Dershowitz to ‘Post’: Netanyahu should drop Supreme Court override plan

Netanyahu's coalition has a plan to pass a law that will mean the Knesset can override the High Court of Justice.

Alan Dershowitz outside his home in Miami Beach, Florida (photo credit: ANDREW INNERARITY / REUTERS)
Alan Dershowitz outside his home in Miami Beach, Florida
(photo credit: ANDREW INNERARITY / REUTERS)

US defense lawyer Alan Dershowitz, who has been vocally supportive of Benjamin Netanyahu against public corruption charges and remained close to the presumed incoming prime minister over the years, told The Jerusalem Post on Thursday that Netanyahu should back off from a plan to override the Supreme Court.

The interview is one of a series in a clear public campaign by Dershowitz to convince Netanyahu how to handle the issue.

Although many different versions of what the plan might be have been floated in the media, the common denominator would be somehow reordering the country’s separation of powers to favor the Knesset over the Supreme Court much more than the way the law stands today.

The means to achieve this would be to make it easier for the Knesset to override any ruling by the Supreme Court declaring a Knesset law or government policy unconstitutional.

Regarding these plans, Dershowitz said: “I am warning against and criticizing efforts to weaken the Supreme Court and [efforts to weaken] the power of the Supreme Court to strike down legislation which violates [preexisting] laws and fundamental liberties.

 THE HIGH Court of Justice has been a paper tiger in everything concerning the Netanyahu bloc’s interests, says the writer (credit: YONATAN SINDEL/FLASH90) THE HIGH Court of Justice has been a paper tiger in everything concerning the Netanyahu bloc’s interests, says the writer (credit: YONATAN SINDEL/FLASH90)

“The Supreme Court is a very positive institution – for Israel and internationally,” he said.

He discussed how there are critics of the Israeli Supreme Court among human rights NGOs, and even more so during this time period from the political right-wing.

Comparing the current political hostility to the Supreme Court by some in Israel to the situation in the US, he stated that “In America, the Right used to be strongly against the Supreme Court” over its undoing of segregation and endorsing abortion as a constitutional right.

However, he said, “Now the Left is against the Supreme Court and wants to ‘pack’ the Supreme Court.” “Packing” is the idea of politicians appointing many new like-minded Supreme Court justices or forcing justices they disagree with to retire.

“In the US, there are attempts by the Left to weaken the Supreme Court, to pack the court, to limit its jurisdiction. Some academics have said to ignore the court. There used to be attacks by the Right, by white supremacist organizations” on the Supreme Court, whereas “today Israel is the mirror image,” he said.

“The Supreme Court, generally, institutionally is not going to be Left or Right: It is going to apply the law,” Dershowitz said. “Sometimes this helps the Left and sometimes this helps the Right.”

Warning Israel’s right-wing, which is currently leading efforts to create a Knesset override of the Supreme Court, he said” “Be careful what you wish for; you may end up hurting rights and values the Right supports.

“Nobody is ever happy with any Supreme Court; it always moves toward one side or the other,” he said, adding, however, that what brings “stability is to apply the law.”

Complimenting Israel’s Supreme Court, he said that “no country has higher level compliance with the rule of law, in large part because of the Supreme Court. That works well in particular in international criminal tribunals. They know that Israel is a country in which the rule of law applies, often made by the Supreme Court.”

In contrast, passing an override of the court “would hurt Israel in the international judicial community, if the [international] community feels it [Israel] weakened the extraordinarily effective [Israeli] Supreme Court.”

Asked what a tolerable or compromise override of the Supreme Court might look like, Dershowitz said: “Some reform is always desirable to adapt old institutions to new realities,” showing a willingness to consider votes of a “supermajority” of the Knesset to override the court on some issues.

With 120 members, supermajority numbers that have been discussed as acceptable by academics or judges have included votes of 65, 70 or 80, so long as some part of the opposition joins a governing coalition. In contrast, the rumored plans to override the court mention a mere 61 simple majority of votes or even smaller ones – such as a majority of legislators present assuming some minimum number – as long as there is a bare majority.

Besides favoring a supermajority, Dershowitz said that “it would also be better to say there is no override on basic human rights, civil liberties and basic laws. On the gas deal with Lebanon or making settlers leave Gaza: These are issues that are a mixture of politics and legislation, [so] there would be more of a basis for overriding” the Supreme Court, “than for issues which directly and dramatically affect basic human rights.

“They would never do it, but if they said [i.e. passed a Knesset law that] gays don’t have basic legal rights to be together and the Supreme Court struck that down because it [such a theoretical Knesset law] strikes down notions of equality – I would not allow an override without a very strong supermajority – or would not allow an override at all,” he said: “My preference would be no override.”

