Israel's Judges

with Yonatan Green,
hosted by Rebecca Burgess

Yonatan Green joins host Rebecca Burgess to discuss Israel’s legal system and the reform proposals that have been generating controversy in 2023.

Brian Smith:

Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org and thank you for listening.

Rebecca Burgess:

Hello and welcome to Liberty Law Talk. My name is Rebecca Burgess. It’s my joy to be a contributing editor at Law & Liberty and a visiting fellow at the Independent Women’s Forum. Students and professors of natural law theories are familiar with the sobering refrain from the book of Judges. In those days, there was no king in Israel and every man did what was right in his own eyes as an encapsulation of the chaoticness and unsteady character of politics and society at that time in Ancient Israel. Of course, in modern Israel, there is no king by design, but it also has no constitution to be the king or governor of the country’s law, a parliamentary democracy. Israel has held five elections in the past four years since last November’s election and Netanyahu’s return as Prime Minister, there has been a definite chaoticness to Israeli political life.

Beginning this January, not only have there been almost daily protests, but 10,000 reservists in the Israeli Defense Force have even suspended their volunteer duty. The triggering cause, judicial reforms proposed by the Netanyahu government. Many across the West, including in America, including even Secretary of State, Antony Blinken and President Biden, have essentially said these reforms are undemocratic, that the fate of democracy in Israel is at stake. We’re entering the 29th week of protests this week, and the Knesset voted in favor of a first series of proposed reforms. But the other side of the story is that the opposition simply walked out and cast no vote. So because law complicated by politics is always a heady subject, and the Israeli judicial and political system so complex and foreign to Americans who mistakenly assume it is similar to the American system we have today joining us from Israel, Yonatan Green, an Israeli legal scholar and the executive director of the Israel Law and Liberty Forum. Before welcoming him, I should clarify that the Israel Law and Liberty Forum is actually not affiliated with Law & Liberty, but is an independent project. But with that said, welcome, Jonathan.

Yonatan Green:

Well, thank you very, very much, Rebecca for having me and for that introduction.

Rebecca Burgess:

So the great Jewish philosopher of the 12th century, Moses Maimonides asked, “How long is it a duty to study the law?” And his answer was, “To the day of death.” Modern Israeli law and the modern Israeli judicial system are certainly complex enough for us to spend all of our waking moments examining and probing them. While the intensity of the protests about judicial reforms in Israel caught many, if not everyone in America off guard, those in the know in the legal profession in Israel have long seen a crisis coming from perhaps as far back as the 1980s, if not, from the founding of Israel in 1948. So before we get to today’s protests, what’s at stake with the reforms and what the Knesset just voted on, can you tell us a bit about your organization, the Israel Law and Liberty Forum? You’ve described it to me a bit like a Federalist Society for Israel. Why has Israel needed such an organization?

Yonatan Green:

Wonderful. Well, thank you very, very much. I will put on my hat as executive director of the Israel Law and Liberty Forum to answer your question. And then after that, I think I will remove it and opine as just an Israeli attorney and Israeli legal scholar. I should also say, as a sort of type of full disclosure, I am very soon to step down for my role as executive director of the Israel Law and Liberty Forum, which I’ve very happily done for the past and proudly done for the past four years. And that’s because this fall I will become a fellow at the Center for the Constitution at Georgetown University in Washington DC, some good and exciting news and also new and exciting changes also for the Israel Law and Liberty Forum, which are of course continuing full steam. It’s not like they don’t have what to do right now in Israel.

So you asked why has Israel needed such an organization? And I think you correctly sort of link the question about our organization and that of the current legal crisis in Israel on a few levels. So our organization, the Israel and Liberty Forum, was founded in 2019 by the Tikvah Fund. And this is obviously well before the more recent storms relating to legal reform in Israel. And we advance a legal conservative worldview in Israel through community and discussion under the four core principles of judicial restraint, separation of powers, individual liberties and limited government. Where the Israeli FedSoc, so to speak, the Israeli Federalist Society in the sense that their community-based and discussion-based model serves as our inspiration. So like the FedSoc, we’re not a think tank. We don’t advocate for specific policies or decisions. We don’t issue policy papers, we don’t participate in legal proceedings, et cetera.

We are like the Federalist Society in the sense that we are building our community of conservative legal scholars and practitioners, and we provide a platform for engaging in serious and sophisticated, thoughtful, conservative legal thought. Today, just to round up the question about our organization today, we have student chapters at Israel’s top law schools. We’re well known throughout the legal community and especially in the academic world. We have an online journal that’s been cited to by the Supreme Court and a whole range of additional projects. I should also say that we’ve been targeted five or six times, I’ve kind of lost count, by the Haaretz newspaper, which is Israel’s leading daily left-wing newspaper with a number of major articles about us. We’re very proud. Why are we needed? So Israel, I’ll say this and I’m sure we’ll get into the details in just a bit, but very generally, Israel has been dealing with a number of fundamental flaws which go to the core of our legal system.

And you mentioned since the 1980s, partially since the founding of the state, and we’ll get to those examples. But at the same time, I should say the Israeli legal establishment and especially the law schools, have been dominated by a fairly uniform and homogenous worldview. And we can call this very generally this sort of activist or judicial supremacist worldview. And this is both in terms of theoretical jurisprudence as well, as well as regarding the specific issues and questions in Israeli law and government. And I could give just some very, very general examples. But if we’re talking about the role of the courts or the role of judiciary, so well, that’s to advance human rights or a particular set of liberal values, right? Sometimes in the teeth or in the face of the political branches. If we’re talking about what is democracy? Well that’s a set of liberal outcomes.

Does Israel have a constitution? Yes, it’s fairly uncomplicated, straightforward answer. How do checks and balances work? Well, it’s mostly the judiciary and the court’s checking and balancing the elected branches of government, et cetera, et cetera. But with regard to these flaws, which again, I’m sure we’ll discuss at some length in a moment, large parts of Israeli academia and the Israeli equal establishment generally just don’t recognize their problematic nature or they’re unwilling to engage with these flaws in a meaningful way. So in law schools around the world, I think you’d expect to see a certain type of variety, even though, yes, in academia there’s often a sort of a tilt towards one direction, whether that’s the left or the liberal direction. That’s something that we see all over the world, but you still see a certain type of variety. And in Israel, this is almost non-existent.

And to be clear, I’m not alleging bad faith for any of these actors. I went to law school, I’m born and raised Israeli, and also went to law school in Israel. And my law professors were excellent. And of course some measure of bad faith probably does exist, but this is really just a numbers game, meaning there’s a very clear division, I would say, within the legal world all over globally, which splits grossly into two camps. And in Israel, legal scholars and academics belong overwhelmingly to one side of that argument, I should say, not just to one side, but really to the sort of fairly extreme version of that side of the argument. If you were to place the weight that the average Israeli constitutional scholar, public law scholar in Israel, they’d be in American terms on this sort of constitutional law spectrum. They’d be somewhere between Laurence Tribe and Ronald Dworkin in terms of their jurisprudence, that probably characterizes a large part of Israeli public law scholars and I mentioned Tribe and Dworkin.

These are two major influences on Chief Justice Aharon Barak, and we’ll get to him in a moment as well. So this intellectual homogeneity has all kinds of implications, right? Legal education in Israel is such that most graduates are exposed to only one side of the legal debate. This is to the extent that they’re often unaware that another approach even exists, let alone that it ought to be considered or that it may have any kind of merit. And this is, I think, where the forum and the crisis converge, meaning in terms of our mission, the forum’s mission of posing some kind of alternative, you end up with this sort of highly simplistic one-sided public discourse surrounding legal issues without the benefit of being enriched by sophisticated, thoughtful debate with more faithful representation of different legal approaches and arguments.

Finally, this is a very long answer to your very straightforward question, the Israel Law and Liberty Forum is needed to provide both, I would say, safe haven for legal conservatives who don’t align with Israel legal orthodoxy, but is also needed to offer an intellectual alternative to the way law is taught, practiced, and thought about in Israel. And of course, this is in a respectful, serious, enriching, in-depth, professional way, et cetera. So that’s a answer your question very broadly.

Rebecca Burgess:

It just made me wonder, for the first time ever, how many law schools are there in Israel? I’ve never really thought about that before.

Yonatan Green:

I think on my last count there were about 13 law schools. They do sometimes open, close and sort of at a rapid pace. So there is maybe four or five, maybe six, depends how you count very good law schools, which are considered the best. Maybe the top two law schools would probably be Hebrew University and Tel Aviv University law schools, even though there are a few close thirds behind them. Yeah, Israel has a very, very large amount of lawyers. Probably some people claim that they have the most lawyers per capita than any western country. I don’t know if that’s true, but the last time I checked the number was around 172, meaning one lawyer per 172 citizens, and some have claimed in the Tel Aviv area, it’s 1.1 per 36. Again, I have not checked this. I don’t know if this is accurate, but Israel is a fairly litigious society and it has a great many lawyers.

