The new Israeli government’s judicial reforms are not anti-democratic

The new right-wing Israeli government led by Prime Minister Benjamin Netanyahu has introduced reform proposals that, if implemented, would largely destroy judicial review and centralize more power in the hands of ruling politicians. Critics denounced the reforms as anti-democratic. For example, Harun Barak, the famous former chief justice of the Israeli Supreme Court, warned that the government’s plan would “strangle democracy.” In practice, this plan would actually improve democracy in the sense of increasing the power of the elected representatives of the political majority. The real danger this poses is not too little democracy, but too much – thereby setting the stage for a dangerous tyranny of the majority. According to Attorney General Gali Baharov-Miara (another opponent of the proposal), this reform law would “give . [the] Unbridled power of government.”

As Brookings Institution scholar Benjamin Wittes – a critic of the government’s plan – explained, the plan includes 1) an “override” system under which the Knesset (Israel’s parliament) can easily override judicial decisions by majority vote, 2) judicial selection almost entirely under the control of the current government. , where previously it was largely controlled by judges, 3) eliminated the “reasonableness” standard of judicial review of government action, making little judicial review much more deference, and 4) neutralizing much of the power of the Attorney General (who is traditionally independent of the current government). .

The net effect of these proposals will be to empower the government of the day to do as it pleases with little or no interference from the judiciary or anyone else. As Witts emphasized, Israel does not have the kind of federalism or separation of powers that exists in the United States and many other democracies. Absent meaningful judicial review, government power will be concentrated almost entirely in the hands of the 61 seats it can hold in the 120-seat Knesset.

If you want to empower the democratic majority, that system is hard to beat! The majority will be able to do what they want.

But if you want to defend the rights of minorities against an overbearing majority, it’s deeply problematic. This is a particular danger in a highly diverse and deeply divided society like Israel. Netanyahu’s new coalition includes theocratic and ultra-nationalist parties that seek to oppress the country’s large Arab minority and, in some ways, the more secular Jews. Itamar Ben-Gavir, the new government’s security minister, has a long history of anti-Arab bigotry. Some of the other members of the new coalition government are even worse.

Over the past thirty or so years, the Israeli Supreme Court has issued numerous decisions protecting the rights of ethnic and religious minorities, as well as civil liberties and property rights, in what would otherwise be an overwhelming majority system. But because Israel has no written constitution, the court’s powers have always been somewhat unusual. The court’s authority is based on a series of basic laws enacted by the Knesset which, over time, have come to be seen as elevated above common law and amendable only by special new laws. In principle, however, the system can always be overturned by new laws enacted by a bare majority. And the new Israeli government appears to want to break the political norms that have until now blocked such action.

In addition to threatening minorities, the new government tried to neutralize the judiciary and the attorney general in order to protect criminality in its own ranks. Netanyahu himself is accused of corruption, and the weakness of the courts and the attorney general may help him avoid conviction. Shas Party leader Aryeh Deri, the new government’s proposed interior minister and health minister, has been blocked by the Supreme Court from taking those posts because of a conviction for tax crimes, stemming from a plea deal in which he apparently promised to stay out. of public office. If the court becomes inactive, Derry will likely be able to take these positions unhindered.

Oppressing minorities and empowering corrupt politicians is bad, but not necessarily anti-democratic. Indeed, protecting the minority and limiting the influence of the corrupt are classic arguments for limiting the power of democratic majorities.

The new government’s judicial reforms could have an anti-democratic effect if they facilitate laws that hinder political participation, for example by limiting freedom of speech and the opposition’s freedom of association. This is definitely a potential hazard. But so far the alliance has not given any such agenda.

Legal theorists have long recognized that judicial review—while in many ways a constraint on democracy—can also help protect democracy when it prevents governments from suppressing opposition or rigging electoral systems in favor of incumbents. In the short to medium term, however, the main threat to Israeli reform is the tyranny of the majority—not the destruction of democracy.

In recent political discourse, there is a growing tendency to use “anti-democratic” as a synonym for “bad” and “democracy” as a synonym for “good”. In that sense, the Israeli reforms may be anti-democratic after all. But for reasons, I’ve summarized here, this usage hinders rather than benefits analysis:

The conflation of “democratic” with what is right and just has many unfortunate consequences. First, it promotes intellectual confusion. Second, and more importantly, it essentially defines the possibility that democracy—understood, more reasonably, as a majoritarian political process—should be limited in order to protect other values ​​and counter the various predictable pathologies of democratic government, such as mass voter ignorance. and oppression of minority groups.

There is often a trade-off between democracy and other values ​​such as freedom, equality and justice. Terminological confusion should not blind us to that reality.

This point applies to Israel as well as the United States.

Although I oppose the new government’s reforms, I think the situation highlights the uncertainty of Israeli judicial review and the danger of relying too much on it as a protector of civil liberties and minority rights. Israelis who wish to preserve liberal values ​​would do well to promote other institutional constraints on the power of the Knesset majority, such as federalism and separation of powers. Federalism, in particular, is an option that could work well for Israel, a nation with a range of different communities with different cultures and local majorities. Under federalism, the country’s relatively small size (resulting in lower running costs) can empower people dissatisfied with local conditions to “vote with their feet”. Foot voting itself is a powerful method of political choice and an additional safeguard for minorities.

Federalism is far from the tyranny of the majority. But not judicial review. In either case, much also depends on how the system in question is structured. Ideally, government power should be limited by a variety of interlocking institutional constraints, not by putting all our eggs in one basket, such as a court system whose power rests on weak foundations. Israel’s current situation highlights the risks of the latter strategy. But the problem of limiting majoritarian abuses faces almost all democracies.