Destroying the Rule of Law in order to Save it
Destroying the Rule of Law in order to Save it
4 Cases where Israel's Supreme Court Completely Overreached
If you’ve followed the news from Israel over the past few months, then you’ve seen the massive demonstrations—hundreds of thousands of people—against the Likud-backed court reform bill that is making its way through the Knesset (Israeli parliament). The bill, according to the demonstrators, is a threat to democracy.
Reasonable people might disagree about the merits of the bill. But the claim that it puts the democratic character of the Jewish State in danger is one of the dumbest slogans in the politics of any country. The issue that the bill attempts to address is that the nation’s Supreme Court is out of control. In most democracies, there are separation of powers and checks and balances in their constitutions, which prevent any one branch of government from acquiring too much power at the expense of the others. But Israel does not have a constitution (more about that below), and the checks on its judiciary which did exist have been systematically dismantled over the past several decades. In other words, the high court has no accountability to the Knesset, and that’s what the reform sets out to fix. Whatever else you might think of the proposed reforms, the idea that limiting the powers of unelected judges, and shifting the balance to the elected representatives of the people, is somehow a threat to democracy is ridiculous. It is democracy.
This situation was made possible by a series of Supreme Court decisions in which the justices usurped ever growing authority for themselves. To give a taste of how that happened, here are…
4 Cases where Israel's Supreme Court Completely Overreached
1. Kahane vs. Speaker of the Knesset (1985)
Viewers of the TV show Homeland will be familiar with the name Meir Kahane. In the Season 6 opener, there’s a scene where a character makes a video about Kahane’s 1990 assassination in a New York hotel.
Born in Brooklyn in 1932, Rabbi Kahane was a founder of the Jewish Defense League (JDL). According to its website, quoted in an Anti-Defamation League backgrounder,1 the JDL’s objective is to fight antisemitism “through sacrifice and all necessary means -- even strength, force and violence.” The “all necessary means” turned out to be just as extreme as the quote suggests; the backgrounder includes a lengthy catalog of sit-ins, vandalism, brawls, bombings, and an alleged attempted hijacking.
In 1984, Kahane, now moved to Israel, was elected to the Knesset, where he promptly proposed bills to revoke the citizenship of Arab Israelis, segregate beaches, and prohibit Jews and Arabs from marrying or even having sex with each other. The Speaker of the Knesset, Shlomo Hillel, used his authority under the rules that existed at the time to prevent the bills from being introduced.
Kahane took the dispute to the Supreme Court, which ordered Hillel to allow the bills to proceed. Hillel refused, comparing the proposed measures to the infamous anti-Jewish Nuremburg Laws in Nazi Germany. The crisis was defused when the Knesset voted overwhelmingly to change its rules to explicitly prohibit consideration of bills that were racist or denied the Jewish character of the Israeli nation.234
Under the separation of powers in most constitutional governments, each branch sets its own procedural rules. But in the Kahane case, the judicial branch overstepped its bounds, overturned the rules of the another branch, and aligned itself with the forces of racism in the process.
It was not the first, and would not be the last time the high court got involved in a dispute over Knesset procedure.5
(Interesting historical sidebar: I met Meir Kahane once. He needed a shave.)
2. Ressler v. Minister of Defense (1986)
A key check on the power of the courts in most countries is the concept of standing: only people who have actually been harmed are permitted to file suit. The harm, in questions of standing, tends to be something tangible, focused, and specific to the plaintiff (“My neighbor carelessly burned rubbish and set my house on fire”). Not some general political complaint that might apply to anyone (“My taxes are too high”). The purpose of all of this is to require the courts to restrict themselves to providing redress to people who have been wronged. They should not rule on broad societal questions which are more properly handled by the political branches. Standing definitely drives some people crazy when they’re unable to effect social change through the courts—in the United States, for example, it presents a challenge to overturning President Biden’s completely unconstitutional student loan forgiveness. Nevertheless, it’s quite right that broad decisions should be made by elected officials in the legislative and executive branches, and not unelected judges. Standing, therefore is closely linked to the idea of justiciability—that certain matters are within the purview of the courts (justiciable), while others are not.