Rebecca Burgess:

Got it. So Israel and Israeli politicians especially insist on referring to Israel as both a Jewish state and a democracy. Secondly, famously of course Israel does have a set of basic laws or basic law, but it has no constitution. And thirdly, Israel is a parliamentary democracy that uses an election system to the Knesset that renders majority government almost unheard of, and any government very difficult to hold together. So almost every government doesn’t quite come to term. It seems to me that these three things have all had a hand in creating today’s judicial crisis. There’s a history, there’s religion versus secularism, and there’s electoral politics. What is the there there that’s behind the current judicial crisis?

Yonatan Green:

Absolutely, Rebecca, first of all, you correctly, I think, identify some of the main contributing factors that make, I mean, forget the current judicial crisis, but just to make Israel highly sort of complicated and a volatile place in terms of its politics, in terms of its sort of social cohesion and other issues and prone to convulsions of different types. This is even sort of broadly about Israeli society and Israel’s system of government. And of course, we could point out a few others such as sort of ethnic or generational division lines. Obviously, the security situation and the Arab-Israeli conflict and all these other… There’s so many ingredients that added to this mix. But I think you definitely pointed to the main three. However, I do want to add one critical element to this mix when we’re talking about the current crisis in Israel. We are talking about a… You asked about what created this judicial crisis, and the missing ingredient here is the judicial revolution of the Chief Justice Aharon Barak led supreme court of the 1980s and the 1990s and after.

And in many senses, I think this ought to be characterized as a judicially created crisis. And I’ll elaborate on that a little bit. I kind of want to kick that off with a quote. This is a quote that I like from 1996. This is from one of Israel’s foremost legal scholars, one of its greatest legal minds. This is chief justice of the Supreme Court Moshe Landau. This is retired chief justice of the Supreme Court, Moshe Landau. This was a speech that he gave after the landmark 1995 United Mizrahi Bank v. Migdal ruling, which we’ll get to in a minute. But that’s a ruling that recognized that Israel had a constitution and that ruled that the court had the power of judicial review over legislation, et cetera. And this is a quote from a speech that he gave, which was then published as a paper and a law of review.

He said, “I tire of warning the reviewing the legitimacy of Knesset laws will inevitably drag the court into the arena of political controversies. This may cause…” And sorry, this is a rough translation. I continue to quote, “This may cause dangerous damage to the general public trust, which is the basis of the solid stature the court enjoys today. The call to expand the court’s authority deriving from the same complete trust may turn into a bear hug for the court itself. Exalting…” This is the last sentence. “Exalting the court’s power as a senior legislative partner will encourage the call for changes in the judicial selection process in order to turn the Supreme Court into a pseudo mini Knesset.” I ended the quote there. He has many, many wonderful sentences there where it’s a scathing attack on this very recent ruling. And that in itself is extremely unusual for a retired Supreme Court chief justice to come out so bluntly against the ruling.

And that gives you sort of a hint about how this ruling was received at the time. But the reason I’m saying this is because this was, in many senses, this crisis is something that was in many ways, I think both forced and foreseeable, meaning even those in the 1980s and 1990s who identified what was happening in the Israeli Supreme Court knew to warn what the likely result would be. And I think in many senses, at least in some senses, we’re seeing some of those results today. So to give a little bit more context or a little bit more background about why I think that is, you mentioned, right, 1948 Israel’s founding, Israel did not enact a constitution when it was founded. We can get into the background about that a little bit later. But from 1948 until the 1990s, Israel was a UK style parliamentary democracy with legislative supremacy.

And I like to say wars and all, that has its benefits, it has its drawbacks. This is a much debated question. What are the benefits and disadvantages of a UK style parliamentary democracy with legislative supremacy, et cetera. However, I should say the three elements that you mentioned, right? Israel as a Jewish democratic state and Israel has no constitution and it’s highly unstable system of government in terms of its proportional representation and a coalition based government, et cetera. These had their drawbacks, but they also had benefits. In many senses, these characteristics of Israeli political life balanced each other out. So an unstable coalition government made it difficult for any side to Lord it over the other side and to make all these sort of radical gains. This was an inherent check on government power. It still is in many ways. A political constitution, I like to call it a political constitution, you might call it an unwritten or an uncodified constitution.

I think a political constitution is a better way to characterize it. But a political constitution for Israel meant more flexibility and agility and more ability for compromise and more creative and sometimes inelegant and unsavory solutions. And in many ways, these things worked together. So if you had these major division lines in Israeli society, if you had these fundamental disagreements about core issues, these were features of Israeli society and the Israeli system of government that served stability, that served longevity in that sense. And for these first 40 or 50 years, the Israeli Supreme Court was initially fairly self-restrained, right? I can give some examples, right? The court generally refused to adjudicate the legality of laws except for some very, very, very tiny examples where laws were struck down on procedural issues, not on sort of substantive issues. So this is throughout the court’s history until the 1990s time.

And again, it said obviously sort of almost stating the obvious, we don’t have a constitution to speak, of course we cannot strike down laws as unconstitutional. I mean, this is almost goes without saying. They dismissed cases which didn’t have standing or cases which were of a patently political nature. They held to a text-based interpretive approach for statutory interpretation. They generally, I should say broadly, they generally rendered unto Caesar that which is Caesars, right? They said, “We understand our role as the court and we understand the role of the other branches of government,” and all this, all this I should say, while the court remained a firm check on governmental power, they were an extremely assertive court. They felt that they could strike down or stop governmental power when they thought there was an abuse. I say that they were self-restrained because these were not systematic or formal restraints or limitations on their power.

Simply, this was a sort of proactive restraint practice by the judges that court. In the 1980s, starting from the mid 1980s when Justice Aharon Barak entered the Supreme Court and slowly gained more power and influence there, we saw more and more judicial intervention that threw a wedge into all of these different characteristics of the state that actually lent this, like I said, this measure of stability or this measure of longevity, et cetera. One quote that I like here is that is from the United States Judge Richard Posner, of course, who I’m sure many of the listeners here will be familiar with. Most cited legal scholar of the 20th century, here’s a quote from him about the Israeli legal system. He says, “What Barack created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices,” our meaning the US Supreme Court justices.

And this is just me saying this. This is wide agreement that from the ’80s onwards, and I’ll give some examples, but from the ’80s onwards, the Israeli Supreme Court led by Justice Aharon Barak radically changed a number of major elements of Israel’s system of government as well as sort of directly intervening into major political issues.

Rebecca Burgess:

Can I quote back at you a quote from Barak, which I was reading this morning, and I thought, “If any US Supreme Court justice would ever say this, I can’t even imagine what the reaction would be.” So here’s the quote, “The judge of a Supreme Court is not a mirror. He is an artist creating the picture with his or her own hands. He is a legislating, engaging in judicial legislation.” I thought, “Wow-

Yonatan Green:

It’s extraordinary.

Rebecca Burgess:

… that’s an artist.”

Yonatan Green:

Absolutely. He has another wonderful… I mean, we could compile a book, one of those chewed handbooks you have in the bathroom of Aharon Barak quotes, right? And each one more sort of outlandish for the next, but I’m getting ahead of myself, by the way, I didn’t say this and I really should have said this at the beginning of your second question, that I have removed my hat as the executive director of the Israel Law Brief Forum. Everything that I’ve said to this second question in odd words and everything I’m going to say for the rest of this conversation represents only my own positions and does not reflect the positions of the Israel Law Forum. I re-clarify that now. But yes, absolutely. We’ll get in a second, I think that just some of the outlandish nature of some of these opinions held. But I should say, as a sort of side note, if you haven’t, and if you’re interested in the Israeli legal system, go and read the article by Judge Richard Posner called “Enlightened Despot.”

It was published in… It’s short, it’s not like a long-winded article. It’s published in 2007 in the New Republic. And just Google Richard Posner, Enlightened Despot, and you’ll find it, and it’s probably one of the most succinct, straightforward, and really sort of on the mark critiques of Israeli jurisprudence or the Barak and Israeli jurisprudence. In any case, I’m sure we will get into a few examples soon about quite what happened in the ’80s and ’90s and onwards. But to come back to your question, I mean, so just for example, the elements or the characteristics which you mentioned, Israel’s Jewish and democratic identity were in constant flux, and they were constantly negotiated and redefined and understood through the political process, through various deep societal processes, et cetera. And the court in various instances changed this to some simplistic, ad hoc, judicially imposed formula, right?

I mean, Jewish democratic, well, democratic is where it’s kind of whatever I want it to be. And then I’m just going to impose this on society. The lack of a constitution is problematic in some senses and possibly objectionable, but it’s far better than a pretend constitution, than a made up constitution, than pretending that we have a constitution and acting as if we have a constitution when we don’t with all that entails. And of course our unstable parliamentary politics, which were bad enough as they are, as you mentioned, has been sorely exacerbated, meaning the unstable nature of our parliamentary politics has been sorely exacerbated by the disincentives to compromise created by judicial intervention. And I’ll get to that in a second. So I think phrased a little bit differently, the court took many trappings of judicial supremacy, which we see in other countries, and this is over the ’80s and ’90s, with none of the typical, established, limiting and legitimating factors for judicial supremacy.

