Newsweek.
Now that demonstrations against the current Israeli government have inspired demonstrations in support of the government, there appears to be some confusion about what is and what is not at stake in this debate. The ostensible issue that triggered the anti-government demonstrations is the government’s plans for judicial reform.
Professor Alan Dershowitz describes Israel as “the most vibrant democracy in the world today.” And even though he has been skeptical of some of the government’s proposals for judicial reform, he writes that even if all the reforms are put in place, “Israel will remain a vibrant democracy.”
Anti-judicial reform protesters in the tens of thousands have been demonstrating at least once a week for nearly three months. The pro-reform demonstrations began only two weeks ago. Both groups march carrying Israeli flags. Most of the protesters on both sides seem to be enjoying a festive, protest atmosphere; they don’t shy away from causing traffic jams and road closures, and generally causing a huge amount of noise. They are emblematic of democracy in action.
With the Passover holiday impending and the long school holiday that goes with it, Prime Minister Benjamin Netanyahu called for a legislative pause last week on the reforms. This pause period would be a good time to reflect on what is actually at stake—and why the government has proposed reforms to the status quo. The reasons may surprise you. Evelyn Gordon has a helpful, thorough summary in Mosaic Magazine. The relevant points are as follows.
Israel is the only democratic country where judges have veto power over the appointment of their own successors.
It is the only democracy in which legal advisers to the government—who are themselves appointed by judges—are vested with authority to determine the legality of the government’s legislative actions, and possibly to put a complete stop to them.
It is the only democracy where a plaintiff need not demonstrate judicial “standing” in order to contest the legality of an action in court.
It is the only democratic country where judges issue rulings that entail no actual legal issues; that is, they can rule that a purely political or economic matter seems “unreasonable,” and thus should be disallowed.
It is the only democracy where the highest court can even strike down a constitutional provision—or at least, the closest thing it has to constitutional provisions. (Israel has Basic Laws that collectively function as a “quasi-constitution.”)
JACK GUEZ/AFP VIA GETTY IMAGES
These unusual features were inserted into Israel’s judiciary during the long chief justiceship of Aharon Barak. He set out to remake the judiciary with what he himself called a “constitutional revolution.” It was a “revolution” that allowed the other branches of government to be ruled and overruled by an unelected and self-appointed judiciary. Over time, all of the aforementioned unique aspects of the Israeli Supreme Court were established.
In the U.S., by contrast, the president nominates and the Senate confirms Supreme Court justices. The Court does not involve itself at all in the political proceedings. As a result, the Court is made up of an ideological mix of justices because majorities change hands in U.S. elected government. But Aharon Barak’s “constitutional revolution,” under which the Court selects like-minded successors and like-minded government legal advisers (who themselves can bind the duly elected legislature), features no ideological mix. The Israeli Supreme Court is completely one-sided—in this case, favoring the Left. Furthermore, members of the current opposition, including head of the opposition MK Yair Lapid, have argued as recently as last year for many of the very reforms they now protest.
Obviously, in a democracy citizens vote for their leaders—or in the case of Israel, for a political party—and the judiciary is also vital, as it must rule on cases in accordance with the law. The current separation of powers in Israel simply does not conform to that of other democracies, in which the judiciary is limited to ruling on disputed legal issues.
However, it is not at all clear that the protests against the current government are actually about judicial reform. The new government won the most recent election decisively—or at least decisively for a country whose previous four elections had so narrow a winning margin that the elected governments were toppled and new elections were quickly needed. But this time, Netanyahu had little trouble forming a coalition. With Israel’s hand-counted, carefully monitored election practices, election results are not doubted. And it is likely that the opposition would have protested whichever major policies the Netanyahu government proposed.
We might even say that the protests are really about the elections themselves. The anti-judicial reform protesters really do want the judiciary to retain all of its unusual powers, so that it can block this government’s programs—even if, when these same Knesset legislators are in the majority, they may well agree that the judiciary needs reform. They are protesting, in short, because they lost the election.
The other side finds it now needs to counter-protest to remind everyone that they are the majority that won the election. How this all ultimately ends is anyone’s guess.
Originally published in Newsweek.