Israel is going through a constitutional crisis. The most right-wing government in the nation’s 75-year history has proposed to rein in Israel’s independent judiciary, consolidate political control over judicial appointments, and reduce the role of government lawyers in determining the legality of its actions. This package of proposals has sparked an enormous counter-reaction. Hundreds of thousands of Israelis have poured into the streets in protest. Opposition leaders, members of the military, industrial titans, retired judges, and many more elements of society have branded the proposed reforms as a mortal threat to the nation’s character. The judicial reformers and their opponents each claim to be on the side of democracy.
The attacks on the independence of the Israeli Supreme Court, as well as calls to reform the process of appointing justices, have striking parallels to calls for reform of the structure and role of the United States Supreme Court. Vast differences separate the two legal systems. Most notably, Israel’s constitutional crisis comes with a big asterisk: the nation has no written constitution. Israel’s Supreme Court instead created its power to invalidate laws passed by its legislature through a “constitutional revolution” accomplished using its own decisions. Lacking a constitutional basis for judicial review, the independence of the Israeli Supreme Court rests on a far more precarious foundation than the U.S. Supreme Court. Yet the forces resisting judicial overhaul in Israel provide lessons that can illuminate proposals for structural judicial reform in the United States.
The debates in both countries crystallize a long-standing tension raised by judicial review of legislation: why and when should courts be authorized to invalidate policies enacted by the political branches on grounds of unconstitutionality? And does assigning such awesome power to unelected judges frustrate or further democracy? The debates roiling Israel have highlighted arguments that judicial review, rather than thwarting democratic values, serves as an indispensable component of democratic government. Those arguments provide a counterpoint to calls here to reduce the power of the U.S. Supreme Court or deprive it of the sole power to provide the final word on interpreting the Constitution. That both the United States and Israel are wrestling with these fundamental questions makes this an opportune time to revisit them. And the linkage in the Israeli debates of an independent judiciary to the protection of democracy suggests a cautionary note to those who would alter the independent authority of our Supreme Court.
The Structure of the Israeli Legal System
The drive for reform requires an understanding of the Israeli Supreme Court and the source and nature of its power of judicial review. After its declaration of statehood in 1948, Israel adopted a set of “Basic Laws” to provide the overarching framework for its government. In 1992, Israel adopted additional basic laws protecting “human dignity and liberty” and “freedom of occupation.” The new rights included a right to protection of property, life, and dignity; a right to “privacy” and “intimacy”; protection against searches of an individual’s person, premises, and effects; and protection of a person’s confidential conversations and writings. But the basic laws were never cemented into a constitutional structure. The constitutional project – the idea that the basic laws would eventually be assembled into a formal constitution that would rise above other laws –was deferred and later abandoned. Over time, it became clear that the competing factions and segments of Israeli society, ranging from liberal secular Israelis to religious Zionists to ultra-orthodox (Haredim) and many more, held starkly different views about fundamental questions such as the nature of the state, the role of religion in society, and Israel’s relation to the West Bank—territory occupied after the 1967 war. The challenge of finding political compromises to achieve consensus on the principles to be enshrined in a constitution was overwhelming.
Enter Israel’s Supreme Court. Beginning in the mid-1990s, the Supreme Court undertook its own project to constitutionalize the basic laws. In a series of decisions, known as the “constitutional revolution,” Israel’s Supreme Court determined that basic laws could prevail over and invalidate ordinary legislation adopted by Israel’s Knesset. This constitutional revolution was all the more remarkable because, in theory, nothing would stop a simple majority of the Knesset from revising or repealing the basic laws themselves. To preempt this move, the Israeli Supreme Court suggested that even a basic law could be unconstitutional if it contravened a fundamental tenet of the State of Israel. And the power of Israel’s Supreme Court was further enhanced by its role, inherited from British practice, to sit as a High Court of Justice to review any action by the government. In such actions, the Supreme Court held, anyone could ask for such a ruling, whether or not that party had a concrete stake in the controversy. And all such challenges were judicially resolvable by principles of reasonableness. In combination, these doctrines meant that Israel’s Supreme Court had expansive power to review virtually every type of government action, wielding power over the political branches based on the Court’s assessment in a particular context that the proposed action was unreasonable.
These sweeping doctrines of judicial authority, coupled with intense controversy over certain substantive decisions of the Israeli Supreme Court – notably concerning the exemption of the ultra-orthodox from military service, the West Bank settlements, and the protection of Palestinian rights – led to right-wing backlash. For years, elements of Israeli society, particularly religious and conservative parties and their constituents, clamored to rein in the Supreme Court’s power. The critics accused the court of elitism and decried its asserted frustration of the democratic process. Why, they asked, should unelected Justices be empowered to strike down laws passed by the democratically elected Knesset, which represents the will of the people?