Yehuda Ressler, described by Mosaic as a “legal gadfly,”6 has waged a lifelong battle against Israel’s policy of exempting Yeshiva students from military service. A 1981 lawsuit was rejected by the courts on the grounds that Ressler wasn't sufficiently harmed to have standing. However, when he made a second attempt in 1986, the activist judge and future Supreme Court President, Aharon Barak was assigned to the case, and a very different outcome ensued.
The court decided that even though Ressler had no standing under the “classical rule,” which required “showing prejudice to his own interest,” there were “exceptions” “which have the effect of liberalising the rules.”
Wherever a petitioner can point to an issue of particular public importance or to a serious flaw in the functioning of a public authority, it would only be right for him to bring such a matter to the attention of the Court whose rule is to review the legality of the acts of public authorities. An even more liberal attitude would allow standing to a "public" petitioner in all cases.
Regarding justiciability, Justice Barak wrote,
The argument that, in view of the separation of powers an issue of a political nature must necessarily be determined by a political organ, and is therefore institutionally nonjusticiable, is an erroneous one. On the contrary, judicial review of government activity, even if it is of a political nature, ensures that separation of powers is safeguarded…Thus, the whole doctrine of institutional and (non) justiciability is highly problematical and is only applicable in special instances.7
In other words, the Supreme Court having unchecked powers safeguards the separation of powers.
In the end, the court sided against Ressler. It ruled the Ministry of Defense was within the law in granting military service waivers to Yeshiva students. But in hearing the case at all, the court virtually threw out the doctrines of standing and justiciability. Future Canadian justice minister Irwin Cotler commented in 1992 that Israel’s rules on both were the “broadest” of any democratic nation.8 From now on, nearly anybody would be able to challenge nearly any government policy they didn’t like in court, giving the Israeli judiciary a degree of power virtually unknown in democratic countries.
The elimination of standing and justiciability has far reaching implications. In the words of human rights lawyer Hillel Neuer, "There is hardly a single issue of national importance in Israel which does not quickly turn up in the Supreme Court."9 In subsequent years, the Israeli judiciary intruded on the legislature’s power of the purse by ordering both the national and municipal governments to expend sums to rocket-proof classrooms near Gaza, even though in the government's opinion the existing shelters were sufficient (2007), restore child care subsidies for Orthodox families (2022), and build a mikvah (2014).10 It has also interfered with the Cabinet's exercise of executive authority to conduct foreign policy and make war and peace. In a 1986 case it ordered the release of prisoners of war who the government had hoped to exchange for an Israeli airman, Ron Arad, who had been captured by a Lebanese militia. The harm done by the court in this case was grave indeed: Arad was never returned and his current whereabouts are unknown. The courts have even micromanaged combat operations in Gaza, "with the surreal result," according to veteran court watcher Evelyn Gordon, "that the very officers tasked with resolving such issues were instead spending their time writing affidavits or explaining the situation by phone to their lawyers in Jerusalem."11 Finally, the Supreme Court has embroiled itself in the appointments and dismissal of cabinet ministers, as illustrated by the next case.
3. Amitai: Citizens for Good Government and Integrity v. The Prime Minister of Israel (“Pinhasi Case,” 1993)
In the previous cases I discussed, Israel’s Supreme Court expanded its power at the expense of the Knesset and the Cabinet. In the Pinhasi case, and the simultaneous Aryeh Deri case, it extended its power into the Cabinet itself.
In 1993, Raphael Pinhasi and Aryeh Deri were Deputy Minister of Religious Affairs and Minister of the Interior respectively in the government of Labor Party Prime Minister Yitzhak Rabin. Like most Israeli governments in recent years, it was a fragile coalition. Pinhasi and Deri were members of the religious Shas Party, whose support Rabin desperately needed for the upcoming vote on ratification of the Oslo Peace Accords.
