Ottomans and Zionists

The U.S. is not the only place where there is currently a dispute between the government and the courts over the proper scope of judicial review. Israeli Justice Minister Yaakov Neeman has proposed a bill allowing the Knesset to reintroduce and pass laws that have been invalidated by the High Court with a majority of 65 MKs (the Knesset has 120 members, so this more than a simple majority but far from a supermajority). According to the bill, during the first period following its passage, only a regular majority of 61 would be required to overrule the High Court, and the duration of the “first period” is not defined which means that the higher number of 65 might potentially not ever kick in.

The philosophy behind such a bill might seem problematic at first glance, but the notion that the High Court should have the absolute final say is not an ironclad rule of democratic governance. As of now, there is no mechanism to annul an Israeli High Court decision, which gives an unelected body an enormous degree of power and upsets the principle of checks and balances. In the U.S., for instance, a Supreme Court ruling on the unconstitutionality of a law can be undone through a constitutional amendment which then puts the law beyond the scope of the Court’s authority. This means that the judiciary is able to check legislative excesses that violate the Constitution, but a mechanism remains to make a popular measure constitutional if it can clear the extremely high bar of passing by a vote of 2/3 in both the House and Senate and being ratified by 38 out of 50 states. In Israel, however, there is no written constitution and therefore such a process is unavailable. In Britain, the Supreme Court only has limited judicial review and cannot overturn many forms of parliamentary legislation, which is essentially the opposite of the current state of checks and balances in Israel. The proposed Justice Ministry measure is an effort to move Israel away from the extreme pole of judicial supremacy that it currently occupies and closer to the U.S. model of having a legislative override.

Of course, the glaring problem with this comparison to the U.S. is that the specifics of the bill do not create a presumption of a final say for the High Court since the standard for override is barely higher than what is required to pass a bill in the first place, and due to the ambiguity of the proposal may not be higher at all. The principle behind this proposal is a good one given that the balance of power is currently tipped entirely away from the legislature and toward the judiciary, but the devil is in the details, which in this case arise due to the nature of the Netanyahu coalition. The High Court has recently weighed in on some high profile issues – the Tal Law, the Migron evacuation, etc. – which puts pressure on Netanyahu and Likud to do something to mollify both the ultra-Orthodox and settler coalition partners, and this seems to be their best bet. It will also be popular with right wingers who abhor the High Court in general and want to put it in its place. In many ways the specifics of the proposal make it clear that this is less about creating a democratic balance between two branches of government and more about punishing the High Court for its recent decisions.

The other important point to note here is that Ehud Barak has come out strongly against the proposal, adding further strain to the relationship between him and Netanyahu that is already in the news over their clashing statements on Israel’s position toward the P5+1 nuclear talks with Iran. As I noted last week, events are coming to a head in the Netanyahu-Barak partnership that call into question how much longer it can survive, and the High Court proposal is just the latest wedge that is creating a fissure between the prime minister and the defense minister.