Who is undermining Israeli democracy?

by Jonathan Rosenblum

Jerusalem Post
December 9, 2011

In order to fully appreciate the absurdity of Court President Dorit Beinisch’s charge that even the most minimal changes in Israel’s method of judicial selection represent an attempt to undermine “the democracy upon which our society rests,” one need only know one fact: Israel’s method of judicial selection is absolutely unique in the democratic world.

No other system gives so much power to sitting Supreme Court justices to choose their future colleagues and successors. Only India among the world’s democracies also gives sitting justices a role in the judicial selection process. Are all the rest, then, not really democratic? Even by Israeli standards the claim of the unique wisdom of our system reflects a remarkable degree of hubris.

In truth, it is the Supreme Court itself that represents the greatest challenge to Israeli democracy. Richard Posner, considered by many the most brilliant living American jurist, defines democracy as “a system of governance in which the key officials stand for election at relatively short intervals and are thus accountable to the citizenry.” Judicial review, in which courts strike down statutes or substitute their policy judgments for those of elected officials or their delegates, is thus in inherent tension with representative democracy so defined.

To minimize that tension, Alexander Hamilton argued in The Federalist Papers that the judiciary must remain “the least dangerous branch,” with no power over the purse or sword. Retaining the status as the least dangerous branch, wrote the great constitutional scholar Alexander Bickel in his seminal book of that name, requires justices to exercise restraint and avoid entering into the realm of politics and making decisions based on their own personal values.

Beinisch’s mentor, former court president Aharon Barak, completely rejected any such restraint. He abandoned traditional doctrines of judicial restraint – standing and justiciability – famously declaring that “everything is justiciable,” including troop deployments in wartime, and permitted any citizen who objected to a particular governmental decision to bring a suit directly to the High Court of Justice. He boldly usurped traditional legislative prerogatives – for instance, appointing a commission to consider the issue of road closings on Shabbat nationwide.

As Prof. Ruth Gavison and many others have argued, the Israeli Supreme Court determines national “norms” to a degree without parallel in the Western world. Former court president Moshe Landau accused the court under Barak of having taken on the role of Platonic Guardians, “a role that they are utterly incapable of fulfilling and for which they have no training.”

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