And again, I think we’ll get to examples in a second. Just to finish my answer to you there though. So when we talk about the crisis, the legal or judicial constitutional crisis today in Israel, looking back from the ’80s and ’90s, it was already foreseeable how these decisions would have a deeply destabilizing effect on the Israeli system of government, as well as on the court’s own stature and public faith and judiciary. And in that sense, today’s crisis is not some inevitable occurrence dictated by Israel’s unique features or these different elements you’ve mentioned. I think it’s, like I said, very much a force and foreseeable outcome of the Supreme Court’s heavy tinkering with Israel’s system of government itself, combined with their controversial and legal and sound decisions affecting almost every facet of Israeli life. And we’ll get to those in a minute.

Rebecca Burgess:

So to also kind of a side note but to unwind a little bit further, some of this question about why so many Israeli politicians insist on the Jewish and democratic nature of Israel is there seems to be intention, a certain secularism and a certain religiousness that seems to have come or become more pronounced over time that also is involved in the current tensions, correct?

Yonatan Green:

Absolutely. I should say that the religious secular divide and those tensions in Israel certainly play a major role in political life. I think I should say even more strongly, they play a major role in the fears or concerns, those in opposition today and those opposing legal reform. And we can get to that in a moment. I do want to say, and I don’t think we’ll open this entire discussion-

Yonatan Green:

… we can get to that in a moment. I do want to say, and I don’t think we’ll open this entire discussion right now, but first of all, many in Israel contend that there is no tension between Jewish and democratic, just in the sense that you can be English and democratic, French and democratic, Greek and democratic, meaning Jewish as a national identity, which is obviously inexorably linked also to our religious history, but ultimately as a national identity Israel is the nation state of the Jewish people and is a democratic state. I think many in Israel don’t see any contradiction or any specific tension there.

As an entirely separate question, Israel has always dealt with questions of separation of church and state. And in fact, Israel does not see itself as a country with separation of church and state in a strict sense. This is partially due to questions that have to do, as you said, with Jewish and Democratic. This has partially to do with vestiges of colonial rules. So the British in the British mandate, when the British ruled this area, they inherited from Ottoman rule, a sort of archaic system whereby all issues of personal status, sort of family law, weddings, adoptions, all these other issues. They were all governed solely by religious law, and you had sort of state religious courts which ran these things. And the British inherited that from the Ottomans, and the Jewish state of Israel, when it was founded, basically just inherited that from the British. And nobody could really… Everybody’s been afraid to touch it one way or another, or it’s been very difficult to change that once that’s kind of the established system.

So there’s so much complexity here in the background, but absolutely, yes, the religious secular divide is a major part of this. I will just finish by saying I would caution attributing more weight to that than it really should receive. And so one of the elements is that Israel is a more secular country than it’s ever been, meaning I think… And more Israeli or secular Israelis are more militant about secularism than they’ve been in the past. Religious life has had sort of less and less legitimacy in the public sphere than it has probably ever in the past. You had founders of the state of Israel sort of quoting the Bible and sort demanding that religious symbols and religious ceremonies have sort of a major part of secular public life. We’re certainly in a different era in that sense, and many would argue that Israel has become a far less religious state in many senses. So again, it’s just much more complicated than might initially be thought at face value.

Rebecca Burgess:

That is a helpful note of caution, I think. Because depending on the commentary that we in America kind of have access to, it seems that that is a much larger debate. So that’s a very clarifying kind of tampering down of it. But to return to that colonial element and the British mandate, so some anyway have traced the beginning of the basic laws in Israel. Again, no written constitution, but there is this basic law. There was about 13 that were passed in the 50s, 1958 or so, and traced it back to the British mandate and to a concept of reasonableness that I think we’ll talk about later because it seems to be at the heart of current judicial reforms. But I think that’s interesting to think about the role of the British mandate in kind of the formation perhaps of the Israeli judicial system, and also helps explain why Israel is so much closer to the United Kingdom and to Canada in terms of its judicial theories and structure than it is at all to America.

And in fact, justices from the Supreme Courts of Canada, the UK, and Israel know each other personally, and apparently often meet up with each other to discuss issues in common. But Israel Supreme Court has relatively recently taken on the role of enforcing constitutional rights or saying that there is a constitution. And this change, as you kind of briefly mentioned, seems to spring from very deliberate moves made by the longtime chief justice of the Israeli Supreme Court, Aharon Barak. So what exactly did he do that set the Israeli Supreme Court on its current judicial activism binge. Some, like Evelyn Gordon in Mosaic, for instance, have argued that he instigated a judicial revolution in the 80s or 90s, that we are very much, Israel is very much in the throes of.

Yonatan Green:

Thank you very much, Rebecca. I think it’s really interesting because tracing precisely that history of Israel’s sort of English and common law roots and its sort of similarity maybe to UK or Canada or other common law countries or other typical common law countries. And its shift really towards a sort of more American style jurisprudence is also very much attributed to Aharon Barak in many senses. And Aharon Barak saw himself as a sort of, in many ways, similar or parallel to the Warren Court, and later the Berger Court. And many sort of drew that comparison. So it’s worth saying that. And another thing worth saying before I dive into the real answer here, the Israeli Supreme Court has been enforcing rights, we can call them not quite constitutional rights, but of a constitutional nature, more or less since it’s founding.

But sort of the real difference with we’ll get into a moment is this substantive difference between enforcing rights, which are sort of well-established, understood within the entire legal community and accepted as part of the rights, part of whether it’s our heritage from the common law, whether it’s explicit statutory rights, et cetera, versus this very, very different sort of phenomenon which we saw from the 80s onwards. And we’ll get into that right now. The last thing I’ll say, which I’ll get back to in a moment is, of course, judicial revolution, not quite, but constitutional revolution, constitutional revolution is a phrase that Aharon Barak himself coined. He’s the one that called what he was doing or the legislation, which upon which he based a lot of what he was doing, the constitutional revolution. So we’ll get to that in moment. So let me dive in for a moment and set out a few of these changes as you asked, right? So what did Aharon Barak do as part of the Israeli Supreme Court?

And this is just a few examples. It’s non exhaustive, but I’ll try and map it out. So in a nutshell, Aharon Barak and the Israeli Supreme Court reshaped Israeli jurisprudence and the court, and its Israel’s system of government as well. Let’s start sort of chronologically from the mid 1980s, which we call… Many call this sort of phase one or the administrative revolution. So throughout the 80s, gradually… But when I say gradually, I don’t mean in hundreds of cases. Maybe in a dozen cases, maybe in half a dozen cases, right? A few particular landmark cases. First of all, the court abolished established threshold requirements like standing and adjustability. It did this explicitly. It did this in the clearest terms possible. And again, when I talk about reshaping Israeli jurisprudence, we’re not talking about starting from scratch. For many, many years, the Israeli court was actually strict about these kinds of threshold requirements like standing and justice disability, and dismissed many, many cases which were lacking these. A really typical example throughout the 80s which I can give you is the question of ultra orthodox exemption from military service.

And this is an issue that runs throughout the entirety of Israeli, the controversy… And I’m sure we’ll get back to it pretty soon. But with this particular example, for years and years, the court threw out suits or petitions. Again, the High Court of Justice, Israel Supreme Court threw out petitions against…challenge this policy. In Israel, there’s a policy. Both the Arab minority and the Ultra Orthodox or Haredi Jewish minority are exempt from military service, where otherwise most men and women have to serve in the military after high school and before universities, roughly. This was challenged many, many times in court throughout the years of the country, and it was consistently thrown out, both for lack of standing, and especially as nonjusticiable, as an inherently political question, as something for the political branches to figure out, et cetera.

And in the 1980s, the court gradually allowed these cases to come in, both based on all kinds of really creative theories of standing, and also basically, again, explicitly, and this is the Aharon Barak stamp in terms of the way that he saw the court’s role, really explicitly getting rid of the notion, the very notion of justiciability. Aharon Barak is famous for a variety of quotes talking about how there is no legal vacuum, and there is nothing that the government can do essentially, which cannot be ascertained or which cannot be measured in legal terms and cannot be adjudicated. Another, of course, major element of the administrative review, of the administrative revolution is the reasonableness doctrine, which we can talk about a little bit right now. So some of our listeners might be familiar with the common law. Wednesbury unreasonableness doctrine. This is in the 1950s. I won’t go too much into the weeds, but in the 1950s, the UK courts developed this sort of doctrine for administrative review.

When we’re talking about administrative law, we’re talking about judicial supervision or judicial review of government action, the executive action, not of striking down laws, but of executive action. And you have all the typical grounds, right? You have illegality, of course, ultra verus, which is the mother of all grounds for review of government action, but also discrimination and arbitrary capricious, and procedural flaws and a bunch of other grounds. At some point, the British courts developed this doctrine in the Wednesbury case, which is why it’s called Wednesbury unreasonableness, which says that certain decisions, even if on the face of it, they’re legal, even if we’re not going to strike them down due to illegality, certain decisions are so outrageous, so patently absurd that no reasonable government agency or no reasonable government official would actually make this decision.

