Israel's Supreme Court is becoming increasingly involved in political and electoral issues. Pictured: Supreme Court justices in session on May 4, 2020, in Jerusalem, Israel. (Photo by Abir Sultan/Pool/AFP via Getty Images)
The book of Ruth begins with a cautionary description: "In the days when judges ruled, there was famine in the land." Though the Bible suggests no causal relationship between the judiciary ruling the people and bad things happening to them, history suggests that governance by unelected Platonic guardians is anathema to democracy.
Judges have an important role to play in a democracy -- indeed under the American system of separation of powers, the unelected judiciary is a co-equal branch along with the elected legislative and executive branches. Despite (or perhaps because of) this high status, American judges have generally been cautious about exercising their power. They act only when there is an actual case and controversy and the litigant has "standing" -- that is, a personal stake in the outcome. They use these tools of judicial restraint to assure that they don't usurp the proper roles of the elected branches. Nonetheless, they are sometimes criticized for finding -- some say inventing -- constitutional bases for recognizing new rights, such as abortion or gay marriage.
In most parliamentary democracies, the judiciary is subordinate to the legislature (of which the executive is part), though they are generally somewhat independent. They rarely sit in judgement regarding laws enacted by Parliament or actions taken by the executive. This is especially true in countries that lack a written constitution. In the United States, the constitutional rulings of the Supreme Court are final, subject only to amending the Constitution, which is very difficult. But as the late, great Justice Robert Jackson reminded us about the power of the Justices "We are not final because we are infallible, but we are infallible only because we are final."
It is against this general background that the current situation in Israel can best be understood and evaluated. Israel is a parliamentary democracy with an independent judiciary headed by a Supreme Court. It does not have a written Constitution, but it does have a series of "basic laws" that are quasi-constitutional in nature. Unlike the United States Supreme Court, which is constrained by the requirements that there be an actual case and controversy and that the case be brought by someone with standing, Israel's Supreme Court declined to accept such constraints on its power. This has led to controversial decisions that some Israeli critics -- including some distinguished lawyers and academics -- believe exceed the proper authority of courts, while others believe these decisions have been essential to maintaining the rule of law.
Many of these decisions have imposed restrictions on military actions against Palestinian terrorists. These have been praised by human rights groups around the world as examples of how the rule of law should govern even the most challenging and difficult military decisions. As the former President of the Israel Supreme Court, Aharon Barak, put it: "Sometimes a democracy must fight with one hand tied behind its back. Nevertheless, it has the upper hand [because it preserves] the rule of law." But, in a vibrant democracy like Israel, an activist Supreme Court whose decisions directly impact the lives of its citizens should not expect to be immune from criticism by some of those citizens and politicians.
Passive courts -- those that limit their role to deciding traditional civil and criminal cases (contracts, robberies, etc.) -- rarely become the subject of political controversy. But activist courts often do. That's what happened in the United States during the FDR administration, when an activist conservative Supreme Court struck down parts of the New Deal, and during the Eisenhower administration, when an activist liberal Supreme Court struck down Jim Crow segregationist laws. And this is what is now happening in Israel, as its Supreme Court becomes increasingly involved in political and electoral issues.
Moreover, when the decisions of the High Court directly impact the lives of citizens, it should not be surprising that citizens, through their elected officials, seek to play a more active role in deciding who should serve as judges and justices. That is what happened in the United States, and that is what is happening today in Israel. Though this phenomenon is understandable, it is not necessarily desirable, because it threatens to politicize the process by which judges are selected, as it plainly has in the United States, and seems to be happening in Israel.
Were the Supreme Court of Israel to decide that Benjamin Netanyahu is legally prohibited from forming a government in which he served as prime minister because he is under indictment, it would be usurping the role of the Knesset (which has not enacted such a prohibition) and the electorate (which gave him plurality, knowing that he was under indictment), as well as undercutting the rule of law (which presumes indicted individuals innocent until and unless convicted). Such a ruling would throw the justices into the "political thicket" (to quote the US Supreme Court) and further politicize the manner by which justices are selected. It would be a self-inflicted wound on the independence and neutrality of the Supreme Court. Finally, it would give too much power to prosecutors and police officials to interfere with elections, by issuing indictments that might not result in convictions.
Alexander Hamilton characterized the judiciary as the "least dangerous" branch of government because it has neither the sword nor the purse. It relies for its authority on the "judgment," "integrity," "dignity" and "independence" of the judges who must be perceived by the citizenry as non-partisan and fair. When judges and justices intrude too deeply into electoral issues they risk being seen -- whether correctly or not -- as political, and subject to democratic accountability, which may endanger their independence. But when they remain too passive in the face of injustices, they risk diminishing their important role as the guarantor of the rule of law. It is a delicate balance to strike, but for the sake of democracy and the rule of law, it must be struck wisely, and perhaps somewhat differently, by each generation of judges. This is not the time to further politicize a great Israeli institution.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, November 2019. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.
This article was originally published in the Jerusalem Post and is reprinted here with the kind permission of the author.