Israel’s court slams door on "judicial reform"

Populists everywhere, take note: Court ruling - and the war launched by Hamas - may spell the end of Netanyahu's drive to mutate Israel into an authoritarian state

Under the cover of exploding shells and rumbling tanks, Israel’s Supreme Court chose New Year’s Day to make a mark on the global struggle over the nature of democracy, invalidating the main part of Benjamin Netanyahu’s misleadingly branded “judicial reform.” Specifically, it struck down a contentious law passed in July which had eliminated “reasonableness” as a concept in Israeli jurisprudence — a key part of the grand design to create an omnipotent government of the type enjoyed by Vladimir Putin and desired by Donald Trump.

Netanyahu’s stooges had warned the Supreme Court in the halcyon days before the Oct. 7 Hamas massacre that doing so would be a violation of norms, and the prime minister avoided promising he would respect such a decision. A constitutional crisis appeared to loom – even before the current existential one. It’s actually worth a brief examination – because the story reveals much about what is odd about Israel, and also about how populists everywhere shamelessly do crazy things these days.

The law in question was pass as a “Basic Law,” which is supposed to lend it special weight. Listening to politicians speaking with gravity and confidence, many might  be tempted to believe that Basic Laws are somehow sacrosanct, and overturning them would be an extraordinary, confirming the claims of outrageous judicial “activism.” So it’s important to understand the actual situation in Israel, and how it compares to what happens in other democratic countries.

Israel lacks a constitution, because the religious parties won’t allow one, considering the Torah sufficient. This is dangerous, because constitutions are the best way to secure the rights of citizens and to ensure that a random parliament majority cannot abuse them.  After all, why can the US congress not pass a law declaring it illegal to employ redheads? Because of the US constitution. Israel doesn’t have one, and the Torah is of no assistance, and there is also no law expressly disallowing it. That’s where “reasonableness” came in.

This aspect of the solution to blocking madness is familiar from many common-law countries – including England, Canada, Australia, New Zealand, South Africa, India, and Singapore and other places which like Israel inherited British law through colonization. It enables courts to weigh in during extreme situations: Did the government give weight to relevant considerations? Was the decision motivated by improper or irrelevant considerations (like nepotism)?  Did it ignore primary considerations?

The other aspect has been, indeed, to enact semi-constitutional “Basic Laws”. But Israel’s version is a joke, for the following reason.