The Need for Judicial Reform Isn’t Going Away
27/03/2023 | Na stronie od 28/03/2023
Many thanks to Neil Rogachevsky and Netta Barak-Corren for their thoughtful responses to my essay. Barak-Corren addressed the issue of judicial reform more directly, but let me begin with a brief comment on Rogachevsky’s response, which was devoted to a different problem with Israel’s system of government—the fact that small parties have excessive power. Many Israelis agree, myself included, and various attempts have been made to solve the problem. But that’s easier said than done.
In 1992, for instance, the Knesset instituted direct elections for the premiership in hopes of giving the prime minister more power over small coalition partners. But once voters could support their prime ministerial candidate without voting for his party, the big parties shrunk, enhancing small parties’ power. In 2014, the Knesset raised the electoral threshold in hopes of forcing out the smallest parties and making resultant coalitions more manageable. Instead, faced with the risk of not crossing the threshold, smaller parties united with even smaller and more radical groups to avoid wasting votes, and the radicals then vetoed compromises that the mainstream factions probably would have accepted, making coalitions even more unmanageable. So even though the problem of small parties having disproportionate power is widely acknowledged, it still awaits a feasible solution.
Now, back to judicial reform. Contrary to what Barak-Corren seems to think, she and I actually start from an identical premise—that you can’t turn back the clock. But from that premise we reach very different conclusions. She believes there is no way to restore the more restrained and responsible political culture of earlier decades, so the Supreme Court must remain a powerful counterweight; consequently, she argues, judicial appointments must remain beyond the politicians’ control. I believe there is no way to restore the more restrained and responsible judicial culture of earlier decades; consequently, I consider more ideological diversity among the justices essential, and that requires political control of judicial appointments.
Before discussing the judicial side of the equation, let me briefly address the political one. Barak-Corren and I agree that Israel’s current political culture is deeply irresponsible. However, as I argue in my original essay, I believe the only way to rebuild a culture of political responsibility is to start making Knesset members bear the consequences of their decisions, which means not allowing the Supreme Court to overrule policies and appointments that may be stupid or offensive—in the court’s terminology, unreasonable—but aren’t illegal. I also believe political culture is easier to change than judicial culture, because politicians face periodic elections and will lose their jobs if they antagonize the public through bad policies; indeed, as my essay noted, experience elsewhere has shown that politicians do respond to that threat. Judges, in contrast, are by design insulated from outside pressure, so there is virtually no way to change judicial culture except by appointing new justices with different views.
Barak-Corren and I further agree that judicial reform alone isn’t enough to fix the problems with Israel’s elected branches; that is why my essay also argued, for instance, that Israel needs to introduce direct elections for MKs in order to make them more of a counterweight to the executive. I also agree with her that the elected branches shouldn’t have unchecked power; that’s why I argued in my original essay, as she also argues in her response and elsewhere, that if the Knesset were to change the way judges are appointed, it would be excessive also to let the governing coalition appoint the Supreme Court president and require a supermajority of twelve out of fifteen justices to overturn laws (though I supported a smaller supermajority in principle, I don’t think it’s essential).
But it’s a mistake to view the political culture as irreparable and conclude that the best we can do is let the court curb its worst excesses. Rebuilding a responsible political culture is essential for Israel, because no matter how many policies the court overrules or dictates (and it does both lavishly), irresponsible elected officials still have the power to cause significant harm, just as responsible ones can help to realize significant good. And the work of reconstruction starts with giving politicians the power to implement their policies, then punishing them at the polls if they do a bad job running the country.
Now, what about the judiciary itself? Over the last 35 years, a culture of judicial activism has become deeply entrenched. This goes well beyond the fact that judicial review of legislation, which didn’t exist three decades ago, is clearly here to stay. Large swathes of the country’s legal establishment genuinely believe that judges, attorneys general, and government legal advisers have both the right and the duty to overrule policies they deem unreasonable and enforce “rights” never conferred or described by the Knesset, that there are and should be no restrictions on standing, that virtually no issue is beyond the court’s purview, and that the attorney general’s opinion is binding on the government. Indeed, that is the dominant view they are taught in law school.
