On July 24, a bitterly divided Knesset (with its 120 members) passed a law that limited the power of the Supreme Court of Israel to invoke a judicially manufactured “unreasonableness” standard to maintain a level of control over the political branches of government, a feature found nowhere else among Western democracies. The Knesset vote was 64–0, as the opposition walked out, protesting that this law amounted to a dangerous threat to democracy. The change will return to the political branches power over matters that nowhere else in the world are assigned to the judiciary.

This extraordinary power, which has been exercised since the 1990s, allows the Israeli Supreme Court to order the prime minister to fire from his cabinet any minister who is part of an investigation of criminal activities. This amounts to a clear circumvention of the basic law that only allows removal from office upon the conviction of some criminal offense. That same judicial authority allows for the Supreme Court to block natural gas deals or direct national welfare policy on the basic premise of the “right to a minimal dignified human existence.”

The incongruous nature of this power has long been criticized. Thus in 2007, Judge Richard Posner, in his day no shrinking judicial violet, wrote a review, titled “Enlightened Despot,” of a then-recent book titled The Judge in a Democracy, by Aharon Barak, the forceful judge who led the revolution. Posner noted that “Barak created out of whole cloth a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.” After all, US Supreme Court justices work within the framework of a written constitution that has an amendment process; an elaborate system of separation of powers; checks and balances; and a bill of rights. Israel has no written constitution. None of the judicial power wielded by the Israeli justices could be improvised under a customary written constitution, which would be based, as Alexander Hamilton famously stated in Federalist No. 1, on extensive deliberation, e.g., a constitutional convention to form a government based on “reflection and choice” and not “accident and force.”