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Judicial Review: The Constitutional Conundrum in Israel

In February 2023, I wrote a short article explaining the legal questions at the core of the political debate in Israel. When judicial review became a hot topic the following month, the issues within Israel’s politicians become more controversial. And there is no clear end in sight.

Recently, Israeli Prime Minister Benyamin Netanyahu, postponed the legislation process to allow for talks between opposition leaders and his coalition to reach a compromise. These talks will occur under the auspices of the Israeli president, Yitzchak Hertzog, and the question on everyone’s mind is: What will happen if no agreement is reached?

Israel’s Supreme Court and Judicial Review

The question at hand is the scope of judicial review in Israel. The Israeli Supreme Court examined two elements of laws passed in the 1990s. First, the Court deemed these elements constitutional laws (in a country without a constitution) and – secondly – it equated them with judicial review.

Judicial Review in the United States

For the American reader it is useful to compare this situation to one of the cases that created constitutional law as we know it. Marbury v. Madison (1803) was a case in which the supreme court was asked to force President Jefferson to accept a nomination made by President Adams’s administration in the last day of their office. Chief Justice John Marshal had the right to do so according to a law passed a few years before. Marshal found a solution, he stated that the court has the power to review laws and strike them if they contradict the constitution, the supreme law of the land. This power of judicial review became the foundation of constitutional law. 

Israel’s Policy Compared to America’s Policy

However, beyond the similarity between Marbury v. Madison there is one point of difference that is crucial. The Israeli Supreme Court used judicial review much more than the U.S. Supreme Court did after it took the power of judicial review. To be sure the Supreme Court was asked to strike down federal legislation many times after the Marbury v. Maddison decision in 1803. As you can see in the data collected by Congress the court was asked many times to exercise this power but it was used for decades only in regard to state legislation.

In 1803, then Chief Justice Marshall knew this controversial action might have a backlash from the executive branch. In Marbury v. Madison, Marshall chose to strike down a law that gave his court power and – by doing so – signaled to then President Thomas Jefferson that this new power of judicial review (which is not mentioned in the U.S. Constitution) is not a threat to the president’s executive power.

Scott v. Sanford

In 1857, the U.S. Supreme Court, with its landmark (but extremely controversial) decision in Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), vacated the Missouri Compromise which had prohibited slavery within the Louisiana Territory north of 36’30′ latitude line (excluding  Missouri). In the Scott v. Sandford case, the U.S. Supreme Court again found an act of Congress unconstitutional and – with its decision – slavery was upheld in all U.S. territories, U.S. citizenship was denied to Black people, and a process began which culminated with the U.S. Civil War.

The Israeli Supreme Court has used judicial review much more broadly.  In fact, it has used judicial review 20 times since its initiation in 1997. A report by the Israeli Institute for Democracy, states that judicial review was mainly used in cases that were not overly political. While that might be true, that is not the point. The Israeli Supreme Court is much more approachable than similar tribunals in the West. The court hears many thousands of appeals each year and makes decisions in administrative law cases – regularly overriding decisions by the executive branch. This has caused the Court to be seen as a liberal enclave. The political color of the Court has made it an institution identified with the Israeli left/liberal political wing, while its relative lack of judicial restraint put it in the middle of this political crisis.  

The Demonstrations and The Hiatus

In the past 12 weeks, the opposition in Israel was able to rally many to join mass demonstrations against the judicial reform. According to The New York Times: “For weeks, protesters have taken to the streets to oppose the government’s plan to overhaul judicial rules. The discontent intensified on Sunday after Prime Minister Benjamin Netanyahu fired his defense minister, who had criticized the plan for causing turmoil within the military. After a nationwide work stoppage that brought many services to a halt and snarled air traffic on Monday, Mr. Netanyahu announced a delay in the judicial legislation to allow for negotiations and a possible compromise between his ruling coalition and the opposition parties.”

These protests in the world of Israeli politics continue to be portrayed on both sides of the debate with melodramatic rhetoric that made this discussion, (much like almost any other debate in Israeli politics), a manifestation of the largest question concerning Israeli identity, i.e., the role of religion, liberalism etc. And again, as per usual in Israeli politics, tensions run high and fast. So, Netanyahu decided on a hiatus to allow talks to take place between representatives of the coalition and the opposition under the auspices of the Israeli president Yitzchak Hertzog. But do the sides have the will to reach an agreement on judicial review?

Yair Lapid and Binyamin Gantz

The issue really comes down to Netanyahu on the coalition side and two people on the opposition side: Yair Lapid and Binyamin Gantz. Netanyahu, it seems, has seen enough of the demonstrations and seemingly has control over the far-right coalition members who pushed this judicial overhaul. With Gantz and Lapid, it seems that Gantz is interested in coming to an agreement – a move that will situate him as the responsible leader of the opposition and the most likely person to become Israel’s prime minister in the future.

Gantz seems to understand that the euphoria among the opposition is premature and based on media hype more than anything else. While the polls show the opposition gaining momentum, Gantz is smart enough to understand that such polls are often skewed or incorrect, and he knows that the deadlock among the Israeli electorate is likely to remain the same. He also understands (as a former Chief of Staff of the Israeli Army) that pushing the coalition too much with a false sense of security might lead the coalition – and its supporters – to use the same mass-demonstration tactics to push the overhaul.

More questions surround Lapid. To some he sounds like some leaders in the far left who think Netanyahu is already finished and that the victory is in the grasp of their hands. Lapid, who served as Prime Minister from Jul. 1 to Dec. 29, 2022 – before losing the election – undoubtedly wants a return to the prime minister’s office. However, he may be overestimating his favorable media coverage and the recent polls. Lapid, as I have written here before, often makes decisions based on public opinion and is often led too much by public sentiment. As such, Gantz may well be the in a position to take up the role of next Israeli Prime Minister. 

Ilan Fuchs

Dr. Ilan Fuchs is a scholar of international law and legal history. He holds a B.A. in Humanities and Social Science from The Open University of Israel and an M.A. in Jewish history from Bar-Ilan University. Ilan’s other degrees include an LL.B., an LL.M. and a Ph.D. in Law from Bar-Ilan University. He is the author of “Jewish Women’s Torah Study: Orthodox Education and Modernity,” and 18 articles in leading scholarly journals. At the University, Ilan teaches courses on international law while maintaining a law practice in several jurisdictions.

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