Under these circumstances, merely eliminating the reasonableness doctrine—a step Barak-Corren has supported in her other writing—isn’t likely to make much difference; activist justices will have no problem inventing new grounds for overruling decisions they dislike. Ditto for requiring a supermajority of the court to overturn laws, another policy she has said she supports in principle, though not as part of the current government’s reform. On a court with little ideological diversity, a supermajority isn’t that hard to attain.
That’s why, far from seeking to turn back the clock, I support introducing certain practices that didn’t exist before the judicial revolution, like political control over judicial appointments and letting ministers choose their own legal advisers. As the saying goes, personnel is policy. And given the entrenched culture of activism, I think the only way to introduce more judicial restraint is by appointing justices and legal advisers who share that goal. That is why, as Barak-Corren rightly said, the Judicial Appointments Committee’s composition has proved the biggest bone of contention between reform supporters and opponents. Both sides recognize that the appointment of justices will determine more than any other factor the kind of court we have.
Barak-Corren also argued that changing the committee’s composition isn’t necessary, because now that both the governing coalition and the justices have veto power over appointments—a change introduced in 2008, when the majority needed for Supreme Court appointments was raised from five to seven of the committee’s nine members—more conservative justices are being appointed. Consequently, the change reformists are seeking will happen in any case, albeit at a more gradual pace, just as the composition of the U.S. Supreme Court slowly changed over the course of decades from ultraliberal in the 1950s and 1960s to conservative now.
Like Barak-Corren, I think gradual change is generally better than radical change. But she overstates the impact of the 2008 reform. It was indeed an improvement over the previous situation, and I agree with her that the court has more conservative justices today than it did fifteen years ago. But she ignores the fact, noted in my original essay, that the mutual veto means right-wing governments can usually at most appoint moderative conservatives—people who want to make changes at the margins, but who largely fall in line with the activist view of the court’s expansive powers. Leftist governments, in contrast, can still appoint ultraliberal justices, because they can command eight of the committee’s nine seats—the governing coalition’s three, the justices’ three, and the Bar Association’s two (traditionally, as my essay noted, the Bar representatives almost always side with the justices). And that inevitably tilts the balance toward the liberal side.
It’s true that if more conservative justices joined the committee, that balance of power could shift. But since the committee’s justices are chosen by the court president, that is possible only if a conservative justice becomes president. Based on the current seniority method of choosing court presidents, only one conservative, Justice Noam Sohlberg, is slated to be president in the foreseeable future, and even if his term coincides with a conservative government, almost all the justices who will reach the mandatory retirement age of seventy during those years are themselves conservatives, so he will have little ability to affect the court’s balance.
Consequently, the court will remain tilted toward the liberal activist side for the foreseeable future. The change in the U.S. Supreme Court’s composition was possible because, when Republicans controlled both the presidency and the Senate, they could appoint staunch conservatives like Antonin Scalia or Samuel Alito. But under the current system, Israeli conservatives almost never control appointments; thus at best, they can usually only appoint a judge in the mold of Anthony Kennedy—someone slightly more conservative than the dominant liberal wing, but who will side with that wing on many crucial votes. That is indeed the case for many, though not all, of today’s conservative justices.
And while some of today’s conservative justices have advocated certain changes, these changes have been extremely modest. For instance, Barak-Corren mentioned Sohlberg’s position on standing, and he has indeed denied standing to NGOs and other “public petitioners” in cases where people with direct, personal interests declined to appear before the court. Yet he would grant standing to public petitioners “in the absence of a petitioner with a personal interest and the ability to submit his own petition,” which is the case for most policy issues.
It’s also worth noting that even if politicians were to gain control of judicial appointments, the actual change in the court would still be gradual. First, no government has the ability to appoint more than a handful of justices to the fifteen-member court, because the justices’ retirements are staggered. Second, power changes hands periodically in Israel, just as it does in other democracies. Third, as America’s experience shows, justices frequently disappoint those who appointed them, and that is because once appointed, they are completely independent.