It was against this backdrop that the Attorney General, Yosef Harish, announced his intention to indict Pinhasi on charges of tax fraud and campaign finance violations, and Deri on charges of corruption.
In Rabin’s opinion, he was under no legal obligation to remove either Pinhasi or Deri from his Cabinet. At the time, they had not been convicted of anything, and the indictments had not even been filed. Harish disagreed. A public interest group, Amitai, or Citizens for Good Government and Integrity, sued (note how the elimination of standing was in play here).
Harish refused to perform the attorney general’s normal role of representing the government in court, and State Attorney Dorit Beinish took on the job of arguing the prime minister’s case.
The Supreme Court ruled in favor of Amitai and ordered the resignation of the two ministers. It is difficult to overstate the significance of this case. The court—on questionable legal grounds—had once again violated the separation of powers, and interfered with the political branch’s authority to select its personnel. It is just one of many such cases of meddling with ministerial appointments.12
Observe that the Israeli judiciary doesn’t tolerate this sort of interference when it comes to choosing its own members. Judges are selected by a Judicial Selection Committee; although the committee includes political appointees, existing justices and representatives of the Bar Association make up a safe majority.13
In any case, Pinhasi went far beyond tampering with cabinet appointments. Writing for the court, Justice Barak made this remarkable claim:
It is true that the attorney-general’s position was different from that of the prime minister. They tried to convince each other, but did not succeed. In this situation, the attorney-general must represent the prime minister before us according to the attorney-general’s legal viewpoint. The reason behind this approach is inherent in the view that the attorney-general is the authorized interpreter of the law for the executive branch.14
In other words, the attorney general’s legal opinions are now binding. And if the prime minister does not see eye-to-eye with the attorney general—a common enough occurence when even the most disinterested and conscientious people try to interpret complicated laws and precedents—the prime minister has no recourse to representation in court, since only the attorney general can represent him. For all practical purposes, the attorney general is now a judge, answerable to no one, from whose decrees there is no appeal.15
And yet, the mushrooming of court power in Pinhasi was minor compared to that in the next case.
4. United Mizrahi Bank v. Migdal Cooperative Village (1995)
The particulars of United Mizrahi Bank v. Migdal Cooperative Village are mind-numbing: an appeal of lower court rulings in three cases concerning jurisdiction over debt relief for farmers under a pair of laws the Knesset had passed in the wake of an economic crisis.16
But the significance of the case is not so much the particular question before the court as the sweeping reasoning the court used to answer it.
As I mentioned earlier, the State of Israel has no constitution. The country’s 1948 Declaration of Independence called for one to be written within a matter of months, but due to disagreements among the founders, this never happened. Instead, the Knesset passed series of “Basic Laws” as a stopgap until a formal constitution could be written and adopted. These laws deal with the powers of the Knesset, the status of Jerusalem, the authority to mint currency, and so on, the sort of thing that would normally be established in a constitution.
In what’s been called Israel’s Constitutional Revolution, the Supreme Court in Mizrahi declared that the Basic Laws are the constitution—trumping other laws—despite legislative history that made clear this was never the intent of the Knesset. Further, the court put itself in charge of determining what is and is not constitutional, and it interpreted the Basic Laws so broadly as to give itself the power to do virtually anything it wanted.
The broadest interpretation of all was the court’s view of the paragraph 1a of the Basic Law on Human Dignity and Liberty:
The purpose of this Basic Law is to protect human dignity and liberty, in order to embed the values of the State of Israel as a Jewish and democratic state, in a basic law.17
Any sensible parsing of this paragraph would conclude that it is a preamble, an introduction to the substantive paragraphs that follow, but of no substance itself. It does not command or prohibit anything or spell out any rights. In this respect, it’s similar to the General Welfare clause in the United States Constitution, which introduces the enumerated powers of Congress. And just as the US Supreme Court ruled that no, the clause is substantive after all and the US government may do anything it likes to provide for the general welfare, regardless of whether it is covered by the enumerated powers,18 so the Israeli Supreme Court ruled that anything that protects human dignity or embeds the values of the State of Israel as a Jewish and democratic state is a constitutional right, regardless of whether it’s one of the rights enumerated in the rest of the document.
