The Volokh Conspiracy
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Guest Post on Israeli Supreme Court Decision Striking Down Law Restricting Judicial "Reasonableness" Review of Government Policies
The post is by prominent Israeli legal scholar Ronit Levine-Schnur (University of Tel Aviv).
The Supreme Court of Israel recently invalidated a controversial law limiting judicial "reasonableness" review of government policies. I previously wrote about the law here. To analyze the decision, we are pleased to publish a guest post by prominent Israeli legal scholar Professor Ronit Levine-Schnur. She is a faculty member at the Law Faculty, and co-head of the Center for Applied Research of Risks to Democracy, at Tel Aviv University. We are grateful to Prof. Levine-Schnur for taking the time to share her insights on this important ruling, especially during this difficult period in Israel's history.
The remainder of this post is by Prof. Levine-Schnur, not me (Ilya Somin):
In the course of one year, Israel—an intense country on a regular basis—has been pushed to its foundational limits. As a Jewish and democratic state, Israel's internal and external conflicts have always been extensive. But 2023 was a year beyond the worst expectations. The October 7 sudden and repulsive attack, massacre, and kidnapping of civilians by Hamas, were horrific which targeted Israel as a Jewish state, and Israelis as Jewish (although not all the victims were). It brought back living memories of the Holocaust. One of many stories to mention is of that Dr. Hayim Katsman, who was shot dead while hiding in a closet at his home in Kibbutz Holit, exactly 80 years after his ancestors in Poland were deported and killed at the Treblinka extermination camp. Unfortunately, the horrendous events of October 7 (and its aftermath) came after 9 demanding months of a wholly different kind of attack on Israel's democracy.
On January 4, 2023, Israel's newly sworn-in government, presented its plan for a "governmentality reform." This plan, for both its supporters and opposers, targeted the democratic nature of the Israeli state. The supporters, primarily represented by the Justice Minister, Yariv Levin, and the Head of the Parliamentary Constitution Committee, MK Simcha Rothman, argued that Israel's democratic character is undermined by the Supreme Court, the Attorney General, and other gatekeepers, who prevent the government from executing the "people's will" by putting restraints on its power. To fix this, and to strengthen Israel's democracy, so they claimed, they advanced 5 central amendments, all of which aim to weaken the grip and independence of the judiciary and the gatekeepers as a means that balance the power of executive.
In the eyes of many, the proposed changes were not democracy-enhancing at all. If approved, they argued, Israel would no longer be considered a democracy, as their adaptation would lead to an unrestrained government. Even before all these changes were to be enacted, the executive branch in Israel already possessed extraordinarily powers compared to most democracies. It effectively controls the parliament and its lawmaking agenda (including the enactment of basic laws, as will be explained below), and it lacks all the constraints and checks and balances that exist in the U.S. and many other constitutional democracies (such as an entrenched constitution, bicameralism, presidential veto, federalism, etc.).
The government's plan for reform was supposed to be implemented as statutory amendments to Israel's Basic Laws. The term "Basic Law" has no formal meaning under Israeli legislation. Israel has no written constitution, and in particular, there is currently no law that sets the rules for legislating and amending constitutional norms. There is no formal norm that differentiate the legislative procedure of ordinary laws and constitutional ones. This lack of formality is the result of a 75 year-long tradition of legislating portions of the emerging constitution as basic law, without this tradition itself being properly legislated. While for many years basic laws were enacted on broad consensus and were rarely amended, in the past decade there has been an ongoing deterioration of this practice, where the pace of amendments lost control and the custom of broad consensus was abandoned. Basic laws were now often used to solve concrete political issues.
As an illustration, the average rate of amendments between 2014 and 2022 stood at 4.75 changes a year, compare with less than 0.15 changes a year on average in the USA (since 1789). Moreover, basic laws were now enacted or amended based solely on the vote of ruling coalition members, hence, without a consensus which crosses the coalition-opposition lines. As Justice Amit commented: "the Israeli constitution is extremely flexible, almost spineless, in a way that allows it to win the floor gymnastics world championship for constitutions." Thus, if a presiding government utilizes its legislative powers it can, almost overnight, enact any basic law it aims, ostensibly, even if it leads to a severe harm to Israel's nature as a Jewish and Democratic state.
The five components of the government's plan included: 1. Granting the government an absolute control over the appointment of judges and justices to all courts. 2. Preventing judicial review of basic laws. 3. Preventing or severely limiting judicial review of regular Knesset legislation, and allowing the ruling coalition to "override" the effect of judicial review with its guaranteed majority in the Knesset. 4. Significantly diminishing the role of the Attorney General and government legal advisors as gatekeepers. 5. Preventing judicial review of the executive power of the government and its ministers based on unreasonableness grounds.
During the first 9 months of 2023, the government—who under the Israeli system controls the unicameral legislature (the Knesset)—pushed as hard as it could to legislate its reform. It faced, however, an unprecedented resistance, were for over 39 weeks, Israelis protested and disrupted as much as they could to the government's plan.
