Israel’s Judicial Tyranny Has Been Diminished
By Morton A. Klein, ZOA National President
(JULY 26, 2023 / ISRAEL HAYOM) Those of us who believe in democracy and the rule of law should praise and cheer Israel’s democratically elected Knesset for overwhelming passing the first part of much-needed judicial reform, 64-0. The new law prevents the Israeli Supreme Court from striking down or reversing democratically appointed government officials’ actions simply because the court’s self-appointed, unelected left wing judges believe that the government’s actions are not “reasonable.” Thus, existing judicial tyranny has been diminished.
There were hundreds of thousands of Israelis in Tel Aviv rallying in support of this judicial reform, yet the media in Israel and America neglected to report this. (Instead, the media gave one-sided attention to anti-reform protestors.)
The pro-reform throngs understand that the reform is a victory for democracy, the rule of law, a democratic balance of powers, and curbing judicial tyranny in Israel. The “reasonableness standard” was abusive, violated democratically passed laws, was used to oust a democratically-elected minister, and was subjective: What’s unreasonable to one person is reasonable to another.
There were no criteria for judging “reasonableness”: It was simply the judge’s political or personal opinion and worldview! And when you have an Israeli Supreme Court dominated by left wing judges, who can substitute their own views of “reasonableness” for democratic government action, you get rulings that do not reflect the law or the people. I’m sure if the court had an overwhelming right-wing majority, the people in the streets opposing judicial reform would be supporting reform.
Moreover, “reasonableness” was an incongruous and unsafe standard for reviewing government action. For instance, when Israeli security officials place a security fence or checkpoint in a specific location to prevent terror attacks, it is dangerous to allow Supreme Court judges to overturn such security decisions because the judges believe that the location is “unreasonable.”
Passing the first part of judicial reform is also a victory over the unelected radical Left’s attempts to impose “mob rule.” It is also a victory over foreign interference, including the U.S. State Department’s funding of a major protest organizer.
The Israeli people have wanted judicial reform for years and elected a government that campaigned to finally pass judicial reform. It would be an anti-democratic travesty to allow Israel’s democratic process to be thwarted by the left wing mobs who obstructed vital roads and Israel’s airports, sometimes acted violently, and even tried to block Knesset members from entering the Knesset to vote today.
The primary reason why the Left is fervently opposing judicial reform is to thwart true democracy. Because Israel’s demographics, political opinions, and the democratically elected Knesset have moved to the right-of-center, the Left views the left wing Supreme Court as their only mechanism for imposing left wing policies, and for stopping the right-of-center policies supported by the majority of Israelis.
Distinguished U.S. jurists Richard Posner and Robert Bork condemned Israel’s Supreme Court as having excessive power and overreach that no court in any democratic nation in the world has or should have. A former U.S. Appeals Court judge, U.S. solicitor general, and Yale Law School professor, Bork detailed two decades ago that Israeli Supreme Court Justice Aharon Barak made Israel into the nation that had the worst “judicial deformation of democratic governance. . . . The Israeli Supreme Court is making itself the dominant institution in the nation, and authority no other court in the world has achieved.” (“Coercing Virtue: The Worldwide Rule of Judges,” by Robert H. Bork, AEI Press, 2003, p. 111.) The situation became even worse since Judge Bork wrote those words.
The passage of the “reasonableness” law is thus an important first step toward strengthening democracy in Israel.
But, much more needs to be done to democratically reform Israel’s judiciary, including requiring litigants to have standing (as is required in the U.S. and other democratic nations); requiring larger panels for certain decisions (instead of allowing two members of a three-judge panel to make major decisions); curbing the excessive, undemocratic and tyrannical power of the attorney general; and reforming the judicial selection system, to end the current absurd system in which judges have the ability to veto and hence control the selection of their successors.
Morton A. Klein is National President of the Zionist Organization of America (ZOA), the oldest pro-Israel group in the U.S.
This op-ed was originally published in Israel Hayom and can be viewed here.