The Volokh Conspiracy
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New Israeli Government's Judicial Reforms are not Anti-Democratic - But they May Create a Tyranny of the Majority
By destroying judicial review, they would empower the narrow right-wing majority to violate the rights of minorities.
The new right-wing Israeli government headed by Prime Minister Benjamin Netanyahu has put forward reform proposals that, if enacted, would largely destroy judicial review, and concentrate more power in the hands of ruling politicians. Critics have denounced the reforms as anti-democratic. For example, Aharon Barak, the famed former Chief Justice of the Israeli Supreme Court, warns that the government's plan will "strangle democracy." In reality, the plan would actually enhance democracy, in the sense of increasing the power of the elected representatives of political majorities. The real danger it poses is not that of too little democracy, but too much - thereby setting the stage for a dangerous tyranny of the majority. As Attorney General Gali Baharav-Miara (another opponent of the proposal), puts it, the enactment of these reforms "would give [the] government unrestrained power."
As Brookings Institution scholar Benjamin Wittes - a critic of the government's plan - explains, the plan includes 1) an "override" system under which the Knesset (the Israeli parliament) can easily override judicial decisions by a simple majority vote, 2) puts judicial selection almost entirely under the control of the incumbent government, whereas currently it is in large part controlled by the judges themselves, 3) eliminates the "reasonableness" standard of judicial review of government action, making what little judicial review remains much more deferential, and 4) neutering much of the power of the attorney general (who is traditionally independent of the government of the day).
The net effect of these proposals would be to empower the government of the day to do as it wishes with little or no constraint from the judiciary or anyone else. As Wittes emphasizes, in Israel there is no system of federalism or separation of powers of the kind that exists in the US and many other democracies. In the absence of meaningful judicial review, government power would be almost entirely concentrated in the hands of whoever can get 61 seats in the 120-seat Knesset.
If you want to empower democratic majorities, it's hard to beat that system! The majority would be able to do almost anything it wants.
But it's deeply problematic if you want to protect minority rights against overbearing majorities. This is a particular menace in a highly diverse and deeply divided society like Israel. Netanyahu's new coalition includes theocratic and ultra-nationalist parties that seek to oppress the country's large Arab minority, and in some ways also more secular Jews. Itamar Ben-Gvir, the new government's minister of security, has a long history of anti-Arab bigotry. Some of the other members of the new coalition government are even worse.
Over the last thirty or so years, the Israeli Supreme Court has issued numerous decisions protecting the rights of ethnic and religious minorities, as well as civil liberties, and property rights, in what would otherwise be an overwhelmingly majoritarian system. But the Court's power has always been somewhat anomalous, given that Israel has no written constitution. The Court's authority is based on a series of Basic Laws enacted by the Knesset that, over time, have come to be seen as elevated above ordinary legislation, and amendable only by special new legislation. In principle, however, the system could always be upended by new legislation enacted by a bare majority. And the new Israeli government seems intent on breaking the political norms that have blocked such action up till now.
In addition to threatening minorities, the new government seeks to neuter the judiciary and the attorney general in order to protect criminality in its own ranks. Netanyahu himself is under indictment for corruption, and the weakening of the courts and attorney general might help him avoid conviction. Shas Party leader Aryeh Deri, the new government's proposed interior minister and health minister, has been blocked from assuming those positions by the Supreme Court, because of a conviction for tax offenses, arising from a plea bargain agreement in which he apparently promised to stay out of public office. If the Court gets neutered, Deri will likely be able to take over these positions unimpeded.
Persecuting minorities and empowering corrupt politicians are very bad, but not necessarily anti-democratic. Indeed, protecting minorities and and limiting the influence of corrupt demagogues are classic rationales for limiting the power of democratic majorities.
The new government's judicial reforms might end up having an anti-democratic effect if they facilitate laws impeding political participation, for example by restricting the freedom of speech and freedom of association of the opposition. That's certainly a potential danger. So far, however, the coalition has not put forward such an agenda.
Legal theorists have long recognized that judicial review - while in many ways a constraint on democracy - can also help protect democracy when it blocks governments from suppressing opposition or rigging the electoral system in favor of incumbents. In the short to medium term however, the main threat posed by the Israeli reforms is tyranny of the majority - not the destruction of democracy.
In recent political discourse, there is an increasing tendency to use "anti-democratic" as simply a synonym for "bad," and "democracy" as a synonym for "good." In that sense, the Israeli reforms might be anti-democratic, after all. But for reasons I summarized here, this usage impedes rather than facilitates analysis:
The conflation of what is "democratic" with what is right and just has a number of unfortunate consequences. First, it promotes intellectual confusion. Second, and more importantly, it essentially defines away the possibility that democracy – understood, more reasonably, as a majoritarian political process – should be constrained in order to protect other values, and counter various predictable pathologies of democratic government, such as widespread voter ignorance and oppression of minority groups.
All too often there are trade-offs between democracy and other values, such as liberty, equality, and justice. We shouldn't let terminological confusion blind us to that reality.
This point applies to Israel, as well as the United States.
While I oppose the new government's reforms, I do think the situation highlights the precariousness of Israeli judicial review, and the danger of relying on it too much, as a protector of civil liberties and minority rights. Israelis who seek to protect liberal values would do well to promote other institutional constraints on the powers of the Knesset majority, such as federalism and a system of separation of powers. Federalism, in particular, is an option that might work well for Israel, a nation with a range of different communities with divergent cultures and local majorities. Under federalism, the relatively small size of the country (resulting in low moving costs) could also empower those dissatisfied with local conditions to "vote with their feet." Foot voting is itself a powerful mode of political choice and an additional protection for minorities.
Federalism is far from a panacea for tyranny of the majority. But neither is judicial review. In both cases, much also depends on how the system in question is structured. Ideally, government power should be limited by a variety of interlocking institutional constraints, not by putting all our eggs into a single basket, such as a court system whose power rests on vulnerable foundations. Israel's present situation highlights the risks of the latter strategy. But the problem of constraining majoritarian abuses is one faced by virtually all democracies.
