{"id":107057,"date":"2023-09-13T17:05:09","date_gmt":"2023-09-13T15:05:09","guid":{"rendered":"http:\/\/www.reunion68.se\/?p=107057"},"modified":"2023-09-13T14:21:37","modified_gmt":"2023-09-13T12:21:37","slug":"21-05-93","status":"publish","type":"post","link":"https:\/\/www.reunion68.se\/?p=107057","title":{"rendered":"How Israel\u2019s Supreme Court can strengthen democracy"},"content":{"rendered":"
\"\"<\/a>How Israel\u2019s Supreme Court can strengthen democracy<\/a><\/strong><\/span><\/h5>\n

ROBERT SILVERMAN<\/strong><\/span><\/p>\n

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Chief Justice of Israel’s Supreme Court Esther Hayut at the hearing of the government’s “reasonableness” law, at the Supreme Court in Jerusalem, Sept. 12, 2023. Photo by Yonatan Sindel\/Flash90.<\/em><\/span><\/p>\n

On Tuesday, Israel\u2019s Supreme Court convened amid an atmosphere of heightened political tension to hear petitions asking it to strike down a recently-passed Knesset law. No ruling is expected imminently, but political compromise proposals by Israeli Prime Minister Benjamin Netanyahu and others indicate a growing concern with leaving the matter in the hands of the court.\u00a0<\/span><\/p>\n

Part of the new Israeli government\u2019s judicial reform package (and the only element enacted thus far), this law bars judges from using the \u201creasonableness standard,\u201d a defined principle in Israeli jurisprudence with established criteria, and one previously used to overrule as \u201cunreasonable\u201d both legislation and certain kinds of executive actions.\u00a0Both sides have taken to the streets to argue for or against these laws\u2019 effects on Israel\u2019s democracy.<\/span><\/p>\n

What may seem like dry material for a law review article on justiciability to outsiders is a hot-button political debate in Israel. Yet there is a solution available to the court that allows both sides to win in a way that also strengthens Israel\u2019s democracy.<\/span><\/p>\n

Israel\u2019s\u00a0Marbury v. Madison<\/em>\u00a0Moment<\/strong><\/p>\n

\u201cIt is emphatically the province and duty of the Judicial Department to say what the law is.\u201d<\/em>\u00a0\u2014 \u200aChief Justice Marshall in Marbury v. Madison, 5 U.S. at 177<\/span><\/p>\n

Israel is not the first democracy to face a political crisis over a supreme court\u2019s ability to review and strike down legislation. The United States, the world\u2019s oldest democracy, faced just such a crisis in the second generation after its founding, in the case of\u00a0Marbury v. Madison<\/em>\u00a0(1805).<\/span><\/p>\n

The story behind the\u00a0Marbury<\/em>\u00a0case illuminates a court\u2019s ability to establish its supremacy in interpreting the law, while at the same time limiting itself vis-\u00e0-vis the political branches of government. Thus it\u2019s worthwhile to tell the story behind the Marbury case.<\/span><\/p>\n

On March 4, 1801, Thomas Jefferson was inaugurated as the third president of the United States after a bitterly contentious election. Two days before, outgoing president John Adams, Jefferson\u2019s opponent in the race, had appointed nearly 60 of his supporters to federal positions and, on its last day in office, the outgoing Congress had confirmed the appointments\u00a0en masse.<\/em><\/span><\/p>\n

Jefferson refused to recognize these last-minute appointments, relying on the technicality that some of the commission documents had not been delivered to the appointees before the turn-over of administration on March 4. One of the appointments was of Maryland financier William Marbury as justice of the peace (a low-level judge) for the District of Columbia.\u00a0<\/span><\/p>\n

Marbury then sued Jefferson\u2019s Secretary of State James Madison to force the new administration to honor his appointment (at the time, part of the Secretary of State\u2019s job was to impress the Great Seal of State on official documents and have them delivered to the intended recipients).\u00a0<\/span><\/p>\n

