Democracy as a form of government is essentially a modern phenomenon. The United States is the first (and oldest) of modern democracies. Its experience can shed light on Israel’s present crisis over democracy.
America’s Founding Fathers were worried whether the people’s choice would be a stable foundation for governing. Also, they felt that government overreach was a great danger. Therefore, they put many features in the political system to limit majority rule.
The limits to majority rule
Majority rule – like all good ideas – has limits. Unchecked majority governments can become out of control, abusive and even despotic. Therefore, they built in checks and balances to assure that democracy, human dignity and justice would go hand in hand.
A Bill of Rights was entered into the Constitution because minority and individual rights are as essential in a democracy as majority rule. Citizens’ equality requires a “government of laws [not men]” so that all will be bound by the same laws and all will be equal before the law.
The Constitution was adopted so that all laws and officials would be bound to honor these basic rules in their legislation and policies.
To make sure that the laws were fairly applied and enforced, an independent judiciary was established. The judges were not elected – so they would balance the partisanship of elected officials. They would be professionally committed to interpret and enforce the laws to be fair and equal in applying them to everybody.
To offset that unelected judges check majority rule, major national judges (including Supreme Court justices) were required to be approved by a majority of the Senate consisting of elected officials. Supreme Court judges were appointed for life to reduce political pressures and influence that might distort justice.
Other balances included setting up an independent executive (=presidential), legislative (=Congress) and judicial branches which limited each other. The president could veto congressional Laws but the veto could be overridden by a super majority (=two-thirds) vote of the Congress. Political and economic control was divided between the federal (national) and state governments.
Originally, the Supreme Court was not given the power to review laws and administrative practices. But in 1803, only a decade plus after the Constitution was ratified, then-Chief Justice John Marshall took the logical step of saying that the Supreme Court should be the upholder of the Constitution and protector of human rights. He ruled that a certain administrative process was null and void because it was unconstitutional.
There was grumbling, especially because Marshall was not a member of the majority party of president Jefferson, but the ruling stuck and became the norm for the rest of American history. The Bill of Rights (=10 amendments to the Constitution) and judicial review came to be the chief protections of individuals and minorities and the key limits on government power.
ONE SHOULD not exaggerate the role of the Supreme Court. It generally can go only a little ahead of popular opinion. A conservative Supreme Court blocked Franklin D. Roosevelt’s liberal New Deal laws until – under pressure – they approved some of them.
In 1896, the Supreme Court upheld racial segregation. Only in 1954, did it outlaw segregation. In World War II, the court allowed Roosevelt to lock up thousands of Japanese Americans in internment camps. In 2018, it condemned that internment as “gravely wrong.” In 1973, the court ruled that abortion was a constitutional right. In 2022, a Supreme Court packed by former president Donald Trump with conservative jurists repealed the right to abortion. (Support for the court and respect for its decisions plummeted.)
What Israel can learn
What can Israel learn from the American experience to deal with its present crisis over judicial reform?
Israel has no constitution. This should be corrected by appointing a constitutional convention to draw up a constitution that can be accepted by the whole population. This would have to be done when the present crisis is over. (Given the present intense polarization, it may be impossible to write a constitution acceptable to a large majority of the population.)
Israel’s democracy has many fewer balances than the United States. The central government power is not divided with local authorities. There is no second legislative house (the Senate and the House of Representatives) and no independent executive branch which can limit the Knesset.
Therefore, the Supreme Court is disproportionately influential in checking the government’s power and protecting minority rights. The present attempt to end its review power and control its makeup is a real threat to democracy. This calls for extraordinary opposition by the masses as well as by new coalition parties.
In the absence of a constitution, the fundamental democratic norms and processes are legislated as Basic Laws. The consensus around these is the widespread, nonpartisan agreement that Israel should be both a Jewish and a democratic state.
In 1992, the Knesset passed a Basic Law of Human Dignity and Liberty. By now, there are 11 Basic Laws including the most recent one defining Israel as “the national land of the Jewish people.”
The weakness of a Basic Law is that each is adapted by parliamentary majority that requires the same number of votes as those of regular bills, a simple majority of 61 votes out of 120. Basic Laws should require a special majority – to give them the gravitas of a constitution adopted by a wide consensus of the people/voters.
In light of the American experience, Supreme Court president Aharon Barak’s move to declare laws invalid if they violate the norms of Basic Laws can not be dismissed as revolutionary seizure of power. Some institution has to have the authority to declare laws that violate these basic norms as invalid.
In fact, most of the Supreme Court decisions that aroused the ire of coalition parties have involved blocking unequal treatment of populations (such as exempting all haredim from the draft or denying state support for liberal denominations’ rabbinic leaders) or insisting that Jewish settlements are illegal when they are built on privately owned Palestinian lands.
IN THE recent ruling that Arye Deri was unfit to serve as a minister after being thrice convicted of accepting bribes and tax evasion, 67% of all Israelis agreed that Deri was unfit. The Court was accused by political partisans of favoritism or discrimination against Mizrachim. All it was saying was that being convicted of corruption has a consequence. All such criminals are equally disbarred before the law.
The governing coalition rightfully insists that the electorate’s votes should have some weight. The voters have validated their right to pass some judicial reform.
However, the Levin and Rothman proposals destroy the court’s review power. Any 61 MK majority coalition can pass any law, however undemocratic, and can then overrule the Court’s nullification of the law with the same narrow majority.
A reform proposal with integrity would require 65 to 70 votes to override the Supreme Court with the premise that at least 5 (or 10) votes must come from the opposition. This number would win a reasonable national consensus in upholding any law. There is room here for a compromise to reestablish a national consensus and unity.
Some increased representation of political parties on the Supreme Court selection committee may be a legitimate demand of a coalition majority. But giving control of the process to politicians undermines the independence of the judiciary. It is no wonder that investors and credit rating organizations are threatening to pull back or downgrade Israel.
Only an independent judiciary can assure investors that business differences can be litigated fairly. Only an independent judiciary will guard the IDF and Israel from unfair International Court of Justice intervention.
Alliance building is necessary
Since democracies need compromises and consensus building in order to function, there is an unwritten norm that drastic policy changes are not adopted hastily and without alliance building to satisfy a broad public, not just a narrow temporary political majority. To obtain a fair and trusted reform, we need a special (maybe presidential) commission to be appointed and work out a reform acceptable to a broad swath of Israeli voters.
This would strengthen Israel’s democratic culture. But political destruction under cover of reform is an assault on democracy. The opposition – parties as well as the masses – must combine intense opposition with restraint in language and tactics. Everyone must avoid violent threats, or civil war and Nazi analogies while firmly pushing for a nonpartisan outcome.
The rush to pass this legislation and the refusal to create a framework for broad agreement on a genuine reform, signals undemocratic goals. It gives color to the opposition’s charge that the real object is to neuter the judiciary and attorney general in order to save Netanyahu from his trial (and Deri from his past convictions).
The public must keep up the pressure. Some statesmen in the Likud must step forward to stop the rush to false judgment and a wrecked judicial system.
The Arab parties should be recruited to declare that they are all in for accepting the Jewish state but declaring that they will fight hard for equal treatment for minorities. Opposition leaders should offer a positive program of responsible legal reform, increased effort to find diverse judges while protecting a balanced democracy.
This crisis should be turned into a moment of renewed unity and rebirth of democracy.
The writer is an American oleh. In the US, he was a leader in the modern Orthodox rabbinate and in the work of linking American Jewry and Israel. He was the founding president of the Jewish Life Network/Steinhardt Foundation, which led the creation of Birthright Israel.