Israel’s majoritarian nightmare should be a US concern

Israeli Prime Minister Benjamin Netanyahu, Justice Minister Yariv Levin, Foreign Minister Eli Cohen  and cabinet secretary Yossi Fuchs attend the weekly cabinet meeting in the prime minister's office Jerusalem, February 19, 2023. Abir Sultan/Pool via REUTERS

Israel’s governing coalition is legislating the most far-reaching revolution ever in the state’s constitutional makeup. Prime Minister Benjamin Netanyahu and Justice Minister Yariv Levin’s proposal would all but abolish the role of the Supreme Court as the sole check on executive and legislative power in Israel. The legislation has been met with widespread dissent. For weeks on end, hundreds of thousands have filled the streets, signed petitions, and gone on strike. A majority in Israel, according to polls, opposes the judicial revolution.

It’s not about you

Netanyahu has framed the “reform” as a mere check on judicial activism. From abroad, that can sound appealing to those who would prefer a less active judiciary in the United States — indeed, positions on Israel often entail projections of one’s domestic politics. The comparison is false, however, and the Israeli drama is not a proper analogy for American judicial debates.

In the United States, if a small majority of the House of Representatives aimed to pass legislation to curtail minority rights, the bill would still have to pass the Senate (with its filibuster), the presidential veto, and federal courts. Each of these institutions answers to different constraints and constituencies. They all operate under a defined Bill of Rights that is extremely hard to change. Many legal matters are also within the purview of the states, not the federal government. Abuse of minority rights still happens, but it requires the consent of many different institutions and constituencies.

In Israel, if a small majority of the sole chamber of the legislature, 61 of the 120-member Knesset, supported a bill to curtail individual or minority rights, it would face precisely one formal constraint: the Supreme Court, acting as a “High Court of Justice.” This is what the Netanyahu-Levin legislation would effectively abolish.

The Netanyahu coalition is proposing that only a unanimous decision of all 15 justices could strike down legislation. It is also proposing to politicize the process of judicial appointments, making unanimous decisions against a coalition even more remote a possibility. Most dramatically, if the court struck down legislation, a bare majority of 61 could simply override judicial review. The proposals would also downgrade legal advisors in the Israeli government from interpreters of the law at present to mere political advisers.

In short, in Netanyahu’s new Israel, the slimmest of majorities could decide anything. Pure, unbridled majoritarianism.

Criticism against the plan has been broad and wide, including a near-consensus among Israeli legal experts. The president of the Supreme Court, in a rare public speech, called the proposal a “mortal wound on the independence … of the judiciary.” Notable too have been warnings about the potential consequences to the economy from two of Netanyahu’s own former governors of the Bank of Israel, international credit rating agencies, investment banks, the Organization for Economic Cooperation and Development, former Israeli economic attaches abroad, high-tech investors and industrialists, and on and on. Comparatively, the case is clear. As Itai Ater and Tzachi Raz of Tel Aviv University have shown, countries where the judiciary’s power has been curtailed suffer significantly worse economic outcomes.

Republicans against republicanism?

Abroad, too, there has been a mobilization of concern from those sympathetic to Israel but aghast at Israel opting to become an oxymoronic “illiberal democracy.” President Emmanuel Macron of France told Netanyahu that if the legislation passed as proposed “Paris should conclude that Israel has emerged from a common conception of democracy.” Biden administration officials, from President Joe Biden and Secretary of State Antony Blinken to National Security Advisor Jake Sullivan (in private) and Ambassador to Israel Tom Nides, have been remarkably vocal on an ostensibly domestic Israeli issue. Democratic lawmakers have followed suit.

Yet the issue has exposed yet another partisan divide over Israel in America. To wit, no Republican officials have come out to warn of the imminent blow to the democratic “shared values” that both countries frequently tout. And while The New York Times and The Washington Post have warned of these moves, The Wall Street Journal has found the real culprit in Israel’s democratic deficiencies: Israel’s Supreme Court itself.