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In\u00a0Marbury v. Madison<\/em>, the new Chief Justice John Marshall took on a politicized, bitterly personal case. He also had been appointed to the judiciary by President Adams; in his prior job as Adams\u2019 Secretary of State Marshall had sealed the very Marbury commission whose validity was now in dispute. Furthermore, Marshall and Jefferson were first cousins from Virginia and political rivals (Marshall had called Jefferson a shirker for sitting out the Revolutionary War in Paris on a diplomatic assignment.) Jefferson and Marshall had radically different visions for the future of this new country.\u00a0<\/span><\/p>\n

Marshall\u2019s opinion of the court in\u00a0Marbury<\/em>\u00a0was Solomonic. On the petition to allow Marbury to serve as a justice of the peace by having his commission delivered to him, Marshall ruled for the Jefferson administration.\u00a0The Supreme Court didn\u2019t have the authority to force an executive branch employee\u2014Secretary of State Madison\u2014to deliver the commission and swear in Marbury.\u00a0<\/span><\/p>\n

In ruling for Jefferson, however, Marshall also declared that a provision of the congressional law which set up the federal court system\u2014and which gave Marbury the jurisdictional basis for his petition to the Supreme Court\u2014was unconstitutional and thus invalid. Marshall thus asserted the court\u2019s right to strike down (or uphold) acts of the other two branches of government that were contrary to the U.S. constitution, a right that is nowhere found in the constitution itself.\u00a0<\/span><\/p>\n

Jefferson was not happy with this outcome. Though he had won the battle to prevent the last-minute appointments of Adams, Jefferson lost to Marshall on the larger principle of the judiciary\u2019s right to review the political branches\u2019 acts on grounds of constitutionality. That right may seem natural to us now, but it wasn\u2019t so at the time. Jefferson after all had drafted the Declaration of Independence. He thought of the constitution as mainly a political document like the Declaration, and denied that the courts should have a monopoly on interpreting either one.\u00a0<\/span><\/p>\n

Marshall had established in\u00a0Marbury<\/em>\u00a0what was later called the principle of judicial review. His holding is worth examining again in light of Israel\u2019s current debate.\u00a0<\/span><\/p>\n

Israel\u2019s lack of a constitution is not decisive<\/strong><\/p>\n

Marshall had a written constitution to rely on in establishing judicial supremacy in\u00a0Marbury v. Madison<\/em>. Israel doesn\u2019t have a constitution but only a series of Basic Laws addressing certain rights and governmental functions, each passed by the Knesset by simple majority vote, that are endowed with vague, quasi-constitutional status.<\/span><\/p>\n

After studying the history of Israel\u2019s attempts to draw up a constitution, however, I have concluded it isn\u2019t going to happen in the near term.\u00a0<\/span><\/p>\n

Here\u2019s some background: Israel\u2019s declaration of independence of May 1948 envisions a \u201cconstitution to be drawn up by a constituent assembly,\u201d and early Knesset sessions in 1950-52 addressed the issue. The main advocate for a constitution was right-wing opposition leader Menachem Begin, who saw it as protection for the rights of the minority political parties and minority groups more generally. The constitution\u2019s chief opponent was David Ben-Gurion, Israel\u2019s first prime minister and leader of the center-left Labor Party, who saw a constitution as infringing on the democratic rights of the majority.\u00a0<\/span><\/p>\n

Though these political positions are today reversed\u2014with the left now calling for a constitution and the right now opposing\u2014there is one constant element. The Orthodox religious parties, often the king-maker in Israeli governing coalitions, have uniformly opposed a constitution both then and now. For them, a Jewish state should have only one constitution\u2014the Torah.\u00a0<\/span><\/p>\n

Until such time as some widely respected Orthodox rabbis in Israel espouse a theology that allows for a secular constitution in a majority Jewish state (halachic precedents may exist), Israelis should expect the religious parties to continue to unite in opposition to a constitutional process.\u00a0So it isn\u2019t going to happen.<\/span><\/p>\n

Nor is a constitution necessary to resolve the current debate (though it would be helpful). Israel\u2019s Basic Law: The Judiciary of 1984 doesn\u2019t address the concept of judicial review, but then neither does the U.S. Constitution. Israel\u2019s Supreme Court established the general principle of judicial review of legislation back in 1995 (in the\u00a0United Mizrahi Bank<\/em>\u00a0v. Migdal Cooperative Village<\/em>\u00a0case). It has yet to be applied in cases involving Basic Law: The Judiciary, such as the one the court heard on Tuesday (and importantly, in future cases if other aspects of the government\u2019s judicial reforms are passed into law).\u00a0<\/span><\/p>\n

