JERUSALEM — About two weeks ago, on the eve of Passover, Israel’s Justice Minister, Yaakov Neeman, dropped a policy bomb. He proposed a bill that would allow a small majority of legislators in the Knesset to reinstate laws struck down by the Supreme Court.
With that, he ignited a fiery debate over the balance of power between the legislative and judicial branches in Israel. Liberals here have long seen the high court as the ultimate guardian of the country’s democratic values. But many policymakers, and large segments of the public as well, increasingly worry that the court is making policy instead of reviewing law, and promoting a liberal agenda at odds with the views of the majority.
Israel does not have a constitution, and so the Supreme Court invokes the country’s 14 Basic Laws when it assesses the validity of other legislation. In any democracy, the exercise of judicial review can be awkward, but in Israel, where there’s still some uncertainty about whether the Basic Laws trump ordinary laws, the Supreme Court and the Knesset have even more reason to be in fierce opposition.
Legislators of different stripes have seasonally criticized the high court for “overstepping its role.” After legislators tried to tamper with the court’s business last year — fiddling with the rules to elect a chief justice or requiring the judges to undergo confirmation hearings — Dorit Brinish, the outgoing Supreme Court president, accused legislators of waging a campaign of “deceit, poison and incitement” against the legal system.
Then came Neeman, the controversial justice minister, a man of the conservative right, shrewd and secretive, with a long and rocky history with Israel’s legal elites. On April 5, exactly 24 hours before the weeklong vacation for Passover, without explaining why and why now, he proposed a 15th Basic Law to curb all Basic Laws.
A heated debate erupted as soon as the holiday was over, even though it was — and still is— unclear whether the bill would strengthen the court or the Knesset.
On the one hand, Neeman’s bill allows 65 of the Knesset’s 120 members to bypass any Supreme Court decision and keep the offending legislation alive for five years. On the other hand, the proposal formally recognizes the Supreme Court’s right to strike down any legislation that’s incompatible with the Basic Laws, a power not yet officially endorsed by the legislative branch. This, the law professor Ariel Bender told me Sunday, basically “adds up to recognizing that Israel does have a constitution.”
Neeman’s law seems to have made almost everyone unhappy. Many Israelis on the left think it weakens the Supreme Court, which can only weaken democracy. Many on the right think it doesn’t give legislators enough power and, worse, legitimizes a dangerous process by which unelected judges can unmake law.
It’s a crossfire of suspicions. There’s the suspicion that Knesset members might run wild with this new permit to override the Supreme Court’s decisions. And there’s the suspicion that if the court’s power isn’t curbed, Israel will slide into “anarchy,” as Neeman warned in the Knesset on Wednesday.
Yet the hoopla hardly seems warranted. The Supreme Court has been very careful not to make a habit of striking down laws: since 1995, it has done so fewer than a dozen times. And though legislators often threaten to circumvent Supreme Court decisions by making new laws, little has materialized beyond sharply worded press releases.
Neeman’s law isn’t as radical, or problematic, as it seems. And it’s unlikely to much change relations between the Supreme Court and the Knesset. Those will remain tense and touchy — exactly as they should be in any vigorous democracy.
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