Israeli judicial reform is not about undermining democracy

The modern state of Israel just observed its 75th anniversary of independence. It’s an occasion worthy of unrestrained celebration. A country that in its entire existence has not had a single day of peace with all its neighbors is remarkable. One that has flourished as much as Israel despite such mortal dangers is a miracle. For religious believers, a country with Israel’s unparalleled biblical lineage is quite literally divinely inspired. 

And yet, at this historic moment, many Israelis and Israel supporters around the world are filled with angst. At a Passover seder I attended this month, the host posed the question: “What lessons can we learn from the past few months about the character of Israel today?” 

The question was aimed at the recent controversy surrounding the new Israeli government’s proposed judicial reforms. There’s much policy and politics to unwrap here. First, the proposed reform is hardly radical. Second, it is unlikely to have garnered nearly such protest had it been proposed by someone other than Prime Minister Benjamin Netanyahu and his new coalition partners. 

On the substance, Israelis from across the political spectrum have long had an uneasiness about its court system. Discussions of reforms are not new. At root is the distribution of authority between legislative and judicial functions. This is part and parcel of democratic governments worldwide, with each coming to a somewhat different conclusion.   

Americans are accustomed to a constitutional system with a delineated separation of powers and checks and balances between three co-equal branches. This provides much power to the Supreme Court. But even the American system has generated numerous battles between the popularly elected branches and the judiciary. As far back as the 1830s, President Andrew Jackson is reported to have reacted to a Supreme Court decision he disliked by saying, “John Marshall has made his decision; now let him enforce it.” 

The British system is quite different. Its doctrine of parliamentary sovereignty severely limits the powers of judicial review. Its highest court cannot overturn any primary legislation made by Parliament. 

The approach is different again in France, Germany and Japan. Each democracy comes to a different conclusion about the proper distribution of government powers. Academics might scratch their beards and consider whether those differences make one system more democratic than the others. But no one claims any of those countries is undemocratic. 

The Israeli high court has long exercised powers beyond the bounds that are accepted or even recognizable in other leading democracies. It commonly applies its own “reasonableness” standard to overturning legislation. It is, in that sense, the polar opposite of the British system. Whereas the British high court may not invalidate any act of Parliament, the Israeli high court may invalidate every act of the Knesset on virtually any grounds it deems “reasonable.”   

Which system is preferable is a matter of legitimate debate. The Israeli judiciary has its firm defenders as well as its determined critics. The existence of this robust debate, however, is not tantamount to an “end of democracy,” as many reform opponents claim. Quite the opposite. It is a democratic expression of an effort that would align Israel’s division of government authority more closely with those of other leading democracies around the globe. 

Why then, has this proposal generated so much angst that Israelis by the tens of thousands have taken to the streets in protest? That President Joe Biden felt compelled to weigh in against it? That Israel’s “character” is being questioned on Passover? 

There are multiple reasons, but it’s mostly a matter of politics.   

Let us stipulate that a prime minister who is under indictment is not the best advocate for judicial reforms. The appearance, if not the reality, of self-dealing is too inescapable. In the case of Netanyahu, it is compounded by him being Israel’s most polarizing politician.   

To a sizeable minority of Israel’s population, anything Netanyahu is for must be considered not only bad but a danger to all things good. In certain communities in Israel, at some Passover tables, and in some corners of the White House, there’s a virtue-signaling effect — being against Netanyahu demonstrates one’s own wisdom and social worth. 

That’s an unfortunate aspect of democratic politics, but it’s far from new in Israel or elsewhere. It is, as they say, a feature of democracy, not a bug. 

Netanyahu recently surpassed David Ben Gurion as the longest-serving prime minister in Israeli history. Unquestionably a towering figure as the leader of Israel’s founding generation, Ben Gurion has acquired a deserved lionized status. Lionization, however, at times obscures less commendable aspects of historic figures’ records. 

Ben Gurion’s bitter political nemesis was Menachem Begin, himself a towering figure in Israeli history. During various controversies, Ben Gurion referred to Begin as an “enemy of the Jewish people,” and a “fascist,” and compared him to Hitler. Hardly gentle language in the immediate aftermath of the Holocaust, and grotesquely unjustified. 

Such vitriol, infighting and even hatred have been part of Israeli politics in every one of its 75 years. The challenge for Israel’s supporters is to overlook the disputes and election outcomes of the day. Disputes end. Another election is always around the corner.   

Seventy-five years of an independent Jewish State is exceptional. It is well worth a full-throated celebration. 

Jon Lerner is a senior fellow at Hudson Institute.