Prime Minister Benjamin Netanyahu addresses the High Court on the gas deal.
(photo credit: GIL YOCHANAN/POOL)
The criticism of the Supreme Court’s natural gas decision by Justice Minister Ayelet Shaked has led some to question whether it is appropriate for government officials to question decisions of the court.
To an American observer, it is the attempt to prohibit political criticism of the court that most threatens democracy and runs the risk of turning the rule of law into a rule of judges.
The legitimacy of such criticism can be seen from the very form that judicial decisions take. When courts in countries with Anglo-American legal traditions decide even routine cases, they issue written opinions.
These opinions provide, in detail, the explanations for the court’s ruling. Why is this necessary? After all, the opposing parties have already set out at great length the reasons for their respective positions to prevail.
Why should the court not simply point to the winner? It is because the force of an opinion of the court derives from its logic and reasoning, from how well it follows prior cases and existing law. Opinions are published because the government and public are not supposed to meekly nod and accept the court’s decisions.
The requirement of revealing their reasoning presupposes the legitimacy of criticizing decisions based on their rationale, or lack thereof.
All this is even more relevant for the Israeli Supreme Court, which has given itself the power to negate the action of elected governments even without any written constitution, based on general principles like “reasonableness.”
In other Western democracies, the independence of the courts is part of a system of checks and balances – where the courts check the political branches and vice versa. Such checks include the doctrine of parliamentary sovereignty that keeps courts from overturning certain laws, or the ability of the government to appoint the judges.
In Israel, none of these checks are available. Indeed, political criticism is perhaps the only check there is, and it is minor and ineffective.
Yet in the United States, criticizing the court is not only considered legitimate, it plays a major role in political argument.
Indeed, President Barack Obama criticized a Supreme Court campaign finance decision in his most important annual speech, the State of the Union Address, with the justices seated before him. Vice President Joe Biden called the decision “outrageous” and “dead wrong.” President Obama even called for changing the Constitution to override Supreme Court decisions.
Minister Shaked’s counterpart in the United States, the attorney general, has also had occasion to sharply criticize the court. After loosing a case in the Supreme Court about voting rules two years ago, Attorney General Eric Holder released a statement calling the case “wrongly decided,” a “step backward” and “contrary to our fundamental values.” No one thought these sharp words endangered the rule of law.
Thus the criticism of the justice minister for criticizing the court fundamentally threatens what little there is left of checks and balances in the Israeli system.
Nowhere is criticism of the court more warranted than in the gas decision. Nothing in Israeli law bars such long-term commercial arrangements.
Indeed, price guarantees twice and even three times the length of the ones in the gas deal are commonly made by other countries with fossil resources.
The court invoked a general notion – that is, one that it made up – that a government couldn’t pledge a future course of action that will have the affect of limiting the choices of future governments. Yet this is what most international treaties do. Even mundane decisions about government employees fundamentally limit the choice set of future governments.
Indeed, the court’s holding is as much a “discovery” as the country’s undersea natural gas – only its value is negative.The author is a professor at Northwestern University and director of the international law department at the Kohelet Policy Forum.