To be sure, there is room for reform in Israel’s constitutional system. It would start, however, with regulating the function of the legislature. Israel’s first Knesset was elected in 1949 as a Constituent Assembly. Unable to agree on basic aspects of the constitution, it opted instead for the gradual legislation of “Basic Laws” — articles of a constitution of sorts. Unlike a constitution, however, Basic Laws can be swiftly changed by a small majority, as the Netanyahu coalition is now doing with “Basic Law: The Judiciary.”

If a serious reform placed proper limits on legislative power and institutionalized the judiciary’s role as a brake of last resort, it could then also include sensible limits to judicial review, which would be less needed. None of this is part of the Netanyahu-Levin plan. Indeed, many of the critics of “judicial activism” in the past have now come out vociferously against it.

Trust me, I’m Bibi

Netanyahu, mostly in English, has rebutted his critics with two main lines of argument: First, other Western democracies have override rules too, notably Canada. The comparison is extremely weak, however. The Canadian override clause does not apply to basic rights, and is primarily a matter of provincial discretion vs. federal decisions, an irrelevant issue in Israel. The proposed system would be “an extreme outlier from a comparative [international] perspective,” in the official opinion of the legal advisor to the Knesset Judiciary Committee, Gur Bligh. “The arrangement would severely damage the principle of separation of powers … which is a core element of a democratic system,” he wrote. The Israeli attorney general, a civil servant, agrees.

Second, and more fundamentally, Netanyahu’s argument boils down to: Trust me, I won’t abuse my power. In a recent online Q&A, Betzalel Smotrich, the far-right minister of finance, similarly answered a query asking who guarantees that minority rights will be respected in the new system. His answer was simple and telling: “I do.”

Therein lies the essence of Netanyahu’s majoritarian revolution: Minority rights will be protected by the majority’s benevolence. That contradicts a core element of democracy, of course: Regardless of the ruler’s intentions, no one should have unchecked power. Power corrupts, and rulers eventually have successors whose intentions are yet unknown.

What, however, of the ultimate check on the ruler’s power: elections? They, surely, would provide the real check on executive power, as some have argued.

Without a check on legislative power, elections too could easily be undermined, even without dramatic steps to abolish them. For example, a far-right coalition might simply require prospective candidates to pledge allegiance to Israel as “a Jewish and democratic state,” the standard definition of Israel in most of its own legal phrasing. The vast majority of Jewish Israelis would readily do so, while most of the parties representing Arab citizens of Israel would find this unacceptable, leading to election boycotts and guaranteeing a right-wing majority.

Some have also argued that in Israel’s multiparty system, agreement among a majority in parliament requires enough compromise to nullify the need for additional checks on legislation. In fact, even American parties in a two-party system are (pre-election) coalitions of factions necessitating compromise. However, frequently, in all democracies, majorities exist that would readily curtail the rights of minorities, especially in the context of active national conflict as in Israel. Indeed, the Arab minority in Israel rarely has much say at all in majority decisionmaking and, moreover, Israeli executive decisions also affect the daily lives of millions of Palestinians in the West Bank who are not citizens at all. The court has hardly been exemplary in protecting Palestinian rights, but without it, there would be even less recourse over executive decisions.

It is about you

Israel’s historic drama matters to anyone interested in the flourishing of democracy anywhere. At its core, there is something annoying to the majority about judicial review: It is only needed when the majority is abusing its power. Annoying, that is, until the majority is abusing your rights. The global populist wave of the past decade has pitted temporary and often imaginary majorities against amorphous “deep states,” elites, or judiciaries. The power of bureaucracies, elites, and courts should indeed be limited, but their function is vital to democracy.

The demos in “democracy” is the people — all of them — not merely the majority. Republics are things of the public — all of it. Democratic rule requires a balance between the will of all people. This is never easy, and there is, by mathematical necessity, no perfect way to aggregate all preferences. Of course, democracies generally give, as they should, a right of way to majority will. But minority is part of the demos as well, no matter if it consists of 49.9 percent of the population or merely one individual. Unchecked, unbridled majoritarianism is nothing more than tyranny of the majority.