And of course, the idea behind that being that even if there is some kind of authorization, some kind of legal authorization to make this decision, this is not something that the authorizer, the legislator intended when they granted this authorization. So that was a very long introduction to Wednesbury unreasonableness. The Israeli version of reasonableness is nothing like that, and has nothing to do with that. So based on the Wednesbury reasonableness of common law, the Barak Court developed something that we can call the balancing unreasonableness. And this is the term used by Israeli legal expert, Yoav Dotan. Professor Yoav Dotan is one of Israel’s foremost administrative law experts. The balancing reasonableness asks a completely different question. It asks, of course, was this decision reasonable, right? Was a decision made by a government agency or government official reasonable? However, it basically says there’s a sphere of reasonableness, right? There’s a range of reasonable decisions, which the court defines, right?

The court doesn’t need any kind of statutory basis to say this. There’s a range of reasonable decisions, and it starts at point A, ends at point B, and we, the court, will decide whether this, the government officials decision falls within or without this sort of overturn window, within or without this range, this variety of reasonable decisions. Now, of course, the court completely threw out this idea outrageousness, meaning no longer does a decision have to be completely outrageous, completely beyond the pale. It merely needs to be something that the court ultimately disagrees with, that the court thinks is a bad idea, that the court thinks either it’s bad policy or unjustified, or leads to some negative outcome or whatever it is. And there are dozens and dozens and dozens of examples of this. You can assume that almost any major activist court case that you’ve heard of in Israeli jurisprudence, most likely that it can be attributed to reasonableness.

And that’s another example of just how powerful it is. Because in common law countries, Wednesbury reasonableness is the Hail Mary. You’re never going to win with a Wednesbury reasonableness suit. Because the chance the court is going to intervene based on backgrounds alone is almost zero. As opposed to then the court… Sorry, in Israel, in the Israeli Supreme Court, that is the go-to grounds for the court intervening with government policy. And so the grounds of unreasonableness in Israel was used in a range of context in military tactics and strategy, in immigration, in the laws against the boycott divestment and sanctions movement against Israel. It permeates Israeli legal culture from every possible angle. Some consider… And I’m going to wrap up for the moment about reasonableness. Some consider reasonable is to be the major revolution in Israeli jurisprudence that all other revolutions sort of stem from.

I’ll mention just one more major element of the first phase, of the phase of the administrative revolution, which is really already a constitutional change, which is the Pinchasi-Dery doctrine. So the court, in the early 1990s, developed a doctrine based on reasonableness that was specifically about appointments, about government appointments. And again, professor Yoav Dotan calls this… He calls this doctrine, the Pinchasi-Dery Doctrine. He calls it impeachment by judicial review. And the idea is that the court… And of course, as we know, governing is appointments, right? Governing is, at its core, the power to hire and fire people. If nothing else, that’s what government is. And the court, based on reasonableness, started intervening with major government appointments, all the way up to cabinet ministers, meaning the Prime Minister wants to appoint somebody or doesn’t want to dismiss somebody within the cabinet or some other major position like the chief of staff, like the state prosecutor. We’re talking about the highest ranking sort of appointed civil servants or semi political roles, like a government minister or a cabinet member.

The court will dictate that this person has to be fired, or that this person cannot be hired for a range of reasons based on reasonableness. And again, I will clarify or I’ll reiterate, this is not based on illegality. This is without any kind of statutory basis. Meaning when there’s a statutory basis, you don’t need reasonableness, right? If there’s a statutory basis saying this person cannot be appointed because they’re not the appropriate age, or they haven’t passed their chilling period since their other high ranking right position or whatever it is. For any of these reasons, that’s a statutory reason. That’s not reasonableness. But solely based on reasonableness, the court started striking down high level appointments. The example that kicked it all off was two cabinet members in the Rabin labor governments, left-wing labor government of the early 1990s. I think it was 1993, 2 cabinet members were under criminal investigation for some offenses, and the court basically required that Prime Minister Rabin fire them. And Prime Minister Rabin said, “There’s no legal basis for me to fire them.”

At the very… The black letter law says that a minister has to step down if they are convicted, if there’s a final conviction, unappealable, of a specific type of criminal offense. And before that, there’s no statutory obligation to dismiss these people. The court said, “No, because it’s unreasonable, unreasonable to lead these people in their position, you actually have to dismiss them.” And he ultimately did. I know I elaborated by that way more than I probably should have. But yeah, this is just to give a little bit more color to my more general statements about the court’s intervention, et cetera, to round out the mapping of the major changes made by the Barak Court. One other major part, which I’m really not going to talk about, is the empowerment of the legal counsel to government, what’s sometimes called the Attorney General. And it’s not quite, I think the appropriate term. The official term in Israel, the legal counsel to government and Ha-Yo’etz Ha-Mishpati La-Memshala.

And the empowerment of this high ranking civil servant to an unparalleled degree, who ultimately just became a proxy of the Supreme Court, who was able to sort of execute Supreme Court policy without even needing sort of the direct intervention Supreme Court. The court adopted a style of statutory interpretation, which they called objective purpose of interpretation, objective purpose of interpretation. And what this was in a nutshell, of course, developed by justice Aharon Barak, what this was in a nutshell is that the court can discern the objective purpose of legislation. When I say objective purpose, it means what, wait for it, what the reasonable legislator would, would wanted the purpose to be, meaning the opposite of objective, right? So the idea was, again, according to this theory of statutory interpretation, that we can totally ignore what the actual legislator wanted, what the actual legislator’s purpose was in enacting a certain piece of legislation, we can consider what the ideal right, he calls it, uses the word objective, which seems like the exact opposite because it’s whatever the judge might want it to be.

But it’s the ideal, what the reasonable legislator would’ve wanted it to be. And we can interpret statutes according to that, even in direct contradiction to the textual meaning of a statute. So again, not diving deep into there. And finally, finally, above and beyond all of these, I’ll say something about the constitutional revolution, right? And this is, again, a phrase coin by Barak himself. This is the landmark ruling in 1995 called the Bank of Mizrahi ruling, which both invented the Israeli constitution and sort of deduced the courts authority to strike down legislation. And I will expand on this just a tiny bit, before I do this. Rebecca, do you want to jump in? Is there… I know I need to come up for air, right? Is there…

Rebecca Burgess:

There’s a lot to digest. No, I had to smile because I was suddenly thinking about the emanations and penumbras.

Yonatan Green:

They’re good,

Rebecca Burgess:

Thurgood Marshall. It sounds awfully close to that. But even more, even beyond that type of a thing, it’s really quite astonishing when you think about…

Yonatan Green:

There are a few interesting parallels with Marshall that some have pointed out. So one of them was sort of many pointed out was that bar, Aharon Barak sort planted a sort of outrageous or sort of innovative idea in a minority opinion, in a sort of obscure case that nobody cared about, and then he would sort of gradually reference back to his own minority opinion, as if it was settled law, or as if it was some kind of settled precedent, and just sort of casually do so until it just eventually became a majority opinion in some major case or whatever. And this also happened to some extent in this case as well. But I will say a few words about the constitutional revolution just for our listeners. So you mentioned, Rebecca, the basic laws, right? So in 1948, Israel did not enact a constitution, even though its Declaration of Independence said it would.

And they eventually came up with what they called the Harari compromise and the Harari decision. This was a decision in parliament, in the Israeli legislature, which said, you know what? Obviously we’re not making much headway in the constitution. We’re going to enact a bunch of laws, and we’re going to call them basic laws. They’re going to be normal laws. There’s nothing special about them. They’re enacted the same way the normal laws are, but they’re going to have the heading basic laws. And they will serve as a draft, as a draft, this is how it’s been characterized for years, as a draft for a potential future constitution, right? So one day, the legislator, or perhaps the public or some kind of special process would come along and say, you know what? Let’s aggregate all these basic laws together, and let’s throw them into one basket and call them constitution or perhaps change them in some way, et cetera.

So Israel, for many, many years, and since its founding, in effect, had a sort of codified or a political constitution. Like many political constitutions, this had some written elements, such as the basic laws. And I say this again because there are many basic laws which many would consider as not of a constitutional nature. So for example, there are elements of Israel’s budget, Israel’s annual budget, which is a basic law. One of Israel’s most important sort of undeniably or udebatably constitutional laws is not a basic law. The law of return, the law repatriation, which says that any person belonged to the Jewish nation throughout the world can actually become citizen of Israel. So this is clearly of heavy constitutional nature. It’s not considered basic law. So even just the questions of where do you start and finish these written elements of these early political constitution are not clear.

Now, of course, this is throughout the world, right? In the absence of a constitution, the defining feature of democracy is parliamentary supremacy, right? When you don’t have… This is… Throughout the world, when you don’t have a constitution, there is no basis for striking down legislation. So fast forward, in 1992, the Knesset enacted two laws, two basic laws, basic law of freedom of occupation, basic law of human dignity and liberty, which dealt directly with sort of semi constitutional rights, right? Some people called these the Israeli Bill of Rights, so to speak. Even though Israel, unlike some arguments to the contrary, is the Knesset did in fact legislate many, many, many rights, including political rights, including including civil rights throughout the country’s history, but this was considered a really strong example of a sort of bill of rights, human rights, et cetera.