In\u00a0Marbury,\u00a0<\/em>Marshall found judicial review of legislative rules inherent in the \u201cprovince and duty\u201d of the judiciary. As he explained:<\/span>
\n\u201cThose who apply the rule to particular cases, must of necessity expound and interpret that rule.\u201d\u00a0<\/span><\/p>\n

Israel\u2019s Marshallian solution<\/strong><\/p>\n

Israel\u2019s Supreme Court has before it two major issues in the petitions to strike down the reasonableness law. First, should this controversial Knesset law be upheld as legal or should it be struck down? Second, can the Supreme Court even review this kind of law, which is an amendment to Basic Law: The Judiciary?\u00a0<\/span><\/p>\n

The Marshallian solution would first uphold the Knesset law which bars use of the reasonableness standard, thus giving the government a political win on the narrow issue. But on the second issue, Marshallian logic would reaffirm the key principle of the judiciary\u2019s supremacy in reviewing and potentially striking down any law passed by the Knesset, including a Basic Law, including Basic Law: The Judiciary. This would serve as a warning regarding the potential future of other elements of the government\u2019s judicial reforms, if they are passed into law.\u00a0<\/span><\/p>\n

The judicial review principle is critical to the independence of Israel\u2019s judiciary. But a specific judicial review standard is not, especially one vulnerable to criticism on grounds of subjectivity, such as \u201creasonableness.\u201d Using judicial review to uphold rather than strike down a government proposal would be an elegant way of allowing both sides to win in this debate.\u00a0<\/span><\/p>\n

Elegant Supreme Court decisions may not completely quell the political partisans in Israel, who have latched onto the government\u2019s judicial reforms as a talisman for wider social concerns, but that would be the subject of another article. Marshall didn\u2019t solve all of the crises in early America, though he did strengthen the judiciary while outwitting Jefferson in\u00a0Marbury v. Madison<\/em>.\u00a0<\/span><\/p>\n

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Originally published by The Jerusalem Strategic Tribune<\/strong>.<\/em><\/span><\/p>\n<\/div>\n

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ROBERT SILVERMAN<\/strong> – A former U.S. diplomat and president of the American Foreign Service Association, Robert Silverman is a lecturer at Shalem College, senior fellow at the Jerusalem Institute for Strategy and Security and president of the Inter Jewish Muslim Alliance.<\/em><\/span><\/p>\n

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How Israel\u2019s Supreme Court can strengthen democracy ROBERT SILVERMAN Chief Justice of Israel’s Supreme Court Esther Hayut at the hearing of the government’s “reasonableness” law, at the Supreme Court in Jerusalem, Sept. 12, 2023. Photo by Yonatan Sindel\/Flash90. On Tuesday, Israel\u2019s Supreme Court convened amid an atmosphere of heightened political tension to hear petitions asking […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[3],"tags":[26,24],"_links":{"self":[{"href":"https:\/\/www.reunion68.se\/index.php?rest_route=\/wp\/v2\/posts\/107057"}],"collection":[{"href":"https:\/\/www.reunion68.se\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.reunion68.se\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.reunion68.se\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.reunion68.se\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=107057"}],"version-history":[{"count":7,"href":"https:\/\/www.reunion68.se\/index.php?rest_route=\/wp\/v2\/posts\/107057\/revisions"}],"predecessor-version":[{"id":107072,"href":"https:\/\/www.reunion68.se\/index.php?rest_route=\/wp\/v2\/posts\/107057\/revisions\/107072"}],"wp:attachment":[{"href":"https:\/\/www.reunion68.se\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=107057"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.reunion68.se\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=107057"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.reunion68.se\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=107057"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}

Some analysts in Israel believe the solution is a constitutional process, in which the political parties in the Knesset would take their time in drafting and adopting a document by a super-majority that would decide, among other issues, the parameters of judicial review. In fact, back in January I also\u00a0recommended<\/a>\u00a0this solution. Certainly such a process would be more credible and democratic than the \u201cexperts commission\u201d appointed by Israeli President Isaac Herzog.\u00a0<\/span><\/p>\n