The selection process for Justices amplified these criticisms. A nine-member selection committee holds the power of appointment, and only four members are political figures: the Justice Minister, one other cabinet minister, and two Knesset members (usually consisting of one from the ruling coalition and one from the opposition). The other five members consist of two members of the Israeli Bar Association and, remarkably, three members of the Court itself: the Chief Justice and two other Supreme Court justices. Because appointing a justice generally requires a seven-member majority, the incumbent justices could block the appointment of a new member. This arrangement is a rarity among democracies, which typically give elected public officials full say over appointments to constitutional high courts.
Calls for Judicial Reform in Israel
All of this fueled the recent calls for judicial reform in the name of democracy. And with the return of Benjamin Netanyahu to power after the most recent Israeli elections, as the Prime Minister heading a coalition government dependent on radical right-wing parties, the clamor for judicial reform reached a crescendo. The ruling coalition is pressing for a package of legal measures that, among other things, would empower the Knesset to override Supreme Court decisions by a simple majority; alter the selection committee for Justices to greatly enhance the government’s control over appointments; and abolish decisions based on unreasonableness. These proposals have many detailed nuances that will likely evolve as they move through the political process. But the unifying argument of proponents is that these reforms are necessary to restore politically accountable control over a runaway Supreme Court – that is, to vindicate democracy.
These proposals have triggered an extraordinary outburst of protest across wide swaths of Israeli society. Ever since the new government came into power, weekly mass protests of nearly unprecedented scale have swept across Tel Aviv and Jerusalem, drawing hundreds of thousands into the streets. The cries that these proposals threaten to destroy Israel’s democracy and fundamentally alter the county have emanated from multiple sectors of Israeli society, in the strongest possible terms. Former justices, justice ministers, leading economic figures, opposition political leaders, Israeli reservists, and even segments of the ultra-orthodox religious right have described the laws in apocalyptic terms, as jeopardizing the nation’s very soul. A consistent refrain is that the assault on the independence of the Israeli Supreme Court represents a dire threat to democracy itself. And faced with mass protests in Israel, Netanyahu has recently paused the legislative process.
Despite the pause, the alarm over the weakening of an independent judiciary remains intense. The intensity is amplified by the unity of the political branches in Israel: the executive authority of government always represents the ruling coalition in the Knesset. The Prime Minister attains his authority by virtue of assembling a coalition of at least 61 members of the 120-member Knesset. Accordingly, the only institution of government with the power to push back on excesses is the Supreme Court. Only it can enforce legal limits against the combined political will of the government and Knesset to enact the programs and policies they favor. And the opponents of the reforms characterize attacks on the Supreme Court as anti-democratic in the extreme. So each side of the debate is wearing the mantle of democracy; both those that would diminish the Supreme Court’s power and those that would preserve it view the struggle as central to maintaining Israel as a democratic state.
Calls for Judicial Reform in the United States
Before unpacking the lessons in this battle for the United States, it is worth turning to growing criticisms of the power of our Supreme Court. Since 1803, the Court has interpreted the Constitution to empower it to engage in judicial review and to strike down legislation that violates the Constitution. In the second half of the twentieth century, conservative voices were the most prominent in criticizing the exercise of this power as unjustified judicial activism. But recently, progressive critics have taken issue with the Court’s power to “say what the law is” – or at least with the way in which the Court has exercised its constitutional authority.
The source of these recent criticisms is well known. Following Justice Scalia’s death, President Obama nominated Merrick Garland, who had served for years as a distinguished and widely respected federal appeals court judge with bipartisan support. The swap of Scalia for Garland would have ushered in a new era of Justices appointed by Democratic presidents holding a majority on the Court. The potential for progressive constitutional change seemed attainable for the first time in decades. But Republican Senate Majority Leader Mitch McConnell refused to allow Garland to receive a hearing, let alone a vote. And the Scalia seat fell into the hands of President Trump, who quickly appointed conservative Justice Neil Gorsuch. Progressives and Democrats felt that they had been robbed of a seat that would have swung control of the Court to the left. Then, Trump appointed Brett Kavanaugh to replace Justice Kennedy, further pushing the Court to the right. And the final blow landed when Ruth Bader Ginsburg died less than two months before the 2020 election, and the Senate expedited confirmation of Trump’s third nominee, Amy Coney Barrett, just before the 2020 presidential election. This trio of Trump appointees cemented a 6-3 conservative super majority and set the stage for dramatic conservative changes to constitutional law. In short order, the newly energized and powerful conservative majority erased liberal precedents, expanded rights for favored conservative causes like firearms and religious rights, and overruled the iconic decisions protecting a woman’s right to choose.