Beyond the issue of who controls policy decisions, however, there’s another important issue at stake in the Judicial Appointments Committee’s composition, which was rightly raised by Gadi Taub in an episode of the Tikvah Podcast with Peter Berkowitz in early March. This issue relates to the public’s respect for judges and public confidence that the Supreme Court offers impartial justice to everyone. Taub described how many conservatives and religious Jews believe the Supreme Court and the legal establishment do not protect them, but instead protect only the segment of society from which they themselves come. As one example, Taub cited the intolerable ease with which people from the “wrong” groups are held without bail until the end of their trials. But let me mention some others that resonate with many members of the current governing coalition (minorities such as Ethiopian Israelis, the ultra-Orthodox, and Israeli Arabs all have their own examples).
Item: during protests against the 1993 Oslo Accords and the 2005 disengagement from Gaza, thousands of demonstrators who blocked roads were beaten by police and jailed; the jailing of protesters was approved by the entire legal establishment—the prosecution, lower courts, and the Supreme Court. Moshe Feiglin, later a Likud MK, was charged with sedition for advocating civil disobedience and sentenced to jail (though the sentence was commuted to community service); his conviction and sentence were upheld by the Supreme Court. Today, too, there are widespread calls for civil disobedience; protesters have blocked roads on a weekly basis and also staged more severe disruptions, including collective refusals to do reserve duty and blockading Israel’s ports and airport. Yet almost nobody has been kept in jail for more than a few hours, and certainly nobody has been charged with sedition.
Item: police brutality against the current protesters is quite properly being investigated. But in 2005, when a senior police officer was caught on tape ordering his subordinates to beat up peaceful anti-disengagement demonstrators in Kfar Maimon, he was rewarded with promotion, and that promotion was approved by the same Supreme Court that has repeatedly quashed appointments over non-issues like friendship with a cabinet minister. (Years later, the officer was forced out for sexually harassing female subordinates; unsurprisingly, an abusive cop remains an abusive cop.)
Item: the attorney general has barred the prime minister from any involvement in the legal reform—the number-one issue rocking the country, and hence the issue the public would most expect its prime minister to address—on the grounds that he has a conflict of interests due to his criminal trials. But the attorney general and the Supreme Court president have publicly lobbied against the reform, despite having an obvious conflict of interests because it would curtail their own power. In what other democracy do attorneys general and chief justices publicly lobby against government legislation, even when they don’t have conflicts of interests?
Item: left-wing and right-wing governments have both passed legislation that sought to encourage but didn’t require ḥaredi yeshiva students to do army service, both because forcing them would probably be impossible and because the army doesn’t want them very much anyway. The court has overturned all these laws on the grounds that they violate the principle of equality. But it has never suggested that this principle would be grounds for overturning the sweeping draft exemption granted a much larger group, Israeli Arabs.
Item: Yaakov Neeman, the first justice minister to seek to implement legal reform, was forced out within a few months by a perjury charge so trumped up that the trial court threw it out without even asking him to submit a defense. The charge stemmed from minor factual errors in his police statements and a court affidavit—errors that he himself discovered, reported to the police and the court and corrected. As the trial judge said, indicting people for seeking to correct their mistakes merely discourages them from being truthful. And the top prosecutor who filed that travesty of an indictment? She was rewarded with a Supreme Court appointment at the urging of the justices on the appointments committee, despite the fact that, as the left-wing daily Haaretz reported at the time, “legal circles express doubts as to [her] suitability.”
Item: then-Supreme Court President Aharon Barak and his colleagues repeatedly pushed to promote a lower-court judge who called the Ḥaredim “parasites . . . who have never contributed a jot to the country” and told a disabled attorney she had no business being a lawyer if she couldn’t climb the courthouse steps. The judge’s blatant prejudice against two different minorities was, in the legal establishment’s view, no obstacle to a higher judicial post. The justice minister ultimately blocked his promotion, but he remained a judge.
Item: the legal establishment frequently protects its own when they engage in behavior it would deem disqualifying in anyone else. As one of many examples, consider the lower-court judge Hila Cohen. A disciplinary panel comprising two Supreme Court justices and a district court judge concluded that she twice falsified protocols of a hearing by listing a defendant as present when he wasn’t and then describing fictional proceedings in which the absent defendants submitted documents and orally requested postponements. She also destroyed the written postponement requests that the defendants submitted instead of appearing personally. And her punishment? The disciplinary panel “solved” her bad behavior by transferring her to another court.
