Using a straw man to attack Supreme Court reforms

Likud’s proposed bills wouldn’t harm judicial independence, only the court’s excess powers

Prime Minister Benjamin Netanyahu has said his new government aspires to enact legislation to restrain the Supreme Court. But this weekend, his spokesman said Netanyahu “consistently championed the independence of Israel’s judiciary” for three terms and will “do so vigorously during his fourth term as well.”

So one of those two statements is clearly a lie – at least according to former Supreme Court President Aharon Barak, current Supreme Court President Miriam Naor, Attorney General Yehuda Weinstein and President Reuven Rivlin, all of whom last week assailed the Likud party’s proposals as undermining the court’s independence and even democracy itself.

Yet in reality, both of Netanyahu’s statements are true. The only lie is his critics’ claim that the bills would undermine either judicial independence or democracy.

The first bill would alter the way Supreme Court justices are chosen. Currently, Israel’s system is unique in the Western world. Justices are chosen by a nine-member committee on which the legal establishment, rather than elected officials, constitutes the majority. It consists of two ministers, two MKs, two Bar Association representatives and three sitting justices.

Moreover, sitting justices have veto power over the choice of their successors. Supreme Court appointments need at least seven votes, so anyone the three sitting justices oppose has no chance.

No other Western democracy gives sitting justices any role in choosing their own successors, much less veto power. Indeed, most entrust Supreme Court appointments solely to the people’s elected representatives. In America, the president appoints justices and the Senate confirms them; in Germany, parliament’s upper and lower houses each select half the justices; in France, the president appoints nine of 15 justices while the head of each parliamentary house appoints three; in Switzerland, parliament selects the justices; in Sweden, the cabinet does; in Australia, Canada, Belgium and Norway, justices are appointed by the monarch but either nominated or approved by the cabinet.

Yet nobody accuses those countries of being undemocratic, or their courts of lacking independence. And for good reason: Once chosen, justices serve for life or until mandatory retirement; they can neither be dismissed nor reappointed. Hence they’re free to rule as they see fit without fear of consequences.

In Israel, justices similarly serve until age 70 and can’t be dismissed, making them completely independent. And the proposed reform wouldn’t change this.

What it would do is reduce the justices’ power to choose their own successors, by boosting the appointment committee to 11 members, with six politicians instead of four. The legal establishment would retain five seats, so it would still have more influence over Supreme Court appointments than other democracies allow. But politicians would constitute a narrow majority of the panel rather than a minority, and the justices would lose their veto, since seven votes would be obtainable without them.

This would not only bring Israel’s system more into line with Western norms, but would also reduce the court’s stultifying lack of ideological diversity. Currently, because justices essentially select their own successors, candidates who don’t share the majority’s views are rarely appointed. This has generated growing distrust of the court among Israelis who don’t share its dominant worldview: Only 56 percent of Israeli Jews voiced confidence in the court in 2013, down from 80% in 2000. And since few things are more corrosive to democracy than lack of trust in the judicial system, increasing the court’s ideological diversity would actually bolster democracy.

The second bill would let the Knesset override Supreme Court rulings declaring laws unconstitutional – something Canada also permits. This wouldn’t reduce the court’s independence to rule as it pleases, but clearly would reduce its power to impose its views on parliament. I’ve explained in a previous column why, given Israel’s unique constitutional situation, this isn’t anti-democratic, although I’m not convinced it’s good policy.

But the bill would also bar the court from overturning laws to begin with unless at least nine justices – a mere 60% of the court’s complement of 15 – deem the law unconstitutional. And that’s excellent policy.

Today, laws can be overturned by one-vote majorities of three-member benches. But if the court itself is almost evenly split over a law’s constitutionality, there’s clearly more than one plausible legal interpretation. And if there’s more than one plausible interpretation, it makes sense to prefer the one chosen by the Knesset, the body that actually wrote the Basic Laws that the court (wrongly) treats as Israel’s constitution. When serious doubt exists about the “correct” interpretation – which it clearly does if less than 60% of the court concurs – the lawmaker should get the benefit of this doubt.

Clearly, these two reforms dovetail: If the revised judicial appointment system creates greater ideological diversity on the court, it would be harder to muster nine justices to overturn legislation. And that’s precisely as it should be: In a democracy, where the people are supposedly sovereign, unelected justices should overturn decisions by the people’s elected representatives only in exceptional cases.

This brings us back to the straw man of the court’s independence. Judicial independence is indisputably essential; a country where courts merely obey government dictates is a dictatorship, not a democracy. Hence by claiming that Netanyahu’s proposals would undermine judicial independence, his critics seek to tar them as something no democracy could countenance.

But what these critics are really trying to protect isn’t the court’s independence, but its excessive power – a power without parallel in any other democracy, in which justices first choose their own successors to create an ideologically-uniform court, then seek to impose this ideology on the country by asserting a right to overturn government decisions and/or legislation on virtually every important policy issue: immigration and citizenship (for instance, whether Israel can deny entry to enemy nationals), budgetary priorities (such as whether welfare payments can be cut), family matters (from recognizing gay couples to criminalizing spanking), and military tactics during wartime (i.e. targeted killings of terrorists). In short, what Israel has now in many respects isn’t democracy, but rule by unelected justices.

All the proposed reforms would do is return a tiny fraction of this power to the people’s elected representatives. And Israel’s democracy would be the greatest beneficiary.

Originally published in The Jerusalem Post on May 5, 2015