The velocity and head-spinning nature of these changes – all in a conservative direction – prompted progressive calls for reform to rein in the Supreme Court’s power. President Biden appointed a bipartisan commission to study the Court and analyze proposals for its reform. The Commission studied breakdowns in the polarized confirmation process and evaluated possible changes ranging from court expansion, to term limits, to jurisdiction stripping. To varying degrees, these changes would fundamentally revise the Court’s place in our constitutional order and reduce the Court’s independence and authority vis-a-vis the political branches. Some recent scholarship has gone even farther to argue that the Supreme Court does not have a monopoly on final constitutional interpretation and that many, perhaps most, questions of constitutional meaning should be left to the national political branches. According to some scholars, the Supreme Court used the Constitution after the Civil War to thwart progressive exercises of congressional power. The Supreme Court, rather than being an instrument for protecting rights, became an obstacle to congressional action – and a frustration of the democratic process. And today, they argue, it is happening again.
Protecting Democracy? Comparing Calls for Judicial Reform
If this refrain sounds familiar, it should. The new, ultra-conservative Israeli government’s drive to regain political control over Israel’s supreme court has an eerie resemblance to liberal calls for reform of the United States Supreme Court – with at least one seismic difference. In Israel, the “reformers” are radically on the right: they want more religious influence in government, more freedom for operations and protection for settlements in the West Bank, and more national power to preserve Israel’s Jewish identity. In the United States, the would-be reformers are progressives who object to the Court’s dismantling of constitutional protections for abortion, its invalidation of protection of voting rights, its expansion of gun rights, and its blocking of campaign finance regulation. So the constituencies advocating for reform of the courts’ powers differ significantly. But the criticisms of judicial independence in both systems have a common element: each claims to be marching under the banner of democracy. The judiciary in both countries, in the would-be reformers’ eyes, consists of unelected elites who are blocking the will of the people, expressed through popular elections.
Yet only in Israel do the opponents of reform – those who would preserve the courts’ power –claim that they are true protectors of democracy. The Israeli opponents of judicial reform see judicial review – that is, the courts’ power to declare government action unconstitutional and to safeguard minority rights – as the vindication of democracy. For that reason, they see reforms that would place political controls on the Israeli Supreme Court and allow the Knesset greater powers to make laws and control the appointment of judges as antithetical to democracy.
What Does Democracy Mean?
The reasons for that claim go to the heart of what we mean by democracy. And those taking to the streets in Israel to stand up for the court’s independence have a vision of democracy that holds a lesson for considering whether it is wise to fundamentally alter the Court’s role in the U.S. legal and political order. Specifically, Israeli views illuminate whether constraining the courts and placing more power in elected representatives is democratic, anti-democratic, or in some ways, both.
From its roots in ancient Greece, democracy means a government reflecting the will of the people. Put differently, the consent of the governed also means political control by the governed. This allows policies to be set according to the preferences of the majority of voters, expressed, in a republic, through the laws enacted by their elected representatives. So a judicial act that thwarts majority preferences could be viewed as antithetical to democracy. Why should unelected judges interpreting our democratic texts be authorized to nullify laws that the people’s representatives have enacted? This view animates reformers in both Israel and the United States: critics of supreme court decisions that invalidate laws on constitutional grounds see it as frustrating rather than furthering democracy. The types of laws may be different, but the impulse is the same.
But majority rule by the people’s elected representatives is not a complete description of democracy. Rather, a view that majority power should be untrammeled by courts is a radically incomplete account of democracy. A single-minded focus on majority rule overlooks another key feature about what it means to have an elected government accountable to the people. In a democracy, the government comes into power by winning more votes than the opposition – whether through a free and fair election of a single leader or by cumulating diverse parties into a coalition. But, once in power, the government represents the entire population, not just those who elected it. Minorities, including those who oppose the government or have been historically oppressed or have minimal political power, must be able to look to the government for protection of basic civil and political rights. Even citizens who have lost the franchise or never had it – youth, for example – have a claim to be respected by the state. In a pluralistic society, this is essential. For a state to endure as a legitimate body beyond the term of office of those currently in power, all citizens must be able to view the government as an ongoing and evolving institution that, in fundamental ways, places the interests of the country as a whole above partisan preferences. Only by safeguarding minority rights can all members of society maintain their stake in the continuing project of self-governance.