In a landmark 1995 ruling, the Supreme Court decided these amounted to a constitutional revolution, that the enactment of these two laws in 1992 amounted to a constitutional revolution. And that not only these two laws, but therefore all basic laws are now retroactively part of the Israeli constitution. And this also means that the court can invalidate regular laws, which violate, or contravene or contradict one of the rights or one of the other principles enshrined in these new basic laws. I should note, as a side note, this ruling was published a few days, a handful of days after the murder of Israel’s prime minister, Yitzhak Rabin. And this sort of contributed to the way that this ruling went totally under the radar. More generally, clearly at that point, nobody in 1992 thought that Israel had a constitution. Even today, nobody outside of Israel really gives credence to this idea that Israel has a constitution for all intensive purposes. And this is really the sort of legal and logical lead that the court made in 1992, because Israel indeed did have a constitution.

It just had a political one, and an unwritten one. And of course, the leap here is to say, well, Israel has a constitution, so let’s just pretend that it has that one other element that a written constitution does, which is the power to strike down legislation. But that is, of course, the entire point, meaning the entire… One of the defining elements, one of the distinguishing elements between a political constitution and a legal constitution, between an uncodified and codified constitution is that particular power of striking down a legislation. Here, I’m going to make… You mentioned, Rebecca, you mentioned of course, Marshall. I’ll mention, just for a moment, the difference here between Marbury v. Madison, because this obviously comes to mind to Americans. And Barak… I remember Barak made this argument himself in the Bank of Mizrahi ruling. The difference is enormous. Because in Marbury v. Madison, whatever you might think of that particular case, there was no controversy. There’s no question about the very existence of a constitution, meaning nobody… There was not a question about America, about the United States of America having a constitution or not.

Yonatan Green:

A question about America, about the United States of America having a constitution or not. Then there’s simply the question of can we deduce from this constitution the power to strike down legislation, even if it’s not explicitly elaborated or articulated in the Constitution? That’s one of the big questions. That’s not the case at all in Israel.

In Israel, the landmark, this case, the Bank of Mizrahi case is 600 pages long, and it’s 600 pages… Yeah, I can see you taking a intake… That’s not even the longest Israeli Supreme Court case, 600 pages long, and it’s all there, it’s mostly there to persuade the reader that Israel has a constitution. I’m always reminded of the saying attributed by some to Margaret Thatcher where she said, “Being a country is like being a lady. If you say you have to, then you probably aren’t.” And this is not a statement on gender identity or anything like that. It’s a quote just from Mrs. Thatcher.

But if you have to persuade your readers with 600 pages with all these elaborate, convoluted theories about how, even though you have to deny all the evidence in front of your eyes, and you have to claim that Israel has a constitution, that clearly isn’t the case. Just to clarify, of course, Israel never had a constitutional moment. There was never a moment where the public said, “Hooray, we have a constitution.” There was no constitution day in Israel. There was never some public moment where Israelis agreed in a explicit, conscious, deliberate effort to say, “Yes, we have a constitution. And this is the content of that constitution.” That moment never happened. Meaning, to summarize that point, in the sense that almost everybody in the world mean when they say a constitution, Israel does not have that thing.

Just because how much I love the Richard Posner piece, Enlightened Despot, on the Israeli legal system, I’ll throw in one quote from him on this particular issue, because, I think, again, he nails it. This is from Richard Posner. He says, “Only in Israel do judges confer the power of abstract review on themselves without the benefit of a constitutional or legislative provision. One is reminded,” this is still the quote, “One is reminded of Napoleon’s taking the crown out of the Pope’s hands and putting it on his own head.” This is Judge Richard Posner, the great, the most cited legal scholar of the 20th century talking about how the Israeli constitution came to being.

I just, again, meaning this isn’t the… And Posner is not some hard right conservative or some hard originalist. This background is really important, I think, and I know we’re about to get to what’s happening today in Israel. This background is really important, because we are in a unique and bizarre situation in Israel. I think it is required to understand just how unique and bizarre that situation before one really evaluates what’s happening today in Israel.

I’ll just say that there are three clubs in the world when it comes to judicial review of legislation. There are countries without judicial review of legislation at all. Some of them don’t have constitution, some of them do. England, New Zealand don’t have any constitution, any written constitution. Switzerland and the Netherlands, for example, do have a codified constitution, but they explicitly do not allow, do not allow the court to strike down primary legislation, that’s exclusively forbidden in the constitutional text. So, that’s one category.

The other club or the other category is where you do have judicial review of legislation based on a constitution, meaning, every country in the world in this category, in this club, every country that has judicial review of legislation where a court can strike down a law enacted by parliament, it has to be based on a constitution.

Then there’s a third club, but it’s a very lonely club, because its sole member is Israel. That is the club countries in which the court can strike down laws but with no constitution. Of course, I cannot overstate how destabilizing this has been for Israeli society more generally, for the Israeli legal system, for Israeli system of a government.

One way it’s been characterized by member of Knesset Simcha Rotman, funny enough, is that Israel truly does have, Israel truly does have a living constitution, but in the quite literal sense that its constitution is vested in the identity of the judges at the Supreme Court, because only they know the content of the Israeli constitution, and they are themselves, they embody the constitution. So sorry, this is my very long answer to your question.

Rebecca Burgess:

Self-selecting solons is how I’ve heard it referred to them-

Yonatan Green:

That’s good.

Rebecca Burgess:

… as the Israeli judges, which I think is a pretty great little phrase there.

Yonatan Green:

I’ll use that.

Rebecca Burgess:

Let’s bring it to January 2023 or even this past week, and the judicial reforms that were proposed by the Netanyahu government. What exactly were the proposed reforms? On the one hand, there are commentators in Israel and America who are saying they are nothing short of an autocratic, authoritarian power grab of Netanyahu trying to get rid of the last remaining restraint on his power. From this stance, he’s generated headlines like, “Nothing short of Israeli democracy is at stake,” very breathless.

On the other hand, and I think that your position more closely reflects this, there are those former US Attorney General Michael Mukasey in the Wall Street Journal who say that the reforms don’t go far enough, because the Israeli Supreme Court doesn’t seem aware of the distinction between law and policy. What are we to make of the debate? I think you’ve already given us a bit about how to make what to think of the debate, but at least what are these reforms in their essence?

Yonatan Green:

Absolutely. Well, yeah. Well, We’ve danced around the issue of reforms enough, and I think you’re right, it’s a good time to actually dig into them. Yes, actually, I do recommend to listeners that they read Michael Mukasey’s piece in the Wall Street Journal about the reforms and also those of other, of course, we’ll talk about those. But Law & Liberty has a number of pieces, Law & Liberty Journal has a bunch of pieces on the reforms. Also, professor Richard Epstein and many other eminent jurists in America and elsewhere have spoken out about the reforms, I think, in a way, which is obviously contrary to that sort of spirit of nothing short of Israeli democracy is at stake, et cetera. And I think those should be given attention.

Who’s right and who’s wrong? What to make of the debate? What the reforms are about? Let’s get into it. I think, first of all, this really may be the most important thing to take away about the conversation about reform in Israel right now, is that there are two conversations being conducted simultaneously, and we have to recognize that.

The first conversation is about the problems of the Israeli judiciary, and the merits or dangers of the proposed reforms. Thoughtful, enlightened, reasonable, educated people can absolutely disagree about the optimal or the desirable arrangements for the Israeli system of government, and whether the current arrangements are good or bad, and how good or bad are the various proposals, et cetera. Hopefully, we’ll even get to some of that.

However, the second conversation which is going on is this obscene, reckless, grotesque allegation that the proposed reforms amount to a coup, and are patently undemocratic, as you’ve quoted. That the legal reforms somehow under undermine or even dismantle Israeli democracy itself. I think this is a claim, and you’ll be able to evaluate whether I’m making sense or not, I think this is a claim which any reasonable and good-faith observer has to summarily reject outright.

I’ll kick off, I think you’ve already discovered, I kind of like quotes, so I’ll kick off here with a quote from Professor Alan Dershowitz, of course, the eminent constitutional legal scholar. I think he’s probably one of the few global constitutional scholars who actually has a clue, I wouldn’t call him truly an expert, but he has a strong idea about what goes on in Israel. This is a quote from a recent talk of his that he gave on Zoom about the reforms. He says, “This is not about democracy. If all of the reforms were enacted, and I oppose most of them,” this is still a quote from Dershowitz, “If all of these reforms were enacted, and I oppose most of them, it would turn Israel into, God forbid, Canada or New Zealand or Australia or many European countries. It would not turn it into an autocratic country.” This is from Professor Alan Dershowitz.

Another, I urge listeners to read the essay by Professor John McGinnis in Law & Liberty. He calls this claim simplistic bombast, specifically about the end of Israeli democracy. To this end, I’d like our listeners and you, Rebecca, to consider three points, which I think broadly characterize a proposal for reform. We’ll get into the proposals themselves. But I think these are important characteristics when we talk about the danger to democracy.

First, each one of these reforms strengthen Israel’s representative democratic institutions, and they give more power to the electorate through their representatives. So, this would be the first political coup in history, the first undermining of democracy in history, which diverts more power to the people and to their accountable representatives.

I mean, coups usually work the other way around. They usually divert power to the military, or specific political parties, or to, one might even say, entrenched unelected bureaucracies. Nudge-nudge wink-wink. But that’s a fairly easy and early tell, who is gaining power? Is it the ones who are up to be put in office via elections regularly or is it somebody else? And I think that’s a fairly solid test.

