On January 1, 2024, for the first time in the 76-year history of the State of Israel—and while Israel was fighting a seven-front war in the wake of Hamas’s barbaric attack two months earlier—all 15 of Israel’s supreme-court justices decided a case together. Whereas our American justices generally sit en banc (i.e., all together), the Israeli supreme court mainly hears cases in panels of three. Sometimes, if a case is uniquely complex, the chief justice will assign the case to a panel of five, seven, or even nine justices. But this January 2024 case—often called the “reasonableness” case—was different. As Yonatan Green explains in Rogue Justice, his masterful work on the history of the Israeli supreme court, the “reasonableness” case split the court on one of the crucial questions at the heart of most modern democracies: To what extent should an unelected judge wield the power to invalidate the will of the people as expressed through the acts of their duly elected representatives?
That’s a question we in the United States have been grappling with since at least 1803, when Chief Justice Marshall, writing for the Supreme Court in Marbury v. Madison, read into the U.S. Constitution the power of “judicial review”—the power of federal judges to declare the acts of the elected branches unconstitutional. In America, we’ve come to accept this exercise of seemingly antidemocratic judicial power because we’ve restrained it in two main ways. First, our federal judges are appointed by the two elected branches of government: Every federal judge is nominated by the president and confirmed by the Senate. Second, our judges may strike down legislation only when that legislation violates a provision of our written Constitution, which binds future generations of legislators because it was passed by supermajorities of delegates elected specifically for the purpose of promulgating a constitution. In large part for these two reasons, we’ve come to see the work of our judges not as antidemocratic, but as super-democratic, enforcing the enduring will of super-majoritarian conventions against the ephemeral whims of simple modern majorities.
But, as Green explains, Israel may be the only democracy whose judges exercise the power of judicial review without these restraints. Of course, not all democracies need these restraints because not all democracies empower judges to declare laws unconstitutional. The UK, for instance, like most parliamentary democracies, operates under a system of “parliamentary sovereignty,” in which the acts of Parliament are the supreme law of the land and are therefore not subject to judicial review. As Green observes, Israel at its founding—as a former British colony—inherited this British concept of “parliamentary sovereignty” and didn’t really allow for judicial invalidation of parliamentary laws until 1995.
That’s when Israel adopted the American system of judicial review. But in doing so, it did not impose either of the principal American constraints on judicial power. As Green points out, Israeli judges (including supreme-court justices) aren’t appointed by the political branches. They’re selected by a committee of nine members—five of whom are either sitting supreme-court justices or members of the Israeli bar. Because these bar lawyers have powerful incentives to fall in line with the supreme court, they (unsurprisingly) often vote with the justices—giving the justices an effective majority on all judicial appointments. And because the law requires a seven-vote supermajority for the selection of supreme-court justices, the three justices on the selection committee can always veto any pick they don’t like. In this way, Green contends, Israel’s judicial-selection system allows the sitting justices to handpick their own successors—thereby securing a future in which the next generation of justices share the current justices’ judicial philosophy. Citing a 2021 study of judicial-appointment procedures in all OECD member states, Green observes that this model makes “Israel an extreme outlier.” Indeed, “of all the jurisdictions reviewed [in the study], only Israel and five others don’t place top judicial selection in the hands of elected officials. Of these five, two (the UK and Luxembourg) don’t empower courts to strike down laws, and one (Turkey) is not defined as a democracy.” In other words, Israel is one of only three developed democracies that, on the one hand, authorizes its unelected judges to say what the law is and, on the other, prevents the elected branches from exercising meaningful authority over the selection of those judges.
No less significantly, starting in the 1980s, the Israeli supreme court invented a method of statutory interpretation, called Objective Purposive Interpretation (OPI), that allows judges to ignore both the text of a statute and the subjective intent of the legislators when, in the judges’ view, that text and subjective purpose conflict with an objective purpose the judges have conjured out of thin air. As OPI’s primary expositor, former Chief Justice Aharon Barak, once explained, “The words of the statute are not fortresses to be conquered using dictionaries, but rather a wrapper for a living idea, one that changes according to the circumstances of time and place, in order to fulfill the fundamental purpose of the law.” In Barak’s view, OPI authorizes unelected judges to interpret laws in ways that promote a “fundamental modern societal” purpose, even “when it is clear that the legislature could not possibly have intended such a purpose.” This a-textual judicial philosophy once led Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit to quip that the Israeli Supreme Court treats statutes “as first drafts that the court is free to rewrite.”