This is particularly critical in societies like Israel and the United States. Israel was founded as a Jewish and democratic state. Although Israel’s Declaration of Independence does not use the word “democracy,” it appeals to Arab inhabitants of Israel to participate in the “upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions.” And the stated purpose of the Basic Law on Human Dignity and Libertyis “to embed the values of the State of Israel as a Jewish and democratic state, in a basic law.” Yet a 2018 Basic Lawcharacterizes as Israel as “The Nation State of the Jewish People.” From its flag to its language, the Jewish character of the state inescapably defines its existence. Yet for 20% of the population that is Arab, that means exclusion not only from political power, but from the very features of the state that give Israel its raison d’être. In 2021, Israel’s Supreme Court rejected challenges to the law, including a claim that it conflicts with Israel’s character as both Jewish and democratic. But given these political and demographic realities, the necessity for protecting minority rights to preserve Israel’s democratic character is all the more vital. Similarly, in the United States, with its heterogeneous population, legacy of slavery, history of minority voting suppression, and continuing struggles with discrimination, the safeguarding of minority rights is similarly essential to preserving democracy.
How Does Judicial Review Protect Democracy?
Viewed through that lens, judicial review to protect minority rights against the tyranny of the majority is indispensable to democracy. Rather than taking away power from the people, judicial review must protect the entire polity: the ideal that the government represents the entirety of the people, rather than the majority factions that have ascended to power. And taking the question up a level of generality, judicial review preserves the rule of law itself – the guarantee that in a pluralistic society, equality before the law is extended to all, even with different constituencies that have disparate access to power and widely differing interests.
And courts protect democracy in an additional way: by protecting a free press, the expression of unpopular views, and the integrity of the electoral process itself. To thrive, a democracy needs an informed public that is free to debate the issues. Without protection for free expression, the government has the power to skew public debate and prevent criticism of its actions. The Supreme Court has long recognized the vital connection of free expression to democracy, stating that the First Amendment has “its fullest and most urgent application” to political speech. So too has Israel’s Supreme Court. Even before the constitutional revolution in the 1990s, Israel’s Supreme Court found doctrinal ways to prevent the government from suppressing a free press, even in certain cases for asserted national security reasons, recognizing that “[t]he principle of freedom of expression is closely bound up with the democratic process.” Yet as Justice Scalia once wrote, “[a]ll government displays an enduring tendency to silence, or to facilitate silencing, those voices that it disapproves.”
Courts are the only branch of government that has an unalloyed institutional mission to protect those rule-of-law, equality, and free-expression interests. Particularly in a Knesset-based system – where the government and the ruling legislative majority are fused – protection against the tyranny of the majority must fall to the courts. No other institution of government can be counted on to have that independent goal. Without that check, governments can suppress opposition views and public debate, necessary to an informed electorate. An unchecked government can even strangle democracy itself by suspending voting, or more subtly skewing the timing and process of elections, thus entrenching itself in power. It is perhaps for that reason that the Israeli opponents of court reform efforts are so deeply committed to linking judicial independence to the preservation of a democratic state.
The vision of judicial review as a check and balance that is indispensable to democracy plays a less prominent role in dialogue over progressive calls for judicial reform in the U.S. That may be in part for institutional reasons: a variety of political and legal checks and balances exist to further democracy in the U.S. besides independent courts. A bicameral Congress might not be controlled by a single party. And the House and Senate have vital powers of their own to counter executive power, ranging from investigative authority to impeachment, and institutional incentives to assert them. Likewise, the President’s vast powers over the Executive Branch provide a counterweight to Congress, particularly when the executive and legislative branches are controlled by different parties.
Beyond that, an unalloyed view of the Supreme Court as a protector of rights is refuted by history. In notorious instances, the Supreme Court has failed to protect minority rights or democracy itself. Dred Scott, which denied citizenship to enslaved and formerly enslaved persons, cannot be erased from the Court’s record. Plessy v. Ferguson, which enshrined legal segregation and the notion of “separate but equal,” and other post-Reconstruction decisions represented setbacks to freedom and equality. The Lochner-era decisions thwarted progressive democratic control over the economy. Hirabayashi and Korematsu condoned ethnicity-based confinement of more than 100,000 innocent people. Some may regard the current Court’s recent decisions restricting voting rights and stripping away protection of a woman’s right to choose as equally flawed and destructive to democratic rights, striking blows against the full and equal participation in society by classes of individuals.
