Israel has been roiled by protests, boycotts, airport and road closures, wildcat strikes and refusals to perform army service, in scenes reminiscent of France, for half a year.
The cause is judicial reform.
The government announced plans to revitalize Israel’s parliamentary democracy by restoring separation of powers and curbing judicial overreach.
Protesters demand the government shelve the reform, arguing Israel cannot be a democracy unless the country’s Supreme Court enjoys unchecked powers, unbounded by law.
This week saw the passage of the first of the planned reform bills, a so-called “reasonableness amendment” that tackles one of the most egregious forms of judicial self-aggrandizement.
The amendment addresses an issue of administrative law.
Israel, like every modern democratic state, has a vast unelected bureaucracy that governs many of the most important aspects of citizens’ lives.
Administrative law is the set of legal tools courts use to ensure bureaucrats exercise only the powers they have according to law.
Controversially, in 1980, Israel’s Supreme Court created a new administrative-law rule called the “reasonableness doctrine,” under which the court second-guesses the wisdom of bureaucrats’ otherwise-legal policies.
Even more controversially, in the 1990s the court expanded the reasonableness doctrine to grant itself power to second-guess the wisdom of the most senior elected officials including the prime minister and members of the Knesset (the parliament).
There is no parallel to either of these developments anywhere in the democratic world.
From the beginning, reasonableness review was controversial.
Then-chief justice Moshe Landau derided it as superfluous and improper.
He said interference with the “reasonableness” of officials’ policy decisions was unwarranted and courts had enough tools to review administrative action without the new doctrine.
Controversy only grew as the court inflated “reasonableness” to relegate all elected officeholders to the status of junior clerks.
Over the years, the court, and later the attorney general, used reasonableness to force the firing of senior officials including cabinet members, block and delay military operations, raise and lower taxes and welfare benefits and bar major foreign-policy initiatives.
Elsewhere in the West, such judicial actions would be considered plainly illegitimate.
With the US Supreme Court embroiled in controversy over its rightward tilt in recent years, both right and left agree that, as Justice Elena Kagan said in her recent dissent in Biden v. Nebraska, the court “is supposed to stick to its business . . . to stay away from making this Nation’s policy. . . . The policy judgments, under our separation of powers, are supposed to come from Congress and the President. . . . [If] the Court becomes the arbiter — indeed, the maker — of national policy,” it exceeds its proper role. “And it is a danger to a democratic order.”
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Other countries use the same terminology of “reasonableness” to describe different doctrines, such as judicial blocks on arbitrary and capricious agency decisions, but the reasonableness doctrine remains unique to Israel, making its court singularly powerful.
This is not to Israel’s credit.
“Reasonableness” review makes courts policymakers, politicizing the judiciary and weakening the rule of law on one hand while weakening democratic rule and accountability on the other.
The new legislation is extremely modest.
It leaves reasonableness review intact except where used to second-guess the decision-making of elected officials.
Israel’s high court remains the most powerful administrative-law court in the Western world.
The importance of the reasonableness amendment right now is largely political.
It will prove significant only if Israel’s parliament adopts the remainder of the reform without excessive delay.
The new law brings the center of the debate over judicial reform from the streets back to where it ought to be — the chambers and hallways of the elected legislature.
The prime minister has asked opposition leaders to join him in hammering out a compromise version of judicial reform that can enjoy broader public support.
One can only hope opposition leaders rise to the occasion.
The fear now is that Israel’s Supreme Court will declare it can ignore the legislation and continue to exercise “reasonableness” review, enacted law be damned.
Israel, of course, has no constitution, and there is no legal precedent for such an action by the court.
It’s hard too to ignore the questions of legitimacy raised by a court declaring itself above the law to aggrandize its already-excessive authority.
Unfortunately, Israeli Supreme Court decisions, particularly in recent years, have exhibited neither moderation nor restraint.
The political chaos that will follow the court’s overreach could be devastating.
Avi Bell is a professor of law at Bar Ilan University and the University of San Diego.
