THE ONE THING THE ISRAELI rIGHT GETS RIGHT:

Allison Kaplan Sommer of Haaretz, among Israel's most respected publications, interviewed Brookings Institution's Benjamin Wittes, one of America's leading legal experts, for his views on the proposal. It is a genuinely thoughtful and informative conversation comparing and contrasting the Israeli and the U.S. judicial systems that elucidates just how much these reforms will weaken a longstanding and vital check on the Israeli government's power and erode Israel's standing abroad. [...]

Allison: In the 2019 interview, Ben, I will quote you as describing the Israeli system as being "super weird." I don't know if that's a technical legal term.

Benjamin: Yes. Let's pinpoint two aspects of the weirdness. One is the one that everybody talks about, which is that there is no written constitution and so all of the constitutional arrangements are amendable by the Knesset with a mere majority vote. Here I don't mean a 61-vote majority like the proposed override, but a majority of whoever happens to be present can change a basic law. If you think about that in contrast to say the United States, it's when the Supreme Court of the United States makes a First Amendment ruling, it would require a constitutional amendment to change it. That requires 2/3 of both houses and then 3/4 of state ratification.

It's a dramatically difficult thing to amend the US Constitution. By contrast, to amend the Israeli non-constitution is a relatively trivial matter and happens all the time. On the other hand, and this is the vulnerability and this is the feature, the weirdness that people don't talk about the Israeli Supreme Court with respect to as much, it is a uniquely powerful institution. It has not just the authority of judicial review, which a lot of countries have a judicial review mechanism. But it is the court of original jurisdiction over any challenge to the lawfulness of government policy with no standing requirements and almost no barriers to adjudication.

You don't like who's been named cabinet minister, you file a petition in the Supreme Court. You don't like the route of the separation barrier, you go straight to the Supreme Court. All of these fights that in other judicial systems would play out in the political process in the first instance, and then only get to court adjudication after years of policymaking, start out with litigation in Israel. I think that puts the court in the firing line of politics in a way that's unusual. I think the court in Israel is more contentious right now even than the court in the United States.

Allison: The court has a huge amount of power, and basically, this proposal wants to take away almost all of its power. We're talking about a zero-sum game here, right?

Benjamin: Right. It has a huge amount of power. The foundation of that power is paper-thin. It's like you've built this giant weapon, which you can think of as, if you hate the court, as an offensive weapon, or you can think of, if you're a defender of the court, as a defensive weapon. It's extremely powerful.   But it's built on a pillar of sand. If you think about it, the court itself is merely a creature of the Knesset. The Knesset could abolish it if it wanted to. It's this very strange interaction between a system of almost pure or maybe pure parliamentary supremacy and a court that reserves for itself and that the political system has allowed it to have these really unusual authorities to intervene in government policy.

Allison: When you've got this growing small but now powerful group of ideologues who visit Washington and meet with the Federalist Society and really have a very strong ideological bent, and they're in a system in which the political echelon is allowed to take away the court's power and now they're in political power, it's inevitable that this is going to be something that is high in their priority list and that they're going to do. It's easy pickings.

Benjamin: I think that's right. I do think the purported marriage with American judicial conservatives is almost entirely fictitious, not in the sense of it hasn't happened, but that it's a lot of legal nonsense. The Israeli legal system is entirely different from the American legal system. To the extent the court has behaved this way, it has behaved this way with Knesset's tolerance over a long period of time.

Whereas the US Congress, the states that the US Supreme Court has sometimes been imperious towards, they don't really consent to the court's engagement with them that way.

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