Point number two here is that each of these reforms, partially at least, at least in part, revert to Israel’s patently democratic and right-respecting legal system of the 1980s, or the 1990s, because as we’ve said already earlier, until 1995, Israel was a UK-style parliamentary democracy with legislative supremacy. Until the 1980s, Israeli courts did just fine without the judicial reasonableness doctrine, and I’m just giving these as an example.

These reforms passed today exactly as they were originally proposed, and they’ve already gone through all kinds of changes. But even as they were proposed in whatever it was of January 2023, Israeli courts would still have more power than they did in 1980 or 1990. And the power of Israeli parliament would still be more limited than it was in 1980 or 1990.

So, in order to argue that these destroy Israeli democracy, you actually have to maintain, or you are in effect arguing that Israel was a totalitarian dictatorship in 1990, and that is an obscene argument, which in fact, nobody makes. I should say, nobody makes. Recently, in a debate, which one of our law student chapters held at Hebrew University, an eminent and prominent constitutional scholar was kind of forced into a corner to make that claim. And he ended up saying, “Yeah, I guess, before 1992, before the basic law in human dignity and liberty, we weren’t actually a democracy,” but too bad that in 1990 nobody was actually making that argument. Of course, I don’t think it has any merit.

Finally, finally, the point about democracy is this, each of these reforms bring Israel much closer to and more aligned with democratic systems of government throughout the world. I can again demonstrate this for each of the reforms. You asked there, do the reforms go far enough? I think to answer this questions, the listeners and the reasonable, or the thoughtful observer, has to judge for themselves. For this, we do actually have to dive in to describe what the actual reforms are.

I think there’s a reason that they’re often described so vaguely, and I think there’s a reason that many of the protestors against reforms revert to these very, very general allegations without going into the specifics. Because I think the genuine scrutiny shows them to be fairly mild by any measure. Another last point I’ll make before really diving in is that I think that the reforms, properly seen, should be understood as compromises from the beginning.

So, let’s dive right in, without further ado. I think the reform as it was proposed for the first time in January had four major elements to it, four major parts to it. From bird’s eye view, it had to do with the judicial selection process, how judges are appointed. It had to do with judicial review of legislation, how laws are struck down. It had to do with the reasonableness doctrine, and this is recently in the news. And it had to do with the office of the legal counsel to the government, or the role of legal counsel to the government. That’s the bird’s eye view of the four categories.

Let’s start with the first, the judicial selection process. So, in Israel, by law, this is a statutory rule, there’s a nine-member committee which appoints judges. Three members of that committee are sitting, presiding Supreme Court judges. Two members of those committee are representatives of the bar, of the Israeli Bar Association, or one what might say, of the legal profession, so to speak. And four are representatives of the other branches of government, so they’re of government. There are two government ministers, cabinet ministers, it’s always the justice minister, or what in the US you call the attorney general, the justice minister and one other cabinet member, and two members of Knesset. By custom, many times, the members of Knesset have had one representative from coalition and one from the opposition. But this is not guaranteed by law. This indeed has not been the case in all the times.

If you’ve been following and doing the math, I’ll start with this. One critical element to understand here is that in order to appoint judges to the Supreme Court, to the Supreme Court, you need a majority of seven, a majority of seven. In order to appoint judges to all the other courts, you need an ordinary majority of five. If you’ve been doing the math and you’ve been following, first of all, with regard to appointment to the Supreme Court, the judges have a veto, because you need three out of nine judges, you need at least one judge to vote with you, if you’re going to try to appoint judges to the Supreme Court, seven out of nine. The judges always vote together, funny enough, even though the law says that each member of the committee has to exercise personal discretion, et cetera, essentially, the judges vote as a block and they have an effective veto on who joins them on the bench. That’s the first sort of, I think, the final defining really critical element to understand about the judicial selection’s process in Israel.

I should also say, that even when we’re talking about ordinary judges, judges who are part of the rest of the judiciary, not the Supreme Court, a majority of five out of nine means that the legal establishment, three judges and two members of the profession, two members of the bar, can in fact unilaterally appoint judges in the teeth of the elected branches, with no agreement, with no consensus whatsoever from the side of elected representatives. The judges together with the legal establishment can appoint just about whoever they want to the courts. And this indeed has been the case for many years, and they’ve used this to great effect. So, representatives accountable to the electorate are a minority on this committee. And we’ve established some of the elements of this.

The proposal, again, there’ve been a few proposals that have been moved around. But the general gist of the proposals is this. One, it’s to remove the veto of the judges, so to no longer have this power wielded by sitting Supreme Court judges, so that they use in order to block candidates that they don’t like, or that they disapprove of. The second element would be to grant greater weight to elected representatives. Of course, this means among other things, if we’re talking about greater weight to elected representatives, this usually means to the elected representatives who currently control the Knesset or whatever it is, meaning if it’s a coalition or whoever has a majority in the Israeli parliament.

I want to move on, but just so that’s a description of the reform there. Israel is almost alone in the Democratic world. We spoke about judicial review legislation. Israel is almost alone in the democratic world, where judges can strike down primary legislation without a political judicial appointments process. Throughout the vast majority of the democratic world, there is a certain alignment, there’s a certain match between the power, the constitutional power of the courts, and their appointments process. And it is assumed, it is assumed and really sort of inherent in many legal systems throughout the world that if the court has the power to strike down legislation, it also has a patently, a political process of appointing judges. So, I’m putting that out there.

Now, one last point about this is that aside the theoretical problems here, and we can think of all this, if we’re in a constitutional law seminar, we can think about all the problems of having sitting judges vetoing the members who join them. But this is not a theoretical question here. This system has been de facto abused by sitting judges throughout Israeli history, and especially, especially in the past 20 or 30 years, starting from the Aharon Barak era. It has been abused by judges to block candidates that they dislike due to ideological differences. I’m not talking about professional dislike, I’m not talking about someone who lacks qualifications. I’m talking about somebody who they just disagreed with.

The most glaring example of this is that of Professor Ruth Gavison, you can Google her, I’m not going to go into the whole history, but this is one of Israel’s… She passed away a few years ago. This is one of Israel’s leading constitutional and legal scholars who was simply blocked by Aharon Barak and the court because she was critical of their judicial activism, and she had a much more moderate approach towards the court’s role. This is well-known, and I suggest you look it up.

Final, final point about this is that, just to reiterate what I said before, this is in and of itself a compromise, and I want you to understand this, because the proposals for reform could just have said, “Let’s adopt a purely political appointments process, which is just as is done in most European countries or the US, for example, we can just have the cabinet appoint or the justice minister appoint and the parliament approve.” I mean, this is done throughout the democratic world. It’s not considered the end of democracy. It’s not considered to be damaging judicial dependence, et cetera, et cetera. This is in and of itself a compromise, this idea to retain the current system grossly as it is with a few tweaks to give greater weight to elected representatives.

Okay, moving on. Second part of the reform regards a judicial review of legislation. I should say, this is the first time, this would be the first time the reforms passed, which, actually, explicitly allowed judicial review of legislation, because I think I’ve clarified this so far. Judicial review of legislation in Israel is not in any way, shape, or form, explicitly authorized in any law in Israel. So, in some senses, and this is one of the senses that people felt that… That conservative legal scholars thought that the reform was making a mistake in the sense that the proposal for reform is the first time that a law would actually, officially, authorize the courts to strike down legislation.

What are the changes they want to make to this currently unlimited, meaning, currently, the authority of the court to strike down legislation is undefined anywhere, is unbounded, nobody knows what those limits are except for the judges themselves. So, the suggestions are, A, to limit the judicial review in terms of the panel size and the majority required. Today, any panel size, I should say, the Israeli Supreme Court generally does not sit on bunk, it doesn’t sit with all its 15 members. It usually sits in much smaller panels, the default is three. That panel size can sometimes be large, five or seven or nine, or in very rare circumstances, say, 11. One suggestion says that in order to strike down a law, you need a certain minimum panel size, let’s say, seven members, nine members, whatever it is, and you need a certain majority, let’s say, two-thirds or three-fifths or something, which is not merely a slim majority.

Number two is to limit the grounds for judicial review to enumerated rights alone. Meaning, and I know this sounds crazy, but in the absence of a constitution, in the absence of a written constitution, the court can strike down a law only if it’s violating an explicit, an enumerated right, which one can point to a specific article in the basic law which is being violated.

Of course, one would think that this might be obvious or superfluous. However, the court has in fact struck down legislation based on unenumerated rights, and hopefully maybe I’ll get into that maybe a little bit later. But I will just say that the court has, on a few occasions, struck down legislation regarding exemption of ultra-orthodox from military service. And I’ve mentioned this before.

In the times that they’ve done this, this is based on a right to equality. However, there is no generic or explicit right to equality in the basic law of human dignity and liberty. Not only that, but a right to equality was in one of the original drafts, and it was explicitly and deliberately removed from the draft that was ultimately enacted as part of a deliberate compromise, which was the only thing that enabled this draft to actually become law. So, I want you to wrap your head around this. Equality was that you cannot envision a more explicit rejection of a blanket right to equality in a law.

