Is a Simple Majority Override Off the Table?

Aryeh Deri (Left) with Isaac Herzog (Wikipedia)

I was recently forwarded another editorial by IJN editor and publisher, Rabbi Hillel Goldberg. Therein he makes the case for the judicial reform Israel’s right wing government is trying to accomplish. Which has in part already been passed.

I believe that any fair minded person – even those on the left would admit that Israel’s Supreme Court needed some tweaking to make it more just. The problem is in how far that tweaking needs to go. The right wants to basically remove all of the court’s authority to declare unconstitutional any law passed by a sitting Knesset. The left wants the court to continue protecting minority rights by rejecting any legislation it deems ‘unreasonable’ - and possibly hurting them. As should be obvious, reasonableness is on the eye of the beholder. So that what the left sees as unreasonable might be considered reasonable by the right. And vice versa. 

The legislation that just passed removed perhaps that most controversial element from the court. 

The motive behind the right wing push to reform the Supreme Court was based on the court removing Aryeh Deri from heading a cabinet ministry  When Netanyahu gave it him, it was against the law - which does not allow convicted felons to hold high office. That court has upheld that law as a reasonable one. 

(I find that law to be bit that incongruous with US law. Based on commentary have seen or heard from a variety of  knowledgeable sources on constitutional law – my understanding is that the US constitution is silent on whether a convicted felon can run – even for President. 

If that’s true, it means that even if Trump is convicted of trying to overthrow the results of last Presidential election and sentenced to prison, he can run. And if he wins, he becomes the President.  Removing ‘reasonableness’ from the court’s ‘arsenal’  will restore Deri’s position as a cabinet minster - the same right in Israel that Trump has in the US. The wisdom of that being beside the point.)

As I have said many times, compromise is the best solution. Even if the right might have a superior argument for their position (which is far from certain) the fact that there are millions of Israelis from just about all sectors opposing it with massive demonstrations of protest - threatening to hurt Israel’s security and the economy, it cannot be ignored or dismissed.

Compromise should  allow the court to retain its power to overrule a law passed by the Knesset, but restrict it from applying their own ‘reasonableness standard’ in doing so. How that would play out in reality is beyond my pay-grade. 

Be that as it may, Rabbi Goldberg has made very salient observations. among them are the following:: 

1. Courts are supposed to rule on the basis of law, not on the basis of “reasonableness,” which, of course, is subjective; and, in the case of Israel’s highest court, largely predictable. The court is unabashedly ideological and one-sided, i.e., secular.

2. The “reasonableness” standard is relatively new in Israel’s history. It was hardly a part of its court system for roughly the first 45 years of Israel’s existence. It did not become entrenched in the court system by virtue of a vote of the populace or the Knesset. The frequent use of the reasonableness standard is a prerogative of the High Court itself. It granted itself this power. This power does not derive from an Israeli constitution, which does not exist. The court unilaterally usurped this power.

3. The reasonableness standard does not emerge as limited in application to a specific case. This reasonableness standard is universal, applied by the court whenever it chooses to any case it chooses. This is an unprecedented arrogation of power to and by the court. This is a derogation of democracy. The law that Israel just passed does not inherently undermine democracy, it strengthens it.

4. The current law, as passed, is but one segment of the much more ambitious program that was originally announced, and that has since been pared down. No longer, for example, is the government pushing for the right of the Knesset to overturn, by majority vote, any ruling of the Supreme Court. The idea that the Knesset can overturn laws protecting minorities is off the table. 

That last one should not be overlooked. No longer, for example, is the government pushing for the right of the Knesset to overrule a Supreme Court decision by a simple majority vote. 

This should calm the fears that minority rights will not be protected from the ‘tyranny of the majority’. That is a good thing. If true, then these protests should end. If they don’t, then  one must question what the real motives of the left really are.