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Israel's Illiberal Judiciary

Israel’s public discourse has been especially turbulent of late, so much so that its shockwaves have reached overseas. November’s election brought a right-wing coalition into power, and the resulting conservative policies that it proposes have all been hysterically described by Israeli and international progressives as nothing less than a mortal threat to the nation’s democratic foundations. This absolutist narrative, free of nuance or compromise, suggests that Israel’s progressives have adopted the storytelling tactics of America’s “Trumpian” hard right.

This is not just an Israeli phenomenon; it is an international phenomenon that just occurred in Brazil. These incidents reveal deep tensions between populism and elitism. It turns out, however, that it doesn’t matter much which one loses power; the Israeli case proves that elites are also willing to sacrifice democracy.

Israel, somewhat like the United States, has a small elite that has disproportionately controlled the judicial system from a minority position for years. Its sociological and historical roots make the Israeli left feel it deserves this influence, and thus it does not hesitate to flirt with illiberal ideas. As former IDF deputy chief of staff and senior left Knesset member Yair Golan stated: “I know that the people chose, but it was a mistake.”

Like some of the more fanatical Trump supporters, a share of the Israeli Left sees its political competitors not merely as political rivals, but rather as evil enemies. Key leaders from the Israeli Left identify themselves as the only protectors of freedom and democracy, and the natural corollary is that their political opponents must therefore oppose these values. Also, the Israeli Left, led by Yair Lapid, has declared that it is unwilling to accept the results of the Israeli elections.

Another similarity between the Israeli Left and the Trumpian Right can be seen in the recent demonstrations held to protest the Israeli government. Emotionally, the Left’s hysteria and cries of division mirror the storming of the Capitol. This is a deep expression of the unwillingness to accept the results of the political game. Instead of respecting the election results, they criticize the legitimacy of the results. In Israel, they claim they are fighting “the tyranny of the majority,” but they seek to create a “tyranny of the minority”—their own.

Since the Israeli court stopped dealing solely with law and expanded its reach to deciding policy, it has dramatically damaged the separation of powers and disrupted Israeli society.

The Lapid camp in Israel must be understood in this context. Following Menachem Begin’s 1977 electoral victory, the Israeli Left began to shift decision-making power from elected political representatives to unelected and politically unaccountable bureaucratic positions, more reliably under Left-wing control. The process was accelerated in 1992 and beyond through what is known as Aharon Barak’s “Constitutional Revolution,” a multi-decade process in which the Israeli judiciary radically expanded its powers at the expense of the Knesset and the executive.

In all western countries, judges either appoint themselves, accepting that they then cannot invalidate laws, or else are elected by another authority, in which case they then may invalidate laws. In Israel, however, we have found ourselves in a strange situation in recent decades. Judges appoint themselves but can still revoke legislation.

Judges have veto power in the committee for appointing judges, so all appointments are under their control. The Israeli judiciary actually chooses its own judges. With the 1992 constitutional revolution, judges ruled without authority that they had the right to invalidate laws (including basic laws) because they were unconstitutional. The absurdity is that Israel doesn’t have a constitution, and the legislator never granted the judicial system the power to invalidate laws. Consider an analogous hypothetical: What if American judges could appoint themselves, overturn the legislation of the Congress and the Senate, and discuss the unilateral repeal of articles of the Constitution?

As Judge Richard Posner and Professor Richard Epstein noted, Israel’s legal system has crafted an absurd imbalance of power that does not exist in any other democracy. Since the Constitutional Revolution, Israel’s judges have frequently intervened in politics, relying on abstract principles such as proportionality and reasonableness to upend everything from security and social policies to coalition negotiations. This judicial activism is unparalleled in the world, and it has fostered an unprecedented mistrust of the Israeli legal system by our citizenry.

None other than the President of the Fifth Supreme Court, Judge Moshe Landau, warned of the consequences of Barak’s judicial coup: “Plato in his Book of State suggested giving the government of the country to a stratum of sages who received a special education for this purpose. Sometimes it seems to me that most of the judges in the Supreme Court put themselves in roughly such a state of the rule of the sages,” he wrote. Further, “such a government of judges in matters of political color cannot exist for many days, because it will end up encountering opposition from both the legislative and executive branches.”

The Lapid’s desire to impose the will of a small, secular, progressive minority on the majority was often actualized through the wildly activist judicial system. But this road is about to be blocked.

Indeed, since the Israeli court stopped dealing solely with law and expanded its reach to deciding policy, it has dramatically damaged the separation of powers and disrupted Israeli society. As an example, the High Court destroyed Israel’s immigration policy. Three times the Knesset tried to deal efficiently with tens of thousands of illegal infiltrators, and three times that the High Court trampled on the will of the legislators to establish an immigration policy.

The new government seeks to restore checks and balances, correct the separation of powers, and return the legal system to its proper sphere, comparable to most democracies in the world. The proposed reforms have been discussed and supported by public figures and secular intellectuals for many years, especially those from Israel’s old Left. These include the late Ruth Gavison, founder of the Association for Civil Rights; Daniel Friedmann, Minister of Justice under former Prime Minister Olmert; and Minister Haim Ramon, a protégé of the Labor Party who served as deputy head of the Olmert government.

This context is required to understand the political hysteria heard from the increasingly Trumpian Lapid camp. Its desire to impose the will of a small, secular, progressive minority on the majority was often actualized through the wildly activist judicial system. But this road is about to be blocked. Having lost the election, and facing the prospect of a weakened hold on Israel’s judiciary, the only alternative for this camp is to turn outside of Israel, to challenge the legitimacy of Israel’s democratically elected regime.

In a democracy, the parties agree in advance to disagree on specific policy outcomes, but they agree on the rules of the game and try to maximize their achievements within that consensus-based civil-national framework. Changes of government do not constitute a change of regimes, and therefore changes of government are peaceful. But the hard right in the US and the Lapid camp in Israel diverge from the foundational political principles of consent and legitimacy. From attacking the Congress in the USA and Brazil, to blocking roads and strikes in Israel, they make clear that to them, politics is largely a challenge of winners. Through threats of soft violence, and the willingness to break rules, they terrorize the process of democratic decision-making.

We are witnessing a crisis because non-elected elements are losing their influence and fighting to preserve it. Influence and power are at the heart of the debate. The elite doesn’t like it when representatives they don’t like win elections, such that suddenly populism wins. Populism is, of course, a curse. Essentially, we see how judicial systems foster illiberal currents. It is only after the politics of power change that the once-powerful majority suddenly becomes a minority, and must convince the public of the wisdom of their ideas. And who wants to make an effort to do that?


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