.

The basic laws do not say who determines when the rights they guarantee are violated. But the Israeli Supreme Court has taken on that function since 1995, when it ruled that it has the authority to overturn statutes that conflict with basic laws.

Dan Meridor, who was the justice minister when the 1992 basic law was enacted, says, "Likud approved it, was proud of it and said we'd continue it." Although the major parties disagreed "on all sorts of things," he adds, "there was no real debate on the importance of an independent judiciary, and abiding by their decisions."

Since 1992, Israeli law professors Amichai Cohen and Yuval Shany note in a recent Lawfare article, the Israeli Supreme Court "has invalidated 22 laws or legal provisions on the basis of its new powers of judicial review of legislation." Among other things, those cases involved the government's treatment of asylum seekers, discriminatory tax rates, expropriation of privately owned Palestinian land, religious exemptions from military service, due process for detainees, and regulation of private prisons.

The impact of those decisions "far exceeded the 22 laws or provisions that were struck down," Cohen and Shany write. "The question of whether or not new legislation would survive scrutiny by the Court has become a dominant consideration in the legislative process, and government and Knesset legal advisers who could predict the Court's position (and might have to ultimately defend challenges to the constitutionality of new legislation before the Court) obtained considerable influence over the legislative process."

This is the "constitutional revolution" that Netanyahu's coalition partners resent. Cohen and Shany note that "all basic laws could be amended rather easily." Changing the 1992 basic law requires support from a majority of voting legislators, for example, and just 61 votes (out of 120 total) are enough to amend the 1994 basic law. Netanyahu's coalition controls 64 Knesset seats. But rather than mount a frontal assault on the basic laws, which would be even more contentious than the agenda it is pursuing, Netanyahu's coalition wants to curtail judicial review through legislation.

Among other things, Cohen and Shany explain, "the proposals seek to limit the Court's authority to strike down legislation to those cases that substantively contradict an explicit provision of the basic law…or 'clearly contradict[] an enshrined provision.'" That would limit "the Court's ability to interpret provisions of basic laws expansively and to protect unenumerated human rights." For example, the Supreme Court might no longer have "the power to invalidate laws that infringe on the right to equality—a right not mentioned in basic laws but considered until now by the Court as implicit in the constitutional right to human dignity."

Members of Netanyahu's coalition also have proposed requiring a supermajority of the Supreme Court to invalidate a statute; eliminating the precedential force of such rulings; and authorizing the Knesset to override the court's decisions whenever 61 legislators disagree with them. Other proposals would guarantee the ruling coalition a majority on the committee that selects judges and reduce the authority of the government's legal advisers.

In practice, Cohen and Shany say, those reforms would mean "the end of judicial review of Knesset legislation. Even in the rare cases in which the Court would strike down legislation, the Knesset will be able to either override it or re-enact it as a basic law, thereby avoiding judicial review." The upshot, they write, would be "a drastic change in the allocation of powers across the branches of government."

That change, Netanyahu's allies argue, would protect democracy from arbitrary interference by unelected judges. Aharon Barak, who served as president of the Israeli Supreme Court from 1995 to 2006, "has brought disaster on Israel," says Justice Minister Yariv Levin. "His path stands in contrast to democracy. To him, judges are preferable to the people's elected officials." That argument is familiar in the United States, where critics on the right and left commonly complain that their policy preferences have been thwarted by dubious statutory and constitutional interpretations.

The government's opponents, by contrast, say the legislation it supports would "tear apart Israel's democracy," as New York Times columnist Thomas Friedman puts it. Former New York City Mayor Michael Bloomberg likewise warns that Netanyahu is threatening to destroy "the very democracy upon which the country was built."

Does that mean Israel was not a democracy prior to the "constitutional revolution" of the 1990s? Even then, the government was run by popularly elected officials. But those officials had more leeway to do as they pleased once they were elected, which is the basic problem that judicial review is supposed to address.

Bloomberg's respect for judicial review, it should be noted, is a relatively recent development. Back when he was doggedly defending New York City's "stop, question, and frisk" program, he did not have much respect for U.S. District Judge Shira Scheindlin's conclusion that it violated the Fourth Amendment. "There is just no question that stop-question-frisk has saved countless lives," he said. "And we know that most of the lives saved, based on the statistics, have been black and Hispanic young men." He complained that Scheindlin "made it clear she was not interested in the crime reductions" and "ignored the real-world realities of crime."

The current Israeli government, like Bloomberg, does not want to be restrained by judicial review, which it sees as undemocratic meddling with decisions by "the people's elected officials." Framing that attitude as anti-democratic misses the point.

According to Times reporter Isabel Kershner's gloss, "Critics of the government's plan say it would destroy the independence of the courts and the country's democratic system." But democracy and judicial independence are two different values that frequently conflict with each other.

The Times is on firmer ground when it says critics believe "the legislation would change the Israeli system from a liberal democracy with protections for minorities to a tyranny of majority rule." This is not a battle between democracy and autocracy. It is a battle between people who prioritize democracy and people who recognize, as the Framers did, that unlimited democracy is a menace to liberty.

[This post has been revised to reflect the distinction between Netanyahu's personal priorities and his coalition partners' demands.]