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What the Heck Is Going on in Israel?
Israelis hate it when American Jews have opinions. They reckon that one is not qualified unless and until one lives in the country. And I hear it — but the objection is really ad hominem, because an idea should be valued on its own basis, not that of its adherents.
The current craziness in Israel is an excellent example of where Israel needs to learn from other nations. The Supreme Court in Israel is a self-appointed cabal, with unelected authority that lacks any logical mechanism for restraint. It needs to be reformed.
The problem is that the reform proposed now effectively replaces the Supreme Court with a majoritarian tyranny: if the Knesset (Commons) votes in sufficient force, then the Supreme Court’s power is eliminated entirely.
The US has effective checks and balances. Not to protect the majority, but to protect the minority. That is what a constitution is for: to protect the rights of all against the popular mood. This is especially critical in Israel, because the divisions within the country are quite stark, and dehumanizing the “other” is always a risk.
The American Constitution really isn’t appropriate for Israel. But the principle of separation of powers, and checks-and-balances is. And here is a way to do it: the growing Israeli Constitution is called the Basic Law. It is a chapter-by-chapter amalgamation of laws. But right now, the Supremes can arbitrarily overturn any of it.
One solution would be to rule that any Basic Law reform that is passed with a majority of votes overall AND a majority of votes from the Opposition would be Supreme-proof. That would substantially protect minorities in a very simple way. The Supremes should be reconstituted as a new body that is appointed by a cross-section of society/political parties, and would, for all laws that are not Supreme-Proof, retain the power to provide a check on popular mandates.
But what do I know? I am an American Jew, with no plans to move to Israel. So this is a call for Israelis to weigh in!
Published in General
The US has no effective check on a runaway Supreme Court that interprets the Constitution so as to impose its own policy preferences on the country.
There is a potential check, in the form of a Constitutional amendment. This requires passage by 2/3 of Congress and 3/4 of the States. There is a second check, through amendment of the Constitution in a special convention, though this has never been used, and requires approval of 3/4 of the states.
Do you interpret these as ways to “replace[] the Supreme Court with a majoritarian tyranny”?
I don’t think so. The Israeli proposal may or may not be advisable, but I don’t think that rhetoric about “tyranny” is useful in evaluating it. Rather, it is a matter of degree, like many things, and would be an addition to the system of checks and balances.
There is another check: Congress can limit what cases can be brought.
When every government is a coalition of many disparate parties, a majoritarian tyranny is less likely than more elections.
Thanks for the summation, iWe. I read a piece on the situation before, but the histrionics were such that I couldn’t get a grasp on what the issue was.
I have always wondered if Congress limited what the Supreme Court could adjudicate, where does the case end? Does a Circuit Court make a final decision but then it’s limited to that Circuit’s jurisdiction? And who would enforce it if Congress legislated that SCOTUS couldn’t rule on topic X? Would it rely on SCOTUS saying “we can’t hear that case” or would they take a case anyways and rule on it and tell Congress to screw off basically making a showdown between Congress and SCOTUS with dueling laws/rulings?
Correct. Thanks, Bryan.
Though this may leave us subject to potential judicial overreach by state courts. State courts can rule on federal constitutional issues, though such decisions are subject to appeal to SCOTUS unless, as you note, Congress has limited the jurisdiction of SCOTUS.
Would you explain why you think that this is the case?
I can see at least one good reason. Israel isn’t pretty small, and it would be awkward to split it into several constituent states. Do you have anything else in mind?
There’s a third check:
Clean elections + majority votes for 50-plus Senators who respect the Constitution + majority votes in an Electoral College majority of states for a President who is willing to fight for the Constitution.
I 5hink too small
iWe, your title is clickbait to Israel-haters. Way to go! It also doesn’t appropriately introduce your commentary nor is the question it purportedly asked answered.
Israelis justifiably dislike ignorant non-citizens, Jew or otherwise, interfering in their self-governance. Don’t you hate it when some fool from the EU makes scornful comments about the US?
Here is a very balanced, detailed article about the proposed judicial reforms. It explains the history, what is being proposed, and the pros and cons of both. One thing: the Left had the upper hand in Israel from the beginning and built all of its infrastructure in its own image. The Right started to grow with the election of Menachem Begin (my favorite Prime Minister) and then increased when Netanyahu, as Finance Minister, ushered in reforms that led to Israel becoming, as it’s called, “the start-up nation,” in honor of the great increase in entrepreneurship and economic growth. The Right, consistently voted for by the majority, is looking to tear down some of the leftist, well, leftovers. I’m all for it. As in the US, when the Left started to see its foundations crumbling (since most Leftist foundations are unsound), the Judiciary set to work shoring up the foundation by amassing power to itself. The article is well worth a read. If you don’t have time for it, skim it. But don’t opine on Israel’s democratic credentials or history without knowing something about them.