I don’t think the legal establishment was motivated by actual malice in most of these cases, but I do think unconscious bias plays a large role. When prosecutors and judges see people like themselves disrupting traffic to oppose policies they also oppose, for instance, this strikes them as justified and undeserving of punishment. But when they see people unlike themselves disrupting traffic to oppose policies they themselves support, it strikes them as unjustified and deserving of punishment. Similarly, they understand Israeli Arabs’ opposition to the draft, so they accept their sweeping exemption; but they find the ḥaredi belief that yeshiva study is more important than army service incomprehensible, so they deem that sweeping exemption unconstitutional.
This helps to explain why judicial appointments are so crucial to the governing coalition. Quite aside from the judicial-activism issue, religious Jews and those on the political right want justices who will grant them equal protection—who will think that blocking roads is either acceptable for all or acceptable for none, and who will not tolerate bad behavior by police officers, prosecutors, and judges just because the victim isn’t “one of us” or because the perpetrator is.
I’d also like toaddress one other argument Barak-Corren made: that the court justifiably interpreted two Basic Laws on human rights as authorizing judicial review—even though only a quarter of the Knesset originally voted for them in 1992 and most MKs did not think that is what they were doing—because of 1994 amendments passed by a sweeping majority. First, nothing in these amendments explicitly authorizes judicial review. Certainly, there were MKs who thought they were introducing judicial review, and said so; there were also MKs who thought and said so in 1992. But most MKs had no reason to believe it in either 1992 or 1994. As I noted in my original essay, the court had never before interpreted any Basic Law as granting that power, nor had it given any hint that it planned to use these laws in that way as of 1994. Indeed, her argument that most MKs skipped the 1992 votes in favor of campaigning merely proves my contention that they didn’t think they were doing anything as momentous as approving judicial review of legislation for the first time ever. For truly important votes, MKs show up even in the middle of a campaign.
More importantly, though, I think Barak-Corren ignores the difference between declining to grant rights that never previously existed and revoking rights once they have been granted. The Knesset could have rejected both Basic Laws in 1992, and might well have done so had MKs realized it would lead to judicial review of legislation. But once passed, even conservatives appalled by the court’s abuse of the Basic Law: Human Dignity and Liberty assumed that repealing them would be impossible without generating precisely the kind of domestic and international storm today’s legal reforms have generated. And if you assume a law is unrepealable, it makes sense to support an amendment that might improve it slightly no matter how much you dislike the original law. That’s also why the current government proposed letting the Knesset override judicial rulings of unconstitutionality rather than seeking to invalidate Human Dignity and Liberty, and why I backed that decision despite disliking the idea of an override.
The assumption that Human Dignity was unrepealable may have been wrong; I was quite surprised when a liberal, anti-reform colleague told me he would be more comfortable with that than with many of the proposals the reform does include. I don’t know how widely his view is shared, but if it’s possible, I would much rather scrap the override and repeal Human Dignity, because it’s a terrible law. It ought to be replaced with more focused legislation that enshrines specific rights rather than vague, overly broad concepts like “dignity,” “freedom,” and “Jewish and democratic values” that the court can interpret, and indeed has interpreted, to mean almost anything.
I do agree with Barak-Corren that the way recent Knessets have repeatedly amended Basic Laws for narrow political needs is intolerable. But as I said in my original essay, I think the solution for that is to enact stringent procedures for passing Basic Laws, not to allow the Supreme Court to overturn parts of what the court itself has dubbed Israel’s constitution. Unfortunately, and contrary to my naïve assumption in that essay, I don’t think this is possible now despite all sides agreeing that it is necessary, and it won’t be possible until agreement is reached on what the rest of Israel’s constitution should contain. The coalition couldn’t agree to stringent procedures before genuine legal reform takes place, because that would make it much harder to pass such reforms in the future. And the opposition couldn’t agree to such procedures if the current reform did pass, because repealing it would then be too difficult.
