By Morton A. Klein, Elizabeth Berney, Esq.

(FEBRUARY 12, 2023 / JERUSALEM POST) The Left has been screaming that the new Israeli government’s judicial reform proposals are “extreme” and “the end of democracy.” However, honest examination reveals that the Israeli Supreme Court has extraordinary, autocratic, unchecked power; that reform is desperately needed, and will be good for democracy, the rule of law and Israel’s economy.

Democracy is rule “of the people, by the people, for the people.” Israeli and U.S. legislatures and executive are democratically elected and answerable to the public.

But U.S. and Israeli judicial systems are vastly different, starting with judicial selection. The U.S. public selects judges through its democratically-elected representatives: The president nominates new justices; the Senate decides whether to confirm them; and Congress has the power to impeach justices.

By contrast, in Israel, the Supreme Court self-selects and self-ousts its own justices. The court has the controlling vote and veto on a nine-person “judicial selection committee” that selects new judges. The Knesset has no power to impeach justices. Justices can only be removed by the same “judicial selection committee” controlled by the Israeli Supreme Court, or by a disciplinary court appointed by the Israeli Supreme Court.

The Israeli Supreme Court’s “self-selection” and continuing control over the court’s composition has enabled the Court to seize and maintain enormous, unchecked power.

Thus, in a Wall Street Journal op-ed, Minister Bezalel Smotrich suggested adopting a democratic U.S.-style judicial selection process. ZOA previously made the same sensible suggestion. Promoting democratic judicial selection is surely not an “extreme” position.

Notably, a weaker (even more non-extreme) judicial selection reform is currently under consideration – replacing two Israel Bar Association representatives (i.e., two lawyers beholden to the court) on the judicial selection committee with two appointees of the justice minister. This would still leave the justices with enough votes to veto selections.

Customarily, democracies also place checks and balances and limits on the power of each branch of government.

Thus, the U.S. Supreme Court must uphold the U.S. Constitution; can only hear limited types of cases and actual, justiciable controversies between parties who have legal “standing” (an actual, redressable injury related to an alleged wrong); does not determine nonjusticiable political policy questions (the “political question doctrine”); does not rewrite laws; and requires a six-Justice quorum to hear typical cases (approximately 80 cases per year).

Israel’s Supreme Court

By contrast, Israel’s Supreme Court has usurped and arrogated to itself the power to flout, invalidate and rewrite laws and policies enacted by the people’s elected Knesset and government representatives simply because Justices subjectively viewed those democratically-enacted laws and policies as “unreasonable” or “inappropriate.”

Moreover, the Israeli Supreme Court, convening as the High Court of Justice, hears petitions from parties without “standing” and cases that are nonjusticiable in Western democracies. The court even determines political and military policies.

As a result, George Soros-funded anti-Israel NGOs bring a continuing flood of “lawfare” (legal warfare) cases to harass the Israeli government and the IDF. This could not happen in the U.S. or any other normal Western judicial system.

Further, panels of only three justices decide most of the Israeli Supreme Court’s 10,000 cases per year. Thus, just two Israeli self-appointed justices (the majority of a three-judge panel) can nullify Israel’s elected legislature and government, based on those justices’ personal preferences.

THE MANY horrendous Israeli Supreme Court decisions include:

• The court permitted interim prime minister Yair Lapid to surrender over 300 miles of Israeli maritime territory and gas fields to Hezbollah-controlled Lebanon without the legally required Knesset vote and national referendum. The court’s violation of Israel’s referendum law will enrich Hezbollah with billions of dollars and damage Israeli security and the Israeli economy. This case demonstrated that the current system is disastrous for the economy; and that judicial reform will help Israel’s economy. Economies thrive in systems based on the rule of law – not places where judges’ personal preferences reign.
• The court blocked the IDF from razing buildings used by terrorists to attack Israelis passing on the nearby road, even though the army planned to pay compensation to the absentee building owners. The Supreme Court’s decision resulted in a horrific tragedy: the Arab terrorists then used the buildings to slaughter a young pregnant mother, Tali Hatuel, driving along the road, and her four young daughters, ages two to 11 years old.
• The Court permitted terror-supporting political parties who openly seek to violently overthrow Israel to run for Knesset. The Israeli Supreme Court overturned the Knesset Central Elections Commission’s disqualification of these parties, and violated Israel’s Basic Law: Knesset, 7a, which bars parties and candidates that incite racism or support armed struggle by an enemy state or terrorist organization against Israel.
• The Court permitted the entry into Israel of an anti-Israel BDS activist who headed a BDS-organization Students for Justice in Palestine (SJP) chapter. This violated Israel’s 2017 law barring entry of BDS activists. Then-public security minister Gilad Erdan said: “the Supreme Court granted a great victory to BDS… [T]he Supreme Court’s decision… has undermined the ability of the State of Israel to fight the boycott activists who harm us all.”
• The Israeli Supreme Court froze the District Court’s and Magistrate Court’s orders to evict Arab squatters living on Jewish-charity-owned properties in the Shimon Hatzadik [-Sheikh Jarrah] neighborhood. The Supreme Court also ruled that the Arab squatters could continue living there until completion of land settlement procedures, a process that could take many years or never be carried out. This baseless ruling overturned 50 years of litigation in which the Jewish charities repeatedly proved their ownership of their properties.

A current reform proposal would permit the Israeli Supreme Court to only block or invalidate government actions that violate actual laws. The court would no longer be able to invalidate government actions simply because the justices don’t like the action or think that it is “unreasonable.” This reasonable reform is much needed to curb the court’s undemocratic excesses.

Another proposal (which is unlikely to be adopted) is to allow 61 Knesset members to override Supreme Court decisions. When court decisions are merely based on self-selected justices’ personal preferences, and when court decisions are not based on a constitution or laws, it furthers democracy and the rule of law to give democratically-elected representatives some override power. Constitutional republics also have legislative overrides. In the U.S., Congress can override Supreme Court decisions by passing constitutional amendments (plus obtaining state ratification); and can even override certain decisions simply by passing new laws.

It’s thus time to stop bandying about “extremist” labels, and for reasoned consideration of reforms to curb the Israeli judiciary’s unchecked undemocratic power.

Morton A. Klein is national president of the Zionist Organization of America (ZOA). Elizabeth Berney, Esq. is a graduate of the University of Chicago Law School and is ZOA’s director of research and special projects.

This op-ed was originally published in the Jerusalem Post and can be viewed here.