However, in these cases, and in other cases as well, the court decided to read equality into the right to dignity. The right to dignity, which is explicitly mentioned in the basic law, in fact, includes an inherent right to equality, and therefore the court struck down these arrangements with regard to ultra-orthodox exemption from military service.

I’ll also say as a caveat that, of course, in these specific cases, I like these cases, because they’re a wonderful example, because this has nothing to do with rights, they’re not protecting rights of anybody. This is a benefit conferred onto a minority. This has nothing to do with protecting minorities. This was clear judicial policymaking based on unenumerated rights deliberately not included the law. Other elements of the proposal here for judicial review of legislation to limit review, judicial review, to ordinary legislation, and not to constitutional legislation or to basic laws.

This idea that the court can strike down legislation which violates a basic law, but it cannot strike down the legislation, which is a basic law, cannot strike down the basic laws themselves. Again, this would seem to make sense, meaning if the court’s jurisprudence is that the basic laws are Israel’s constitution for all intents and purposes, it’s Israel’s quasi-constitution, then of course the rule cannot simply strike down these constitutional amendments, these basic laws themselves. I might get back to that in a moment, not in a moment, later on, because that ties into the reasonableness doctrine, which was recently addressed in legislation.

Finally, finally, the last element of this particular part, and again, this is the beefiest part, the others are easier to review. The last part of this judicial review proposal is granting the Knesset, the right to insist is what I call it. It’s usually called the override clause. I don’t like the term override clause because, of course, the first one doing the overriding is the court, the court overrides Knesset, Knesset Israeli Parliament. I should have noted. The court overrides Knesset legislation when it decides to invalidate it.

Then the idea here in this piece of legislation or in this proposal is that the Knesset can insist. Of course, in Canada it’s known as the notwithstanding clause. And there are other similar mechanisms elsewhere in the world, where the Knesset can say, “You know what? We understand that the court thinks that this is unconstitutional, but we’d actually like to leave this law in place as it is.” There are various mechanisms that limit this concept. I’m not going to go into details, but some have proposed that the Knesset has to re-legislate it every four years. Others have proposed that the following Knesset after election cycle has to reiterate it, et cetera.

Rebecca Burgess:

So, with that said, and I know we have whole trimesters here of content to go through and delve into, and you’ve been…

Rebecca Burgess:

… you know of content to go through and delve into. And you’ve been so helpful in background, history, and colonial law even, all these different aspects of it. But the reforms that were just voted on, and you mentioned reasonableness, this is a big, big part of it, so what exactly are these reforms and what happens from here?

Yonatan Green:

Perfect. Okay. So really, the next element or one of the major legs of the reform, proposal for reform is indeed the reasonableness doctrine. And I think I’ve elaborated more than I needed to, even on other reasonableness doctrines. So I won’t go great deal into that, but this new piece of legislation that was very recently passed basically says the court cannot review decisions of government. That means government as a whole, cabinet decisions, but also decisions made by government ministers, based on reasonableness alone. The court cannot invalidate these government decisions based on reasonableness alone.

I should say that this follows what some people have called the Sohlberg proposal. This is along the lines of a proposal made by Israeli Supreme Court Justice Noam Sohlberg, and it essentially says we leave the reasonableness doctrine in place for bureaucrats, for unelected officials, for most of what you would usually call government and the agencies and branches of government, but not for official policymaking or not for high-ranking appointments, not for real policy, and all these decisions which are typically made by elected and electorally accountable people, like the prime minister or the cabinet or cabinet members, et cetera.

Rebecca Burgess:

I think, and going or reviewing, from this standpoint, everything that you’ve said before, it just comes home again that it really seems that what’s really being debated here is not so much, but of course judicial reforms, but in fact, perhaps the shape of Israeli democracy. And I know that, in the pages of law and liberty, there’s been various writers, authors who have talked about various aspects of this. And so you mentioned John McGinnis, but there’s also David Wurmser, who may be a little bit more divisive of an argument perhaps than what you’re making, but he talks about the many forms of judicial tyranny and ultimately compares the model of Israel Supreme Court that it seems to favor, in theory, with the Islamic Republic of Iran, in practice, with the small minority of judges who rule the country with their interpretation of Sharia law.

To be clear, he is not saying that Israel is trying to go for Sharia law or something like that, he’s just mentioning the tyranny of judges. And what I thought was rather interesting was Ronen Shoval’s argument about Israel’s, a liberal judiciary, who compares the tactics of the Israeli left with the storytelling tactics of America’s Trumpian hard right, and that ultimately what is going on in Israel is a fight dreamed up by the left about fighting back against the tyranny of the majority, but that, in reality, is nothing other than the left seeking to create a tyranny of the minority of their own.

Once again, it seems so very complex, very political, in fact, which leads me maybe to a final question, and then maybe the final, final to you is, what hope is there? Do you have any hope in this? But is it possible that the violent reactions against the reforms are, in fact, reactions to Netanyahu himself, meaning that, if Netanyahu were absent from the equation, maybe there would not be as many or these difficulties with the reforms? Is that a case of the right messes with the wrong messenger, essentially?

Yonatan Green:

Wow. Okay.

Rebecca Burgess:

That was a lot, I know, I threw at you.

Yonatan Green:

I’ll answer your last question first about Netanyahu because I think it really is an important question. I think, often, by the way, sometimes that question is asked from a different perspective in that Netanyahu, with his legal woes, does that somehow affect the coming into being of these reforms? And to that, I say an emphatic no, just because this is such a strongly based grassroots movement and this has had so much background over the past 40 years, to claim that this is just because Netanyahu has some legal troubles is why we’re having these is, it seems, a peculiar argument, but that’s another question you’re asking. So all the better.

My answer to you is yes and no. And first of all, as you know, I love my quotes. So first of all, my answer is yes and no. So Professor Alan Dershowitz also on this issue, and I think he says it correctly, he says, and this is also in a recent event that he participated in, he said, “It’s not about the proposals.” He was talking about the protests or the anti-reform movement. “It’s not about the proposals, it’s about who’s making the proposals. If exactly the same proposals had been made by a centrist government or a left-wing government, no one would notice. There would be no demonstrations. There would maybe be some academic discussion.” This is what Professor Alan Dershowitz was saying.

So I would agree. First of all, I would say that, materially, substantively, when we’re talking about the substance of these reforms, if they were enacted by a left-wing government, there would be no protests in the sense that there’s nothing inherently really problematic about these reforms that ought to elicit the kind of response that it has. And of course, many on the left throughout the years have voiced the same critiques of the judiciary and they’ve advocated similar policies to the ones that we’re seeing now in the reform proposals, including some of the opposition parties that have advocated some similar measures.

Now, I’m going to say I’m not sure that argument really undermines the protests because some of the protestors argue precisely that that’s what they’re concerned about, that it’s what this particular government might do with greater power. It’s not necessarily the constitutional arrangements themselves, per se, which is what they’re worried about. They’re worried about removing limitations which manage to restrain this government, which they very much object to.

So I think at least that would be a more honest argument, in the sense that it brings us closer to good old partisan politics. Ultimately, you object to this government, you object to the coalition, you object to the parties making up the coalition, and then it’s just you object to hypothetical future policies that they might adopt. However, of course, if you say that, then the reaction would be that’s it, this is just ordinary partisan politics. So you do have to adopt a more apocalyptic tone if you’re really trying to fight this.

But however, to answer your question, I don’t think that’s fair and I don’t think it’s true in terms of Netanyahu. Maybe the protests against the reform would’ve been a little bit less successful and they would’ve managed to galvanize or mobilize protests against the reforms in a less successful way, in the sense that Netanyahu is a polarizing figure in Israeli politics and he’s deeply branded. And in that sense, it was probably easier to muster opposition to the reforms with him at the helm than it might otherwise have been.

However, this was always going to be ugly because, unlike other protests and unlike other issues … And the left has been highly effectively protesting the right for the past 14 years, pretty much, in Israel. It’s been every other night. People who live in Israel, these are not new scenes in many senses. However, here, the political right is striking at the heart of an undemocratic power mechanism controlled by the left. And this is in the sense that the main beneficiary of judicial supremacy, the main beneficiary of all these things that we’ve been discussing here, has been the political left and, to some extent, the old guard elites, old guard Israeli elites.

And this is not something that only the political right, this is not an argument that only right-wing people make. Professor Menachem Mautner, who’s former Dean of Tel Aviv Law School and a hard line radical lefty, he would self-identify himself, he talks about the left engaging in politics by the court, about the political left abandoning electoral politics and circumventing the political democratic process through use of the court.

So in this sense, actually, the political left, had very, very good reason to forcefully resist these changes, and of course, I would say, sadly, somewhat in bad faith and sacrificing really a little bit too much along the way, but I have to say this does explain the democracy argument that we were talking about before because the democracy argument, the democracy fallacy, it’s not a misunderstanding. It’s not, well, there’s a difference of opinion here about whether these measures endanger Israeli democracy or not. It is a conscious, deliberate effort to misguide the public, to justify political intransience when we’re talking about compromise, we’re talking about reaching some kind of agreement between opposition and coalition, and mainly to legitimate the radical escalation of measures and all the crossing of previously established red lines when opposing these reforms.