Based on conversationswith reform opponents, I don’t consider compromise impossible. Unfortunately, I do think it’s impossible right now; the only realistic chance for it was squandered when President Isaac Herzog—following the opposition’s instant rejection of a leaked proposal that many on the right considered a tenable basis for talks—decided publicly to back a “compromise” tilted heavily in the opposition’s favor. Once that happened, the opposition could not accept less, yet the plan was unacceptable to the coalition. As Prime Minister Benjamin Netanyahu rightly said, “key clauses . . . only perpetuate the current situation and do not bring the necessary balance between the branches,” and the concessions it did make to reform advocates would have had little impact. Indeed, as several commentators noted, the plan seemed primarily intended not to bridge the gaps between the opposing sides, but to peel the ḥaredi parties away from the pro-reform bloc by granting their two chief concerns—ministerial appointments and legislation governing draft deferrals for yeshiva students—explicit immunity from judicial review.
So where does Israel go from here? It’s hard to be optimistic right now. As of this writing, the reform seems dead in the water, and that’s partly because the government’s own behavior has badly undercut the case for it. Coalition members have said, done, and proposed so many appalling things (Haviv Rettig Gur provides a nice summary) that even many who supported the government in the last election are afraid of giving it more power. The obvious conclusion is that reform will be impossible under any government unwilling to act responsibly. But in the (likely) event that the coalition loses the next election, I fear it will be interpreted not as mandating more restrained, responsible behavior in general, but as a specific verdict on judicial reform, thereby deterring reform efforts for many years to come.
More importantly, however, the anti-reform protests have broken something fundamental in Israeli society. Until now, for instance, there was general agreement that the army was above political disputes; refusing to serve for political reasons was a fringe movement on both right and left. That’s why only a few dozen out of roughly 20,000 soldiers disobeyed orders during the 2005 disengagement, though millions of Israelis vehemently opposed the pullout. But today, refusal is no longer a fringe movement; hundreds of air-force and intelligence-corps reservists have already refused to report for duty and thousands more have threatened to do so. And once the army has become a political battlefield, it will be fair game for both sides. Do today’s protesters really think that next time a government wants, for instance, to evacuate settlements, there won’t be massive disobedience among right-wing and religious soldiers, who are overrepresented in many combat units and the junior officer corps?
The same goes for civilian protests. Even before the nationwide strike that began when Netanyahu fired his defense minister for publicly advocating that the reform be paused, anti-reform protesters had been staging weekly “days of disruption” where they blocked roads, blockaded the ports and airport, and generally disrupted normal life around the country. And it’s far from clear the protests will halt even now that Netanyahu has paused the reform; organizers say they plan to continue until the reform is scrapped entirely. But the right certainly has the manpower to copy these disruptive tactics; do the current protesters really think rightists won’t do so next time they viscerally oppose a particular policy? Or that Israeli Arabs, who constitute a fifth of the country’s population, won’t do so to protest policies they oppose?
There’s also likely to be a significant erosion of faith in democracy on the political right and within the religious public. For years, these Israelis believed the legal system could be changed through the standard democratic processes of winning elections and passing legislation; now, they have discovered that winning and legislating through normal democratic procedures isn’t enough.
Rogachevsky and Berkowitz both urged the right to undertake a campaign of public education in an effort to persuade people beyond its own base that reform is warranted. But that is easier said than done when the media and the legal establishment routinely treat any criticism of the existing situation as “antidemocratic,” a tendency that only seems likely to intensify now. Haaretz recently fired Taub as a columnist because it decided that even one pro-reform article, amid the hundreds of anti-reform pieces it has run, was too much. In this situation, I fear that democracy’s inability to respond to their interests when they play by its rules will lead many right-wing Israelis to give up on democracy altogether; some will see violence as the alternative.
Yet even if the current crisis eventually subsides, the underlying issue won’t go away. At some point, conservatives and liberals are going to have to sit down and negotiate a genuine compromise on legal reform. Without that kind of leadership, I fear this issue will continue tearing Israel apart for decades to come.