Beautiful Virgin Islands

Monday, Oct 06, 2025

0:00
0:00

Opinion | Israel’s Supreme Court Claims a Veto on Democracy

This case is a timely illustration that the opposite is true. No judiciary in the world has as far-reaching powers over government as Israel’s. The court assumed these powers in recent decades without authorization from lawmakers or a national consensus, and there is no reason they should be unalterable.
Israel’s Supreme Court last week invalidated the ministerial appointment of Aryeh Deri, leader of one party in the new governing coalition. The ruling didn’t even pretend to be interpreting Israel’s Basic Laws, which lay out the basic structure of government. The Knesset had specifically passed a law authorizing someone in Mr. Deri’s situation (he had pleaded guilty to criminal charges) to hold cabinet office. But the court said it would be “unreasonable” for Mr. Deri to be a minister.

In other words, it canceled the prime minister’s appointment of a cabinet member on grounds that it was technically legal, but gross - a kind of impeachment by judiciary.

The new government’s proposed judiciary reform has provoked pushback from the Biden administration and others on the ground that it threatens the rule of law. This case is a timely illustration that the opposite is true. No judiciary in the world has as far-reaching powers over government as Israel’s. The court assumed these powers in recent decades without authorization from lawmakers or a national consensus, and there is no reason they should be unalterable.

Judicial review—the ability of a court to declare that a law violates a country’s constitution—is an American invention. Israel doesn’t have a constitution. The court assumed that power in 1995, when it proclaimed that the Knesset had given it the power to strike down laws. The 1992 law under which the court claimed that authority passed 32-21. A majority of the 120-member Knesset didn’t show up to vote, not having known the court would later claim the law as a quasi-constitution.

This was only one step in the court’s power grab. It gradually eliminated all restrictions on justiciability and standing, allowing it to rule on any issues in public life whenever it chooses, without the constraint of lower-court proceedings or fact-finding. It employed the doctrine of “reasonableness” as a free-standing basis to block government action, including the government’s makeup. And the court has claimed authority to decide whether any new Basic Laws, or amendments to old ones, are valid, ending the charade that it is subordinate to law.

The reform proposals wouldn’t undermine judicial independence and would make the Israeli court more like its American counterpart. One measure would abolish the “reasonableness” and limit the court to blocking government action that violates the law, not its policy notions. Another would increase the Knesset’s involvement in judicial appointments but still comes far short of America’s purely political appointment process. The reform package would require expanded panels and a supermajority of the court to strike down legislation. In the U.S., Congress has regulated the jurisdiction and composition of judicial panels to raise the bar for striking down statutes.

The most controversial proposal would allow the Knesset, by a 61-vote majority, to suspend a Supreme Court nullification of a statute. A similar procedure exists in Canada, and in Israel under one basic law. The override seems odd to Americans because Congress is bound by the Supreme Court’s constitutional interpretations. But Congress is free to change a statute if it disagrees with the court’s interpretation, and Israel’s Supreme Court is interpreting statutes. When federal courts strike down laws under the U.S. Constitution, as Chief Justice John Marshall put it, they uphold the “supreme will” of the people—embodied in the supermajority required for the Constitution’s adoption—against momentary departures from it. Israel’s court, lacking a supermajoritarian constitution, doesn’t have such a justification. Why should a law passed with 32 Knesset votes trump one passed with 61?

The proposed override clause would be less effective than its proponents and critics think. It won’t stop the Supreme Court overreach—it will encourage it. Israel’s Supreme Court hears roughly 10,000 petitions a year and can swamp the Knesset with its rulings, while override bills would go through the cumbersome legislative process. And the Knesset faces the unique check of extraordinary international pressure: Each potential override will be a diplomatic incident.

Critics of the judicial reform argue that while U.S. lawmaking involves two chambers and two branches of government, the court is the only check on the unicameral Knesset. But much of the time the legislative and executive branches of U.S. government are controlled by the same party and act in lockstep. Moreover, the Knesset has a major check the court lacks: elections, which happen roughly every 2½ years. Arguments against reform that invoke the U.S. separation of powers actually demonstrate the need for change: The Supreme Court is all checks, no balances.

Others claim the current power of Israel’s high court is necessary to protect minority rights. This is a red herring. The court’s most notorious decisions, like the Deri case, are about structural issues. If Israel wasn’t a dictatorship of the majority before the court claimed these powers in 1995, it won’t become one now.

Those still troubled should be reassured that the reforms can be immediately reversed by a new government, further refuting claims that they would constitute an end to democracy. The reformers understand that their government shouldn’t have the last word on the structure of the political system. Their opponents, on the other hand, seem to believe that a system created by a small elite is unalterable holy writ.



* Mr. Kontorovich is a professor at George Mason University’s Scalia Law School and a scholar at the Kohelet Policy Forum in Jerusalem.


