Israel has done pretty well overall (albeit not always) in working out its internal problems over the years, and we are confident that the Israelis will work their way through the contentious judicial reform debate gripping the country. We are therefore astonished by the success of the left in Israel and in America, including some non-Orthodox clergy and secular communal organizations, in promoting the notion that the Netanyahu government’s plan to diminish the power of the Supreme Court vis-à-vis the Knesset will mark the end of Israeli democracy as we know it. In reality, they have been able to draw attention away from some obvious and serious anti-democratic features of the current system. Again, it is for the Israelis to decide where to go with its government, but simply stating the facts is properly within bounds.
One issue that has received scant attention, even though it is a key consideration: Under the current setup, there is no limit to the issues over which the Supreme Court of Israel can assume jurisdiction. Thus, unlike in the United States, it will take cases brought by parties with no standing. The result is that the Court’s purview is open-ended. Indeed, this imbalance between the Court and other branches of government has led to a blurring of the distinction between legal issues which traditionally are dealt with in the courts and policy issues which are ordinarily the job of elected heads of governments and legislatures. To this anomaly, add that the Court has arrogated to itself the power to invalidate acts of the Prime Minister and the Knesset based on its own notion of what is reasonable.
The plain facts are that the need for checks and balances was already glaring, even if the proposed reforms may arguably end up creating new ones.