So would it have happened without Netanyahu? Yes. I don’t think it’s just a problem of the messenger. These reforms, themselves, ultimately speak to the heart of this power that the political left has enjoyed in Israel for the past three or four decades, thanks to judicial activism, and they are fighting tooth and nail because enough people, and again, especially in terms of thought leaders and political leaders, enough people on their side think that it’s worth the fight to maintain that, again, I think, undemocratic and unjustifiable, unsustainable system.

So I do owe you an answer. You asked me about what happens now in the recent vote on reasonableness. Now, I’m not going to get into the weeds on that because, hopefully, this podcast or this episode will be useful also, this conversation will be useful also for people who don’t care specifically about what happened this week or last week. Obviously, in terms of politically what’s going to happen or whether there’ll be some kind of compromise or not, it’s a little bit difficult to say. There’s been a lot of talk about the need for consensus and about why it’s so important to reach a consensus on this issue, but I do want to say a word about consensus and about this idea of consensus.

First of all, consensus can often be just a mass argument for maintaining the status quo and granting a veto to the opposition. And that’s really what consensus, in some senses at least, means. This requirement for consensus just means the other side gets to decide whether the majority, who won the elections fair and square, can actually enact their policy. So that’s point one.

Point two, which I think people ought to consider when they talk about consensus, and this is why I think there’s a measure of hypocrisy when some people talk about consensus, is that there is zero consensus which serves as a basis for these existing arrangements that we’re talking about. When the judges legislated via judicial decree, via the landmark Hamizrahi ruling, via the reasonableness doctrine, which was judicially created, et cetera, when they did this, there was no consensus. This did not reflect any kind of public debate, let alone any kind of public consensus on any issue. And I think that anything the government does at this point, even with the barest and slimmest majority, reflects more consensus than almost any current legal arrangement that exists in Israel, any current judicially created legal arrangement, and that’s also something to consider.

Finally, I think this is more of a … You’re the political theorist, so you can tell me what you think, but I think that reverting to default democratic norms does not require the same kind of consensus that perhaps other things do, meaning, when you’re saying we have a major disagreement here about the very systems of government, about the very core constitutional questions, and we want to refer to a certain default, that certain default says majority rule, parliamentary supremacy, ordinary elections, and policymaking and rules which reflect the results of those elections, I’m not sure that that can really justify the same requirement for elections.

The reasonableness law, which recently passed, limiting the use of the unreasonableness grounds by the Supreme Court has been challenged in court, and the court has been asked to strike down this amendment to the basic law. This is the basic law of the judiciary. This is as much of a constitutional amendment as it could get in Israel’s quasi-constitutional structure. And the court has been asked to strike it down. And while the case for striking it down, it’s completely, for lack of another term, it’s nutty. It’s just outrageous. It’s a joke, to say that this won’t happen is hard to say. I think it’s a little bit scary that it might come to a head, and I’m hoping that the court will have the wisdom to not bring us to that particular brink and to not strike down that kind of law.

You spoke about some of the writers at Law & Liberty, and I’ll address that also super quickly. And again, I urge the readers to read John McGinnis and Ronen Shoval and David Wurmser in Law & Liberty. I’ll say, first of all, you mentioned David Wurmser and his comparison to the Iran Supreme Council, et cetera. You know who else makes that comparison? Professor Steven Calabresi, who’s one of the world’s most eminent comparative judicial scholars. The guy wrote the book on comparative constitutional law. And in a conversation, which I had with him for the Israel Law and Liberty Forum, which you can find on YouTube, he made that exact comparison a number of times explicitly. So it might cause us to move in discomfort.

I’m not sure I would make that comparison, but this idea of a self-selecting tiny elite group, which has veto power over legislation and the political process without any kind of limiting factor, not a political appointments process, not even a textual basis, it’s not even like there’s a constitution which they can pretend to be interpreting to say, “Oh, well, we’re striking down laws because it contravenes this or that.” So there might be some merit to that. I think Ronen Shoval makes an excellent point about the Trumpian moment or the storytelling tactics, et cetera.

This is, I think, in terms of the protests against the reform, this is a stop the steal type movement, meaning, and I hope I’m not stepping on too many toes bringing up this contentious issue, but you have a large group in Israel, which is, and I do want to address this, you have a large group in Israel, which is fairly illiterate when it comes to democratic thought, when it comes to comparative democratic questions of how the rest of the democratic world works, and they’ve been told this story that these reforms are patently anti-democratic, that we are truly on the cusp of becoming a totalitarian state, and they don’t know better.

And one of the questions you asked me is, does Israel really want to rule by judges? And my answer to you is that, for some people, they don’t know the difference between democracy and rule by judges. As far as they’re concerned, that’s the same thing. To give this a tiny bit more color, just consider Israel is isolated, geographically, linguistically, and culturally, from the rest of the democratic world. The background of Israel is so different from most western democratic countries. Israel didn’t really experience that kind of tyrannical government or even that kind of hard colonial rule that many western governments, many western societies experienced. And as such, Israel didn’t develop the same type of core western insights into democracy.

So if we talk about Western insights into democracy, like fundamental suspicion towards state power, and this idea that you ought to subordinate all power to accountable oversight, this cold estimations of institutions and how they interact, with the ultimate question being who are you giving power, and how are they going to use it, and are they democratically accountable? In Israel, in many sense, their insight is reverse. Israel was also founded as a semi-socialist country with very centralized state government, et cetera. Israelis have an unusually high faith in unaccountable bureaucracies and they have a very deep suspicion of public and elected politicians and also the people that elect them.

So to wrap this up, I think, to many Israelis, the core of democracy is judicially-enforced, so-called human rights. To many Israelis, separation of powers is about the bureaucracy checking elected power. To many Israelis, rule of law is about lawyers telling legislators what policy is proper, or reasonable, or proportionate, et cetera. So in that sense, there are some Israelis that actually want to be ruled by judges, who simply don’t know any better. And of course, there’s the other part which I think are fully aware of the fact that they’d rather maintain this power mechanism, undemocratic mechanism than have to go through the chore of winning elections and convincing the electorate of their policies.

Rebecca Burgess:

As we draw to a close, what I am rethinking about is the Posner quote, that which you mentioned about thinking about Napoleon taking the crown out of the Pope’s hand, but how do we reverse it? How does the Pope take back that crown? And in Israel, which part of the government is it? And I’m really, final note, thinking about the comparison made in the founding era to judges as republican schoolmasters, meaning that the whole idea of circuit judges and writing the circuit was that they were actually responsible for educating Americans, normal, just worker, blue-collar Americans, about what democratic law was and why they were ruling or had ruled in particular ways. And it seems to me, right now, that what the situation Israel is calling for, if not across all democracies, is a reeducation about what democracy is. And who does that? Who will do that for Israel? Does it come from within or without? But it seems to me that that is quite the moment that’s needed now.

Yonatan Green:

Absolutely. And I’ll make one point about that observation, which I think is extremely astute, especially what you said about the circuit and the schoolmasters, the republican schoolmasters. I often tell law students, or I jokingly say, that if you want to undermine these Israeli Supreme Court, what you really have to do is read their rulings. And nothing is more effective in undermining your faith in the Israeli Supreme Court than just reading the decisions, but that’s not as easy as it might sound.

And you spoke about the role of educating the public. Well, Israeli Supreme Court decisions are often unreadable. They often run hundreds of pages long, they will often be unrecognizable to foreign jurisdictions in terms of what a Supreme Court ruling looks like. They are rambling treatises on political theory, and not very good ones, unfortunately, political theory on constitutional philosophy and on fundamental principles of society and natural law versus positivism.

So they all become these constitutional law seminars, as Dr. Shukisegetz, who’s one of my favorite Israeli legal scholars, Dr. Shukisegetz, he calls them constitutional law seminars. This isn’t a ruling which says, “This is the law, one, two, three, these are the cases, these are the facts in front of us, three, four, five, these plus these equals this, and this is our conclusion.” So this disconnects also with the isolation that Israel has with the rest of the world because, for better and for worse, Israel does not share a language with any other country in the world, and both in terms of the Israeli public educating themselves and seeing what happens elsewhere, but also in terms of scrutiny of the Supreme Court.

You mentioned what Aharon Barak wrote or said that would be that almost any jurist in the US, left or right, conservative or liberal, whatever, would be aghast by these notions. I think that there’s a lot that the Israeli Supreme Court would never allow itself to write and also, substantively, decisions that would never have come to being if they were open to more scrutiny, which is born of just sharing a language with other jurisdictions, where people could simply, easily pick up a decision and just go read it from cover to cover and say, “What the heck did I just read?” And that is the reaction that you sometimes get when reading a Supreme Court decision in Israel, in Hebrew.

Rebecca Burgess:

Thank you so much for … Speaking of circuit writing, that was a whole circuit-

Yonatan Green:

That was a full circuit.

Rebecca Burgess:

… of the Israeli judicial system, and thank you so very much for that. It was hopefully of interest for our listeners, definitely of interest to myself and for certain … It’s so complex. As we had mentioned at the beginning, Israeli law is nothing like American judicial law. So once again, that was Yonatan Green joining us, Israeli legal scholar. And thank you very much, listeners, for joining us. I’m Rebecca Burgess and see you next time.

Brian Smith:

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts.