Israel’s Juristocracy–And Ours

Calvert Institute, July 30, 2023

Israel’s Juristocracy–and Ours

by George Liebmann

The conflict over the power of Israel’s Supreme Court has sharply divided Israeli society. The Likud party and religious conservatives contest the powers of a self-perpetuating court which recognizes few limits on its power to impugn both legislation by the Knesset and executive action.

The stakes are higher in israel than they woiuld be in this country because Israel lacks other checks on Parliament and the executive chosen or tolerated by it. As in all parliamentary systems, there is no separation of powers between the legislature and the executive as respects personnel. There is also no bi-cameralism, and no federalism. The resulting distempers divide even the military, and endanger the State.

The exuberance of the Israeli judiciary, and that of some other countries, including Canada and South Africa is, as Judge Robert Bork observed in his later years, due to excessive admiration for the American Supreme Court, and particularly of the Brown v. Board of Education decision. That decision, because of its lack of craftsmanship more than its result, may have done more harm than good even in the United States. When foreign courts abandon corrective justice to enforce preexisting individual rights in favor of distributive justice to uplift group interests, they head rapidly for trouble.

The critics of judicial power, in Israel as well as in Poland and Hungary, are fashionably depicted as enemies of democracy, as some of them undoubtedly are. But those with misgivings about what the British scholar Martin Loughlin has called “constitutionalism” as distinct from “constitutional democracy” have much on their side. The judiciary in some countries has allowed itself to become the guardian of the preferences of a secular, urban, and anti-clerical ‘New Class” of professionals, even intervening in matters of criminal justice to that end. But the judiciary loses authority when it takes up the cudgels against public morals or against those whom the electorate, however unwisely, has chosen. Political distempers should ordinarily find political cures.

The roots of Israel’‘s problems are instructive, and have lessons for the United States.

The Basic Law adopted by the founders of Israel shortly after its independence was a provisional enactment, not one based on considered deliberation. The new state took over the Constitution of the World Zionist Congress. That, in turn, was derived from the admiration of Theodore Herzl, the founder of Zionism, for the French Third Republic, where he had been a lobby correspondent in the Chamber of Deputies.The principal feature of the Third Republic’s Constitution, as with that of the French Fourth Republic and the Weimar Republic in Germany, was proportional representation in elections for an almost all-powerful lower house of the Parliament. The French Republics thus organized met their doom in 1940 and 1958; their German counterpart in 1933.

Proportional representation, there as in Israel, produced weak and unstable coalition governments, each containing veto groups making decisive action impossible. For good measure, the leaders of the major party groupings, being chosen from party lists, became increasingly geriatric, a prominent feature of Israeli governments, many of whose leading ministers have been around for 40 or 50 years. The consequence is legislative impotence and usurpation of what should be legislative powers by the Prime Minister’s entourage and the Court.

Similar tendencies, with less obvious causes are visible in the United States. The US and UK have retained first-past-the post systems, sparing themselves the worst effects of proportional representation and somewhat enhancing the independence from party control of elected legislators. However the second Voting Rights Act, including the most recent decision under it, has institutionalized a form of proportional representation in all states in which there are large ethnic minorities, by encouraging and indeed requiring, the ‘packing’ of minority voters into a few districts to assure their control of them. The effect of this is to create ideologically polarized legislatures, compounded by the gerrymandering that was what Justices Frankfurter and Harlan predicted would be the bitter fruit of the resapportionment cases. Thus we now have virtually unchanging Congressional delegations consisting of people who the late Professor Lani Guinier would have considered ‘authentic’ Blacks, together with an offsetting group of whites too many of whom share the newly inflamed prejudices of the Oath Keepers and Proud Boys.

Robert Taft once observed that over-use of the filibuster would discredit Congress, and that in consequence he always eventually voted to cloture debate in the Senate. The Senate in his era was more moderate and independent of national party control than the polarized Senate is now, in consequence of the mis-conceived 1973 campaign finance ‘reform’ limiting local individual contributions in favor of contributions in fixed amounts ‘;bundled’ in Washington. We thus have seen here efforts to end-run the Congress and the States by abuse of Presidential and judicial power, extending in the rent and college loan moratorium cases even to the Congressional power of the purse. If we are not to duplicate the Israeli experience, juristocracy must be resisted, as must over-delegation by the legislature, and campaign finance rules must be re-adjusted to undo, so far as possible, the last half-century’s nationalization of campaign finance. A Congress including independent-minded Senators is an agent of compromise; one composed entirely of the owned servants and delegates of interest groups is not. Israel’s chief lesson for Americans is that identity politics leads to a weak legislature and attempts at corruption and rule by decree.

The writer is the author of books on law and history, most recently The Tafts (Twelve Tables Press, 2023)

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