Substantively objectionable decisions on such deeply felt issues may raise questions about the Supreme Court’s legitimacy. This summer, members of the Supreme Court themselves joined the debate. Justice Kagan described three principles that contribute to a public perception of judicial legitimacy, i.e., that the Court is acting like a court rather than like a political body. First, a court must respect precedent; second, a court must limit itself to deciding what needs to be decided and not reaching out to make law; and third, a court must apply consistent methodological principles that do not vary from case to case to achieve favored outcomes. Justice Kagan did not name names or say that the Court had transgressed those boundaries. But her dissents in major cases spoke volumes about these concerns. In response, Chief Justice Roberts and Justice Alito pushed back on the legitimacy challenge. The Chief Justice contended that disagreement with a court’s decision is not justification for impugning the Court’s legitimacy. And Justice Alito went further, saying that questioning the Court’s legitimacy “crosses an important line.”
But regardless of whether particular Supreme Court decisions of the past few terms raise judicial-legitimacy concerns, a core reality of our system remains: the Court has a historic and unique institutional role in safeguarding the rights of unpopular minorities, the freedom of expression, and the integrity of the political process itself. As Alexander Hamilton recognized in Federalist 78, judicial independence is vital “to guard the Constitution and the rights of individuals from the effects of those ill humors,” which “have a tendency. . . to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” The Court’s recognition of a special role for the judiciary to protect discrete and insular minorities who lack the ability to protect themselves through the ordinary political process provides a legal framework for implementing that view. So do landmark decisions striking down segregation, allowingchallenges to distortions in the political system, vindicating rights to equal voting processes, advancing criminal justice, and upholding other liberty interests.
Those decisions could only be the product of a judiciary that is independent – and has the power to wield the Constitution to overturn politically driven excesses. The specific means of achieving judicial independence – for instance, life tenure and plenary control over the Court’s jurisdiction through the certiorari process – may be debatable. Judicial independence exists on a spectrum, not in one immutable form. But regardless of how judicial independence and the authority to conduct constitutional review are achieved, an independent judiciary with the power to enforce unpopular constitutional rights and protect minorities who lack power in the political process is critical to weaving a pluralistic society into a stable whole and keeping the channels of discourse open to those who object to the current regime.
Confronting the Hard Questions
Israel’s Supreme Court carries out this mission with a much less stable foundation and source of legitimacy than the U.S. Supreme Court. Lacking a constitution, Israel’s Supreme Court has created a somewhat similar structure out of a series of rulings that gave quasi-constitutional stature to certain of its basic laws. But that structure is fragile, even without the dramatic contraction of judicial power that the current reformers would enact. Perhaps because of the acute threat that the Israeli Supreme Court faces – with no legal backstop by a constitution – the opposition to reform has taken to the streets, risking arrest and injury, to protest and to cry from the rooftops the threat to democracy itself.
It is more difficult to imagine protesters in the United States taking to the streets if Congress were debating a constitutional amendment that would overturn Marbury v. Madision, the canonical case in which the Supreme Court first engaged in judicial review of a federal statute’s constitutionality and, finding the law unconstitutional, declared it invalid. True, the difficulty of amending the U.S. Constitution, especially to achieve such an abstract goal, would mean that proposals to dethrone the Supreme Court as the ultimate arbiter of the Constitution would run into obvious and insuperable political obstacles. But even more modest measures may themselves threaten the Supreme Court’s role in protecting democracy.
Of course, the Supreme Court has not always discharged its duty with honor and when the pendulum swings too far, calls for structural reform are inevitable. But it is worth stepping back to recall that courts with the power to decide hard questions will necessarily make mistakes. That is particularly true when courts must interpret vague and broad constitutional guarantees such as freedom of speech, due process, and equal protection. Even the methodology for answering these constitutional questions is deeply contested, and the ascendant views on those questions will shift over time.
As Israel’s experience makes clear, however, the calls for judicial reform can swing too far in the opposite direction – away from judicial independence and towards political power. If the political branches hold an iron grip over all policy decisions, justifying their authority in the name of democratic rule, democracy itself can be jeopardized.
This leads to the hard questions that each society must decide for itself about how to balance legislative control over policy with the protection of unpopular rights. Giving courts the power to override legislation based on constitutional principles can seem anti-democratic. But a democratic society’s decision to tie itself to a constitutional mast has a valid purpose: the people surrender a measure of majoritarian self-governance in order to achieve the greater good of pluralism.
Those who would diminish the courts’ power to enforce those deeper norms and ideals should think carefully about what it means to democracy to weaken minority protections and allow the passions of the times to take precedence over the principles of the past. The mass protests in the streets in Israel should be a warning sign to all those who would alter the structure and independence of our courts because of outrage over what the current Court decides. When democracy hangs by a thread, too deep inroads on judicial independence may cut that thread. The fall to the bottom would be long and hard.