This opens up a whole can of worms: what are “the values of the State of Israel as a Jewish and democratic state?” Are Jewish and democratic values even consistent with one another? If not, how does one resolve the conflict? Many countries besides Israel are democracies; should the courts look at the laws of other countries—foreign laws not passed by the Knesset—to determine what “democratic values” are? Indeed Mizrahi itself cites thirty-three foreign cases.
In practice, the court’s answer to all of these questions is that Jewish and democratic values are anything they want them to be. Aharon Barak admits as much. From the Hillel Neuer article:
As President Barak himself has written, there is a zone where “the decision is made according to the personal worldview of the judge…” and “his outlook on society, law, judging and life is what directs his path.”
Having arrogated to themselves the power to declare anything they felt like to be a “right,” the justices of Israel’s Supreme Court proceeded to use it. Time and again, they frustrated the will of the people, as expressed through their representatives in the Knesset. The court has gutted and overturned immigration laws,19 laws regulating who is eligible to run for office, and marriage laws. President Barak's explanation on this last subject is instructive:
I determined that the right to family life is a constitutional right of the Israeli spouse and his children. . . . Since we do not have specific articles in our Bill of Rights that deal with equality and the right to family life, I decided that these rights are part of the right to human dignity.20
In other words, he decided what he wanted the outcome to be and, not finding it in the actual law, he wrung it out of the vague phrase “human dignity.”
Retired Court President Shamgar wrote in Mizrahi, “The judiciary shoulders the burden of upholding the rule of law.” Indeed, the phrase “rule of law” appears in the decision twenty-three times. It is a concept that has roots in the constitution of my home state of Massachusetts. Yes, I realize that’s foreign legislation from Israel’s point of view. But since the Israeli judges claim to be the protectors of the rule of law, it is instructive to explore its history. Penned initially by John Adams, the Massachusetts charter is the world’s oldest written constitution still in operation. Here’s the relevant passage:
In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.21
In other words, rule of law means each branch of government stays in its lane. But as we’ve seen in the numerous examples in this post, Israel’s activist judges have done the opposite. They have usurped both the legislative and executive powers over and over again. The very definition of a government of men and not of laws. They found it necessary to destroy the rule of law in order to save it.
I leave it as an exercise for the reader to determine whether the reforms proposed by the Likud Party are what’s needed to address the Supreme Court abuses. There is definitely a case to be made that they go too far in shifting power in favor of the Knesset. And indeed, they are a moving target; as I write this, Likud is delaying some provisions and fast-tracking others in response to the opposition’s outrage. However, I hope I have convinced you that there really are abuses, and that they need to be addressed one way or another.
Michael Isenberg is the author of numerous amateur but talented legal opinions, as well as The Thread of Reason, a murder mystery set in the medieval Middle East. Check it out at http://amazon.com/dp/0985329750.
Bonus post for paid subscribers—Absurdities that Cannot Be: 2 More Cases where Israel’s Supreme Court Completely Overreached
“Backgrounder: The Jewish Defense League,” Anti-Defamation League, downloaded March 20, 2023, archived at https://web.archive.org/web/20100414090038/http://www.adl.org/extremism/jdl_chron.asp.