I had an Israeli tell me one time that the only reason I supported Israel is because I’m a fundamentalist Christian and I’m trying to bring on the End of Days™.
“Firstly, I’m not a fundamentalist, unless you mean that whole Father, Son, and Holy Ghost stuff. And I’ve just checked my personal planner and immanentizing the Eschaton isn’t on there anywhere.”
How in the world can Congress rule on what cases can be brought?
There is a Separation of Powers clause in the Constitution.
Click on my profile, click on the link for conversations I’ve started, and do a Ctr-F for “jurisdiction-stripping.” (If it doesn’t work, try searching without the hyphen.)
Or . . . or just say that again, later when I have access to a keyboard and can more easily link myself!
No. An argument is correct or it is not. Play the ball, not the pitcher.
My brother wrote the below. I think he nails it. And yes, he lives in Israel:
So… we have a budding constitutional crisis in Israel. The Jewish minorities (ultra-Orthodox, brown and nationalist settlers) have gotten together and formed a somewhat stable coalition to run the government and sideline Israeli WASPs (White AshkenaSim with Protexia) who founded the country.
The bullwark of WASP defense is the Supreme Court which is a non-democratic body that gets to veto candidates for its own membership thus forming a self-selecting and thus fundamentally corrupt body (see exhibits Rabbinical Courts, Supreme Leader of Iran, Israel Bar Association Sex-for-Judgeships Scandal*s*).
The minorities coalition wants to essentially erase the Supreme Court in favor of government by whoever can garner the most votes – which isn’t and won’t be the WASPs so long as the brown/ultra-orthodox and settlers can get along. This government is likely to suppress minorities not in power (WASPs, Arabs etc…). This is the classic Tyranny of the Majority situation that has long been the curse of democracy and WILL undo this country if it isn’t checked.
Given these battle lines the sides are only ostensibly arguing about the role of the judicial system. In fact, they are arguing about the nature of life in Israel. Is the culture to be led by brown, ultra-Orthodox and nationalist elements or by WASPs with European ideas? The protests reflect this: they are far more focused on preserving European ideals (RESIST with a FIST, Handmaid’s Tale, shutting down a state that doesn’t reflect their values) than about specific aspects of the legislation. A giveaway is that the leadership of the opposition won’t parlay with the government over the law unless it is stopped first because the law itself isn’t the problem – the fact that they are out of power is.
For their part, the government seems to want to do what they are accused of. They have a recipe for domination and they want tyranny of the majority. So they aren’t really looking for solutions that close this down.
And then you have people like me. I don’t identify with either group. I care passionately about the rule of law, but not about the values of the WASPs. I care passionately about not having closed-loop power structures, but not about the values of the brown/ultra-orthodox/nationalists. I think there are a fair number of people like me, which is why millions haven’t come into the streets despite polling showing about 80% oppose the overhaul. They don’t want to associate with the WASP values.
For my part, I care about structure and I believe that so long as you preserve some civil society, well-crafted legal systems and power-structure can result in neither party getting what they want, and both parties getting what they need.
The WASPs can be the minority while having their rights (and the rights of other minorities) protected while the brown/ultra-orthodox/nationalists can run the government while having democratic limitations on their power.
It actually isn’t that hard.
1) Require Basic Laws – which can not be overturned by the courts – to have Government support plus the support of a majority of the opposition. If you want to pass Basic Laws, you have to work with the opposition.
2) When there is a Supreme Court vacancy, have a national election for candidates – but with a twist. The first vote getter wins, no runoffs. As the government is a mishmash of very different ideologies, the more unified opposition will actually have an advantage – unless the government chooses candidates who are inherently more balanced.
For all of those commenting who don’t know the background or the details of the proposed reforms, here’s a lecture (less than 10 minutes, in American English) by one of the architects of the reform:
There is nothing extreme being proposed. What should be shocking is the way things currently work.
The current protests are largely being led by a small, noisy, sometimes violent, group not unlike Antifa, and they’re cynically being exploited by the failed government against Netanyahu in much the same way protests were used against Trump. Many of the same people are behind both movements anti-Bibi and anti-Trump. Whatever the failings of both men, the anti-Bibi/Trump people are unhinged and are also many of the same people.