Israel’s Right-Wing Puts the Independent Judiciary in Crisis


Solomon D. Stevens


There are those who have always condemned Israel and denied its right to exist. I am not one of those people. I am a proud Jew and a supporter of Israel. Throughout my life, I have defended Israel against its enemies, opposing the boycott, divestment and sanctions movement and other movements designed to harm or delegitimize Israel. So it is with a heavy heart that I say that Israel is on the verge of making decisions that will change its path for the future. It is about to embrace structural changes that will compromise what I always thought was its commitment to democracy. Jews everywhere must speak out.

The most important and troublesome of the proposed changes is the move to redesign the judiciary. The so-called “override” provision would allow, for the first time in Israeli history, a bare majority of the legislature to overturn decisions of the High Court of Justice should it rule one of its laws in violation of the Basic Laws. The proposal would also effectively give the ruling coalition the power to appoint judges of the High Court. While it is perfectly reasonable for Israel to pursue some form of judicial reform, these changes would essentially destroy the existence of an independent judiciary.

The American political system is defined by a written constitution that includes separation of powers, checks and balances and a strong executive with independent powers. Israel has none of these things. Israel’s president is elected by the legislature (Knesset). In the United States, the president nominates Supreme Court justices, and while Congress can approve or disapprove candidates, it cannot itself suggest candidates. And Congress cannot by legislation overturn any provision of the Constitution.

However, the United States has not been immune to the push from extreme groups to try to control the judiciary. The nomination process for Supreme Court justices has become highly politicized, and extreme groups often try to “pack the court” with allies. But once justices are actually on the court, they are beyond formal political control. While it is true that the court does respond in informal ways to politics, its role in judicial review of legislation has — so far — remained strong.

But we in the United States should not be smug. There are many here who would like to weaken judicial independence. It is an issue for all democracies, one which demands everyone’s attention and vigilance. Courts everywhere can make mistakes or even fall under the sway of bias. But democracy depends on an independent judiciary. It is the necessary but not sufficient precondition for the imperfect justice that can be achieved in any democracy.

Since Israel’s political landscape is always so splintered, and since forming a government often involves making deals with extreme political parties, the ruling coalition is under pressure to placate them. We have seen a version of this recently in the United States, with Kevin McCarthy making concessions to right-wing Republicans to become speaker of the house. But this has not given Congress any additional power over the judiciary. If Israel gives the ruling coalition the power to set aside the High Court’s decisions, it would be a disaster, making civil liberties subject to the whim of whatever extreme parties have maneuvered their way into the coalition.

As Amir Fuchs writes for The Israel Democracy Institute: “In Israel, the Supreme Court is the only restraint on the power of the political majority.” And as we all know, democracy is more than simple majority rule; majorities can be oppressive and even tyrannical. Democracy exists to give expression to a majority while, at the same time, protecting the rights of the minority. This is what we now see threatened in Israel.

Right-wing groups have been gaining power in the United States and in many democracies around the world in the last few years. It is frightening to see this anywhere, but it is heartbreaking to see this in Israel, because it has always been for Jews everywhere a spiritual and emotional symbol of hope. As Daniel Gordis said in “Saving Israel,” “That is what the State of Israel has represented to Jews ever since its creation. It was hope that Israel restored to the Jews; and it is hope that would be utterly lost if Israel ever succumbed.”

If Israel eliminates its independent judiciary, civil liberties there will be threatened. In addition, it will open itself up to a new level of criticism and vilification from its enemies. It will significantly complicate its relations with neighbors. And it will alienate itself from much of the Diaspora. Israel is a sovereign nation, and it doesn’t ever need to govern itself just to please others. But Israel is in crisis now, because it is on the verge of betraying its own promise: to be a symbol of hope and a light to the nations. This is something Israel must not allow to happen.

Solomon D. Stevens has a Ph.D. in political science from Boston College and is the author of the book, “Challenges to Peace in the Middle East.”

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