On July 24, despite the mass public protests, the objection of many legal, economic, military and other experts and former senior officials, and the decision of reservists in the air force and other units not to continue their voluntary military service if the law is amended, the "Unreasonableness Amendment" passed the second and third readings in the Knesset and became law. The law takes the form of an amendment to Section 15 of the Basic Law: The Judiciary. This section defines the jurisdiction of the Supreme Court sitting as a High Court of Justice to review governmental acts and decisions. According to the Amendment, no court of law, including the High Court of Justice, may consider and/or pass judgment on the reasonableness of any "decision" of the Cabinet, the prime minister, or any other minister; nor may a court give an order on the said matter based on its purported unreasonableness. The Amendment defines a "decision" as "any decision – including in matters relating to appointments, or a decision to avoid exercising any authority."
As the Israeli Law Professors' Forum for Democracy analyzed, the immediate danger of the Amendment is in the field of corruption, both in the use (or rather misuse) of public funds and in the field of government appointments and removal of officials from office. The principal immediate threat could be a government decision to dismiss the Attorney General who heads the state public prosecution, and to replace her with a lawyer who will be favourable to halting the prosecution of PM Netanyahu on charges of corruption. Another fear is that the Court will not be able to intervene in the refusal of the Minister of Justice to convene the Committee for the Selection of Judges. The more general danger, moreover, is that obliterating reasonableness as a legal standard would be seen by the government and its ministers as a general license to act unreasonably. The Amendment will weaken the power of legal advisers at all government levels to curb illegal, corrupt, and politically-motivated decisions. A principal tool for curbing such decisions and acts at the departmental level are legal advisors' warnings that such acts would likely be struck down by administrative courts on grounds of manifest unreasonableness. This crucial process of nipping institutional (as well as personal) corruption at the bud has now been eliminated, with no alternative mitigating measure instated in its place.
Indeed, the constitutionality of the Amendment was immediately put to test, and as the new year begun, the Supreme Court delivered its monumental decision, a first of its kind en banc case decided by all its 15 justices.
The Supreme Court faced the following questions:
- Is the Knesset, as a constituent authority, limited in its powers to enact basic laws.
- Assuming that the answer to the above question is affirmative, the following question is whether the court is authorized to conduct judicial review on basic laws, and whether it can determine that the Knesset exceeded its authority in enacting a basic law.
- Assuming that the answer to the previous question is positive, the third question arises - did the Knesset deviate from its authority as a constituent authority in amending the "Unreasonableness Amendment," in a way that requires a declaration of the invalidity of the amendment. This question requires first to determine the correct interpretation of the amendment.
Of 15 justices, a majority of 13 ruled in the affirmative on the first two questions. Two other justices denied both the existence of limitations on the constituent power and the court's authority to review basic laws. Among the majority, there is some variation between the justices concerning the kind of limitations imposed on the constituent power, but they all agree that they are essentially concerned with Israel's nature as a Jewish and Democratic state. There is also some variation concerning the source of legitimacy for the court's power to conduct judicial review, but it essentially rests on either the "constitutional existentialist facts" or the Declaration of Independence, or on existing basic laws. Of the 13 justices, a few were more cautious than others in crafting the scope of review.
This caution is reflected in that of the 13 justices mentioned, eight found the Amendment unconstitutional and void, in that it cannot be reconciled with the principles of separation of powers and the rule of law, "which are two of the most important characteristics of our democratic system. Such an infringement to the very heart of our founding narrative cannot stand" (Ret. Chief Justice Hayut). Justice Amit clarified that the Amendment should be assessed given "the democratic deficit in which the country is, which lacks 'engines of democracy' that exist in many countries in the world and which contribute to the strengthening of the democratic foundation." Thus, the Amendment "steps in the opposite direction and further strengthens the power of the executive authority… such a blanket denial of unreasonableness as a ground for judicial review has a much higher specific gravity than in other countries."
Three other justices found that the Amendment could be interpreted in such a way that makes its effect on Israel's democratic character below the unconstitutionality threshold. Here the interpretation adopted by the justices—which limits the unreasonableness doctrine denied by the Amendment to a strictly limited component of it (the balancing test)— is tricky. Both during the legislative process and in oral testimony before the Court, MK Rothman clearly explained that the subjective intention of the legislator is to deny the doctrine all together. For the three justices, who are usually considered as conservative ones, it was extremely important to avoid the more drastic step of annulling a basic law. Adopting the narrow interpretation, contra to the explicit intention of the legislator, seems to contradict their (especially one of them – Justice Alex Stein) commitment to a more originalist mode of interpretation.
To conclude, in its decision, the Israeli Supreme Court declared the first component of the judicial reform as an unconstitutional constitutional amendment. More importantly, in this landslide decision, the Supreme Court not only announced the limits of the Knesset as a constituent assembly, but also effectuated these limits by clearly positing it can announce basic laws as unconstitutional and void. The decision raises, of course, many questions and dilemmas. It will inspire endless accounts and analyses. The only hope is that instead of leading to a further divide among Israelis it would do the opposite. After this annus horribilis, many conceptions should be rethought. A good starting point in strengthening Israel's democracy, is in creating a joint mechanism involving members of both coalition and opposition, that would prepare a basic law which determines how constitutional norms are to be enacted. This would allow us to put the current Court's decision in proper perspective: it was the unavoidable outcome of a longstanding failure to properly establish the institutions that hold Israel's democracy intact.
