How to Understand the Groundbreaking Decision of Israel’s Supreme Court

In a stunning 8-7 decision, the Israeli Supreme Court struck down the Knesset’s “Reasonableness Law,” a new “Basic Law ” that was intended to limit the court’s ability to exercise oversight over Knesset legislation.

This is the first time in Israeli history that the Court has struck down a Basic Law, meaning that, ironically, the first concrete effect of Prime Minister Netanyahu’s judicial reform efforts have been an increase in the Supreme Court’s powers. And a vast majority of the Supreme Court agreed that justices do have the power to strike down Basic Laws in the future.

Though it may seem less dramatic than the ongoing war against Hamas, hundreds of thousands of protesters recently took to the streets on this very topic, and this Supreme Court decision will impact the lives of Israelis long after the war is over. Here’s what you need to know.

Israel has no constitution

Israel’s lack of a constitution means that its political structure is still evolving. In the United States, the Constitution is the primary legal power and the court system is empowered to strike down any legislation or executive order that violates it as “unconstitutional.” The only way to overrule the US Supreme Court is through a Constitutional amendment, which can be passed only through a “super majority” vote: consisting of 75% of all the state legislatures.

Without a constitution, there can be no such thing as  “unconstitutional.” Instead, Israel has the “Basic Laws,” a set of legislation that governs individual rights and balance of powers: a kind of equivalent of America’s Constitutional amendments but with one key difference — Israel’s Basic Laws can be changed via a simple majority vote in the Knesset.

This means that any coalition which controls the Knesset can theoretically exercise unlimited power, including over the Supreme Court. How then, does Israel’s Supreme Court provide the necessary checks and balances?

For one thing, as part of its decision this week, Israel’s Supreme Court ruled 12-3 that it does indeed have the power to strike down a Basic Law, a fundamental difference from the United States where the Supreme Court is subordinate to the Constitution.

In addition, for years the Israeli Supreme Court has struck down executive orders and administrative decisions that it deems “unreasonable.”  (This does not relate to overturning actual laws, which is done via a different mechanism.)

Prime Minister Benjamin Netanyahu and other proponents of this judicial reform refer to the Reasonableness Standard as an excessive and unstructured power in the hands of un-elected judges. Indeed, the power to define any law as “unreasonable” rather than specifically unconstitutional could allow Israel’s Supreme Court to overstep its proper powers.

Yet the power of the legislature to effectively change the country’s very structure by passing Basic Laws is also excessive. Until now, these two excesses had somewhat sloppily, but effectively, canceled each other out: the very “balance of chaos” that characterizes the miracle of Israeli society.

In March of 2023, Israeli President Herzog suggested a compromise that would limit the Court’s ability to strike down laws based on “reasonableness,” but would also limit the Knesset’s ability to pass Basic Laws without a super-majority vote, thus maintaining the necessary balance of power and moving Israel closer to an American style system. However, the compromise was rejected.

What happens now?

Members of the current ruling coalition have vigorously objected to the Court’s decision, in some cases stating that they would “not accept” it, though it is unclear exactly what action the legislature could take in that regard.

The Court itself is already changing, with some of its members retiring and no clarity as to who will replace them. Similarly, the disastrous intelligence and security failures of October 7 will probably put an end to the careers of many in Israel’s political leadership, though such transitions will likely occur only after the ongoing war is complete.

So there remain a lot of unknowns on the political level as to how this decision will play out in the future, or who will be in power when it does, but one thing is certain: Israel’s Supreme Court has decided by a wide margin that it can, and has demonstrated through its actions that it will, strike down even a Basic Law when the Court feels it is appropriate to do so.

Young Democracy

In its first 100 years, the United States saw the infamous Sedition Act, an actual gun duel between the Vice President and the Secretary of the Treasury, and of course, secession and the American Civil War.

In its first 200 years as an emerging democracy, Britain faced several civil wars and rebellions, as well as the society wrenching Reformation.

At only 75 years old, Israel is actually unusually stable compared to the turbulent early histories of most democracies, Israel’s arguments have been passionate but peaceful, and its laws are still evolving. While it is completely appropriate to feel care and concern over Israel’s evolution, it is not yet time to assume catastrophe.

Daniel Pomerantz is the CEO of RealityCheck, a think tank dedicated to deepening public conversation through robust research studies and public speaking. He previously worked as a lawyer in the United States, including in the field of international law. Daniel lives in Tel Aviv, Israel, where he lectures at Reichman and Bar Ilan Universities, to soldiers of the IDF and the US Marine Corps, and frequently appears on international media. You can learn more about RealityCheck at: www.RealityCheckResearch.org.

The post How to Understand the Groundbreaking Decision of Israel’s Supreme Court first appeared on Algemeiner.com.