# Yariv Levin # Amir Ohana # Shlomo Karhi # Daniel Friedmann # Ruth Gavison # The Reagan Institute # Louis D. Brandeis Center for Human Rights # Kohelet Policy Forum
Newsletter

Related Articles

Beautiful Virgin Islands
0:00
0:00
Close
Munich Airport Reopens After Second Drone Shutdown
France Names New Government Amid Political Crisis
Trump Stands Firm in Shutdown Showdown and Declares War on Drug Cartels — Turning Crisis into Opportunity
Surge of U.S. Billionaires Transforms London’s Peninsula Apartments into Ultra-Luxury Stronghold
Pro Europe and Anti-War Babiš Poised to Return to Power After Czech Parliamentary Vote
Jeff Bezos Calls AI Surge a ‘Good’ Bubble, Urges Focus on Lasting Innovation
Japan’s Ruling Party Chooses Sanae Takaichi, Clearing Path to First Female Prime Minister
Sean ‘Diddy’ Combs Sentenced to Fifty Months in Prison Following Prostitution Conviction
Taylor Swift’s ‘Showgirl’ Launch Extends Billion-Dollar Empire
Trump Administration Launches “TrumpRx” Plan to Enable Direct Drug Sales at Deep Discounts
Trump Announces Intention to Impose 100 Percent Tariff on Foreign-Made Films
Altman Says GPT-5 Already Outpaces Him, Warns AI Could Automate 40% of Work
Singapore and Hong Kong Vie to Dominate Asia’s Rising Gold Trade
Trump Organization Teams with Saudi Developer on $1 Billion Trump Plaza in Jeddah
Manhattan Sees Surge in Office-to-Housing Conversions, Highest Since 2008
Switzerland and U.S. Issue Joint Assurance Against Currency Manipulation
Electronic Arts to Be Taken Private in Historic $55 Billion Buyout
Thomas Jacob Sanford Named as Suspect in Deadly Michigan Church Shooting and Arson
Russian Research Vessel 'Yantar' Tracked Mapping Europe’s Subsea Cables, Raising Security Alarms
New York Man Arrested After On-Air Confession to 2017 Parents’ Murders
U.S. Defense Chief Orders Sudden Summit of Hundreds of Generals and Admirals
Global Cruise Industry Posts Dramatic Comeback with 34.6 Million Passengers in 2024
Trump Claims FBI Planted 274 Agents at Capitol Riot, Citing Unverified Reports
India: Internet Suspended in Bareilly Amid Communal Clashes Between Muslims and Hindus
Supreme Court Extends Freeze on Nearly $5 Billion in U.S. Foreign Aid at Trump’s Request
Archaeologists Recover Statues and Temples from 2,000-Year-Old Sunken City off Alexandria
China Deploys 2,000 Workers to Spain to Build Major EV Battery Factory, Raising European Dependence
Speed Takes Over: How Drive-Through Coffee Chains Are Rewriting U.S. Coffee Culture
U.S. Demands Brussels Scrutinize Digital Rules to Prevent Bias Against American Tech
Ringo Starr Champions Enduring Beatles Legacy While Debuting Las Vegas Art Show
Private Equity’s Fundraising Surge Triggers Concern of European Market Shake-Out
Colombian President Petro Vows to Mobilize Volunteers for Gaza and Joins List of Fighters
FBI Removes Agents Who Kneeled at 2020 Protest, Citing Breach of Professional Conduct
Trump Alleges ‘Triple Sabotage’ at United Nations After Escalator and Teleprompter Failures
Shock in France: 5 Years in Prison for Former President Nicolas Sarkozy
Tokyo’s Jimbōchō Named World’s Coolest Neighbourhood for 2025
European Officials Fear Trump May Shift Blame for Ukraine War onto EU
BNP Paribas Abandons Ban on 'Controversial Weapons' Financing Amid Europe’s Defence Push
Typhoon Ragasa Leaves Trail of Destruction Across East Asia Before Making Landfall in China
The Personality Rights Challenge in India’s AI Era
Big Banks Rebuild in Hong Kong as Deal Volume Surges
Italy Considers Freezing Retirement Age at 67 to Avert Scheduled Hike
Italian City to Impose Tax on Visiting Dogs Starting in 2026
Arnault Denounces Proposed Wealth Tax as Threat to French Economy
Study Finds No Safe Level of Alcohol for Dementia Risk
Denmark Investigates Drone Incursion, Does Not Rule Out Russian Involvement
Lilly CEO Warns UK Is ‘Worst Country in Europe’ for Drug Prices, Pulls Back Investment
Nigel Farage Emerges as Central Force in British Politics with Reform UK Surge
Disney Reinstates ‘Jimmy Kimmel Live!’ after Six-Day Suspension over Charlie Kirk Comments
U.S. Prosecutors Move to Break Up Google’s Advertising Monopoly
×