But it’s one thing for judges to twist the laws’ meaning to suit their own political objectives; it’s another for them to invalidate those laws as unconstitutional when they have no written constitution to lean on. As Green explains, Israel’s 1948 Declaration of Independence empowered the first parliament to draft a constitution. One day after declaring its independence, though, Israel was invaded by the surrounding Arab states, prompting an existential war that led the first constituent assembly to dissolve without promulgating a constitution. Subsequent parliaments elided this constitutional vacuum by passing what they called “Basic Laws”—laws promulgated by regular majorities that, one day, could be combined into a cohesive, written constitution. So there are Basic Laws about the judiciary and Basic Laws about the Israeli parliament, etc.—but not until 1995 did the supreme court declare that these Basic Laws had suddenly become the supreme law of the land, fundamental enough to empower the justices to use them to invalidate legislation.
This is the silent revolution Chief Justice Barak wrought in the 1995 Hamizrachi case, which interpreted two Basic Laws passed without much fanfare in 1992 by a caretaker government (a government whose ruling coalition had dissolved) in the lead-up to regular elections. Green notes that, although these two Basic Laws had been voted on by tiny fractions of the Knesset’s members (with most Knesset members away on campaign), and despite the fact that neither the public nor the Basic Laws’ proponents understood those laws as ratifying a national constitution, Barak declared in Hamizrachi that the 1992 Basic Laws had completed the constitution-making process that the first parliament had started in 1948.
Over the ensuing decades, as Green details, the court used the Hamizrachi precedent to strike down dozens of pieces of legislation. The court also read into this mostly unwritten constitution the power to invalidate government actions that the justices deemed “unreasonable”—an arrogation of political power that, in Green’s view, subjected the will of elected majorities to the caprices of unelected lawyers-in-robes.
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By 2022, though, the gig was up. The newly formed governing coalition led by the returning Benjamin Netanyahu promised to reform the supreme court. In Hamizrachi, the court had empowered the Knesset to pass constitutional legislation. If the parliament had that authority, the new government thought, why not use it to curtail the supreme court’s power? That, after all, is what most constitutions—including the U.S. Constitution—already do. So, in July 2023, the Knesset passed “Amendment 3 to Basic Law: The Judiciary,” which prevented Israel’s judges from “hear[ing] a case concerning the reasonableness of a decision made by the Government” or its ministers.
Which brings us back to the “reasonableness” case of 2024, in which the court struck down this amendment—confirming, in Green’s estimation, that the court had authorized the Knesset to pass constitutional legislation only when that legislation comported with the court’s political worldview. In other words, Green says, the Israeli constitution exists only in the minds of its judges—who can ignore it, shape it, and resuscitate it to meet whatever political objectives the court deems reasonable, fair, or just. That’s all well and good—but, Green argues, it isn’t very democratic.
As I read Rogue Justice, I couldn’t help but think of our own American exercise in constitution-making—conceiving as it did a constitution that has endured for two centuries not just because of the prescience of its substantive formulations, but also because of the process of compromise it engendered. So I was happy to see that, for Green, an American-style constitutional convention may be the only solution to what he sees as Israel’s impending constitutional crisis: “Israel,” he writes, “must do what it neglected to do in 1948 and has neglected to do ever since. It must undergo the ordered and disciplined process of vesting a dedicated institution with constitutional power, and of finally formulating constitutional rules in the universally recognized by-the-book manner.” This would include the creation of a “distinct institution established solely for the task of drafting and enacting a constitution,” approval by popular supermajorities, and ratification by a supermajority of the Knesset.
This won’t be easy. But, as Green acknowledges, Israel, “a tiny embattled country surrounded by enemies,” faces “genuine existential threats” and doesn’t “have the luxury of drifting aimlessly with a leaky hull in the hope that things will work themselves out before the ship sinks.” In the end, as Green notes, “Israel’s uniquely precarious geostrategic reality requires constant military readiness (and sacrifice), which in turn relies on a high degree of civic commitment”—a commitment that cannot “persist if the people do not retain actual ultimate authority over their own government.” In Green’s view, then, “judicial supremacy doesn’t only undermine democracy and the rule of law; in Israel, it erodes the State’s existential foundation and gambles with” the promise of the Jewish state’s national anthem (“Hatikvah”), which envisions Israel as the one place where, for the first time in 2,000 years, Jews might again live as “a free people in our own land.”
Photo: israeltourism/Wikimedia
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