Pressed about the coalition’s plans to pass a new law to remove some of the limits against certain persons convicted of minor crimes serving as ministers – in order to allow Shas Party leader Arye Deri to serve as a minister – Dershowitz divided his response into two parts.

“I take no position on Arye Deri,” he said. “I don’t know about the case.”

“However, regarding whether the Knesset should be able to amend the law to make Deri eligible and override the Supreme Court if the court tries to block that amendment,” he said, “issues of that kind should perhaps be subject to an override because it doesn’t involve the basic function of civil liberties, but the right of a person to serve in the government. It is much more suitable for legislation than for judicial review.”

Continuing, he said regarding the concept of “Who is a Jew – that is going to be extremely complicated. The Law of Return. That obviously involves religion, legislation, equality – and a range of issues; it is extraordinarily complicated as a matter of policy. I am not talking as a lawyer, but as a Jew.

“The state – the government – should make decisions about who is a Jew based on secular democracy policy considerations – and different than the way the rabbinate makes halachic determinations,” Dershowitz said. “The two are different. Hitler didn’t follow Halacha [Jewish Law]. The Law of Return was passed in part in reaction to the unwillingness [of other countries] to take in Jews in grave danger. History has to be taken into account; it does have a vote, but not a veto. Religion [also] has a vote, but not a veto,” he said.

Questioned about how Netanyahu has responded to his advice, Dershowitz said that “he welcomed the fact that I was analyzing the issue in the way I analyzed it. He urged me to continue to say what I believed. He is a man who has always tried to achieve a balance. He is not an extremist.” Dershowitz thinks that Netanyahu is still open to alternatives.

“People in his cabinet might legitimately be called extremists,” he said, stating that he had spoken to Religious Zionist Party MKs Bezalel Smotrich and Itamar Ben-Gvir, who listened very politely, “but I don’t think they think accepted my view.”

According to Dershowitz, “Netanyahu over the years has always been a defender of the Supreme Court… But he is trying to form a government.

“I don’t think his personal concerns should influence institutional decisions… I have a lot of faith in him trying to achieve the balance,” he said regarding concerns that Netanyahu’s own personal legal troubles could influence his handling of the courts.

Honing in on the damage he thought reducing the Supreme Court’s powers could have on Israel’s position before the International Criminal Court, he said that “the ICC does not have jurisdiction over Israel for a number of reasons. Israel did not sign on to the convention. Israel, even if it adopts all the changes [to the Supreme Court] which I disagree with, would still satisfy the criteria for complementarity [– that the ICC can only step in if a country does not probe allegations against its people]. The Israeli judiciary would still be among the best in the world.

“It would take an incredible double standard to bring Israel in front of the ICC in the face of how many countries have done things so much worse, not having been brought in front of the ICC. If you ranked legal systems regarding basic human rights, Israel is in the top 1%,” said Dershowitz.

He said that bringing Israel before the ICC “would have a much greater impact on the credibility of the ICC than [on] the credibility of Israel… The idea that Israel has been singled out by the BDS movement and by the ICJ [International Court of Justice] just shows that Israel is being subjected to a double standard.”

“If Israel were to adopt these changes, it would weaken these positions in the international community,” he said. “I will have more [legal] weapons to fight with if the power of the [Israeli] Supreme Court is left intact.”

DERSHOWITZ ALSO had a more personal message that he wanted to share with the Israeli and broader Jewish public.

Dershowitz addresses Epstein scandal

In 2019, Virginia Giuffre, who was a victim of convicted pedophile Jeffrey Epstein, sued Dershowitz alleging that he defamed her when he denied her claims against him regarding the sexual abuse scandal.

Dershowitz filed a counter-defamation claim.

In early November, Giuffre agreed to drop allegations against Dershowitz, stating she “may have made a mistake” when she lumped him into the sexual abuse scandal.

Her statement to the media said that, “I was very young at the time, it was a very stressful and traumatic environment, and Mr. Dershowitz had from the beginning consistently denied these allegations.”

Giuffre continued, “I now recognize I may have made a mistake in identifying Mr. Dershowitz.”

At the time, Dershowitz issued a statement that “I am gratified that Virginia Giuffre has dropped all of her claims against me and has admitted that she now recognizes she may have made a mistake in identifying me.”

A joint statement from Giuffre and Dershowitz said that “the resolution does not involve the payment of any money by anyone or anything else.”

Dershowitz told the Post that the scandal had not only harmed him and his family, but that, “I would like to defend Israel full-time on campuses around the world and in international tribunals… It limited my ability to defend Israel. I hope that will no longer be the case.”

Dershowitz rattled off a number of prominent venues that no longer accept him for speaking events and which have yet to invite him back, hoping that the news from early November will reverse the situation.

He urged people to read his book: Guilt By Accusation: The challenge of proving innocence in the age of #MeToo, which also has a corresponding edition in Hebrew, to understand the full background and to make up their own minds.