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No. 72: When Supreme Courts are Awesome. Sort of.

 Member Newsletter
March 29, 2023 5:00 p.m.

Today I return to the Israeli political crisis, but move on from general observations to the specifics of the issue. Just how does the Israeli Supreme Court function and why have efforts to limit its power spurred such a national crisis?

Among other things it’s an example of how we can’t evaluate or understand political institutions outside their particular political and national context.

When Supreme Courts are Actually Awesome. Sort of.

Originally Published: March 29, 2023 4:15 p.m.

We’ve already discussed some of the broader issues involved in the ongoing Israeli political crisis. I wanted to expand on one of the more specific ones: precisely what the judicial “reform” package is about and why there’s such resistance to it.

Decades ago, American Democrats and liberals loved the U.S. Supreme Court. That love affair waned over many years before collapsing during the Trump presidency. So from an American context, it can seem a bit odd to Democrats to see Israelis making a big stand on behalf of the Israeli Supreme Court. What’s more, from an American perspective, how the Israeli Supreme Court functions and how its members are chosen can seem pretty weird.

The Israeli Supreme Court is partly a self-perpetuating creature of the judiciary and the legal profession. A board made up of members of the current Court, members of the current government, members of the Knesset (the parliament) and members of the bar association come up with selections which are then chosen by the largely ceremonial president.

The proposed changes basically make the judiciary subordinate to the government of the day.

Many supporters of the proposed changes argue that these changes can’t be the end of democracy since politicians choosing judges is how the U.S. has done it for more than two centuries.

That’s true. In a sense. But it’s a better example of why you can’t take an institution out of one political and national context and plop it into another. It doesn’t work that way. The nature of a political or civic institution only makes sense in its own context. So if you’ve wondered about this or heard this argument, here’s some of that context.

Most parliamentary democracies have features which can make them close to being a dictatorship of the parliamentary majority. That applies even more to Israel. There is a unicameral legislature. There’s no Senate or House of Lords. There’s just the 120-member Knesset. There’s also no written constitution. So there are no hard written limits on what a parliamentary majority can and can’t do. There are also no states or provinces, which might be contended seats of power.

In the U.S. system, power is highly diffused by multiple power centers at the federal level and different bases of power at the state and federal level, in addition to the federal Constitution. In Israel the situation is very different. If you control 61 seats in the Knesset, there really aren’t many limits on what you can do.

Now, this is the formal structure. Obviously there are numerous informal power centers that complicate government as there are in any country. Indeed, we’ve seen some of them in the recent crisis — the IDF, the big national labor union, major players in the private economy, etc. But in the big picture, the formal constraints are very limited and the Supreme Court is one of the few that exists.

That’s really what this crisis is about.

Even though the composition of the judiciary and the lack of a written constitution looks pretty weird from a U.S. perspective, it’s functioned as one of the few brakes on the government of the day. More specifically, as the Israeli right has become more and more beholden to authoritarian ethno-nationalists and ultra-orthodox religious parties, it’s one of the few institutions putting some backing behind minority rights, individual rights and the basic blocking and tackling of whether the government of the day has to follow the law and whether the people in the government are held to account if they break the law.

Needless to say, there are a whole range of substantive and policy issues at play between these institutions. I’m not even getting into those specifics here. The point is that you can’t see the particulars of the court’s function and composition as the whole story. You can only understand the current drama or unprecedented level of civic protest if you see it in that context of checks on the power of the government of the day and, particularly, the kind of increasingly personalized and ethno-nationalist government Netanyahu runs.

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