One of the great conflicts in politics is between process and content. One can vigorously argue in favor of democracy, transparency, and accountability, but sometimes the result is not desired. In other words, there is a difference between advocating for your values and advocating for the outcome you want. Both Israel and America, to different extents and with different alignments, are currently struggling with this conflict.
In America, liberals are frustrated by what they see as an activist Supreme Court willing to overturn a constitutional right that has been legal precedent for 50 years. At the same time, the conservative court is increasing willing to intervene in executive branch policies not because they violate the law, but because the court believes the policies to be of such importance that a higher bar is necessary for them to stand.
Conservatives argue that the current court is merely restoring the legal principles in place before the legal revolution introduced by the liberal Warren and Burger courts of the 1960s and 1970s. Those courts, conservatives argue, found rights that didn’t exist in the constitution which allowed justices to become “super legislators”. The current judicial activism, therefore, is only a means to put a check on earlier overreach.
In Israel, it is the conservatives who are frustrated by what they see as an activist Supreme Court that has adopted for itself much greater power than was ever given to it by the Knesset, Israel’s parliament. Israel does not have a constitution, and for the first 40 years of its existence, the court did not have the power of judicial review; it did not declare legislation illegal. The status quo changed in 1992 with the beginning of Israel’s own legal revolution.
Since the 1990s, Israel’s Supreme Court has overturned laws and increasingly blocked government policies it deems unreasonable. Conservatives argue that judges have become “super legislators”. Liberals argue that this kind of judicial activism is sometimes necessary to preserve democracy. Minorities need legal protection against the tyranny of the majority.
Israeli conservatives have produced a package of legal reform designed to roll back the judicial revolution of the 1990s, arguing that the country cannot be a true democracy unless the duly elected government is free to implement the policies voters sent them in office to accomplish. Liberals argue that the country cannot be a true democracy unless there is an independent judiciary that can serve as a check on the government.
The result in Israel is political chaos as protests and strife threaten to tear the nation apart. In America the tension is not as visible, but certainly brewing under the surface. Amidst all the noise, it’s important to try and separate process from outcome. If we have any principles at all, we should strive for a system that ensures democracy and fairness, not just the result we want.
A very helpful article by Evelyn Gordon lays out the reasonable case for legal reform in Israel. She makes the argument that the court has overreached in its oversight of the government and that no one argued Israel was not a democracy before 1992 when the court did not have the power to strike down legislation. The conservatives in Israel truly feel that the court has overstepped its bounds and does not share their values. There could and should be more conservative voices on the court.
Neil Rogachevsky responds to Gordon not on the substance of her argument but on the troubling politics of the situation. While reform may be necessary, he argues, the timing has to do with the nature of Israel’s governing coalition. In the past, Prime Minister Binyamin Netanyahu had parties in his government to the left who could veto any judicial changes. He doesn’t have a partner like that now and is instead beholden to rightwing parties looking for maximum change while they have this golden opportunity.
What both Israel and America need are reforms that will restore faith in the justice system, and to do that we need bipartisan compromise not based on the outcomes we want but on the values we hold dear. Courts should not involve themselves in policy decisions unless they violate individual rights. At the same time, an independent judiciary is a bedrock of democracy.
To accomplish the goal of a principles-based system, you need to work with your opponents, which is exactly what Israeli President Isaac Herzog proposed. Like any compromise, its likely to satisfy and disappoint everyone. Unfortunately, the government coalition has rejected Herzog’s plan outright. Hopefully, this is only an opening position, and they will come to the table. The current crisis could be an opportunity to build a stable political future for Israel providing decades of stability, as long as the players are willing to place values over outcome.