“Kahane can push law to ban Arab-Israeli sex, court says,” UPI, updated October 31, 1985, downloaded March 20, 2023, https://www.upi.com/Archives/1985/10/31/Kahane-can-push-law-to-ban-Arab-Israeli-sex-court-says/2890499582800/
“Knesset Votes Overwhelmingly to Bar Consideration of Racist Bills,” Jewish Telegraphic Agency, updated November 14, 1985, downloaded March 20, 2023, https://www.jta.org/archive/knesset-votes-overwhelmingly-to-bar-considera-tion-of-racist-bills.
Evelyn Gordon, “Disorder in the Court: How Israel’s supreme court has effected its own constitutional revolution—and thereby undermined public confidence in the rule of law,” Mosaic, updated December 5, 2016, downloaded March 20, 2023, https://mosaicmagazine.com/essay/israel-zionism/2016/12/disorder-in-the-court/.
See, e.g. “M.K. Sarid v. Chairman of the Knesset,” Versa: Opinions of the Supreme Court of Israel, downloaded March 22, 2023, https://versa.cardozo.yu.edu/opinions/mk-sarid-v-chairman-knesset.
Moshe Koppel, “Israel's Imperious Judiciary: A madly intrusive justice system is one of the most potent threats the country faces. Can it be stopped?,” Mosaic, updated December 4, 2014, downloaded March 20, 2023, https://mosaicmagazine.com/observation/uncategorized/2014/12/israels-imperious-judiciary/.
“Ressler v. Minister of Defence,” Versa: Opinions of the Supreme Court of Israel, downloaded March 20, 2023, https://versa.cardozo.yu.edu/opinions/ressler-v-minister-defence.
Hillel Neuer, “Aharon Barak’s Revolution,” AzureOnline, Winter 1998, downloaded March 16, 2023, https://azure.org.il/article.php?id=395.
Ibid.
Jeremy Sharon, “From a rogue MK to Haredi subsidies, 8 times High Court struck down laws, decisions,” The Times of Israel, updated January 30, 2023, downloaded March 20, 2023, https://www.timesofisrael.com/from-a-rogue-mk-to-haredi-subsidies-8-times-high-court-struck-down-laws-decisions/.
Gordon (2016), op cit.
These include Eisenberg v. Minister of Housing (1993), Suissa v. Attorney-General (1993), the case of Eli Zohar who was prohibited from becoming attorney general (2003), and a 2011 case where Finance Minister Yuval Steinitz was denied his choice for head of the tax department.
Evelyn Gordon, “Israel's Judicial Reckoning,” Mosaic, updated March 6, 2023, downloaded March 16, 2023, https://mosaicmagazine.com/essay/israel-zionism/2023/03/israels-judicial-reckoning/.
Amitai: Citizens for Good Government and Integrity v. The Prime Minister of Israel (HCJ 4243/93, 4287/93 and 4634/93), in Decisions of the Israel Supreme Court, vol. 47, section 5, p. 473.
Evelyn Gordon, “How the Government’s Attorney Became Its General,” AzureOnline, Summer 5758 / 1998, no. 4, downloaded March 20, 2023, https://azure.org.il/article.php.
“United Mizrahi Bank v. Migdal Cooperative Village,” Versa: Opinions of the Supreme Court of Israel, downloaded March 20, 2023, https://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooperative-village.
“Basic Law: Human Dignity and Liberty,” downloaded March 21, 2023, https://m.knesset.gov.il/EN/activity/Documents/BasicLawsPDF/BasicLawLiberty.pdf.
See US vs. Butler and Helvering vs. Davis. Although these cases were decided in the 1930s, the debate over whether the General Welfare clause was substantive goes back to the founding of the republic. Alexander Hamilton claimed it was but James Madison thought the idea was ridiculous. He argued that if the federal government was intended to have the power to do anything it wanted to promote the general welfare, then the Constitutional Convention wouldn’t have spent all the time it did coming up with the list of enumerated powers.
Gordon (2016), op cit.
Ibid.
Constitution of the Commonwealth of Massachusetts, Part the First, Article xxx, downloaded March 21, 2023, https://malegislature.gov/Laws/Constitution.