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Courting Controversy

MK Simcha Rothman wants the Knesset to reassert its primacy over the Supreme Court, and hand power back to the people

Photos: Eli Cobin, Flash 90

As the Netanyahu-led right-wing bloc prepares to implement a slew of security, economic and social policies, for MK Simcha Rothman there’s one overriding priority. Drawing on the inspiration of the American conservative right, the English-speaking lawmaker wants the Knesset to re-assert its primacy over the Supreme Court, and hand power back to the people

Simcha Rothman is evidence that appearances can be deceptive. Unlike some of Israel’s political celebrities who walk the Knesset’s corridors surrounded by a bevy of aides, when the bookish, mild-mannered lawmaker passes, heads don’t turn.

But what the visitors who pass him by don’t realize is that the 42-year-old MK could turn out to be one of the most consequential politicians of his generation.

That’s because for the last decade — and particularly since entering the Knesset in 2019 — he’s been at the forefront of a rightwing push to curb the outsize power of the country’s Supreme Court.

On a laundry-list of issues — fighting terror, the chareidi draft law, bringing chometz into hospitals on Pesach, deporting illegal migrants — the “Bagatz,” as Israel’s highest court is known, has acted in the name of human rights to strike down laws passed by a clear majority of the Knesset.

The pattern is clear: Asked to decide between Israel’s “Jewish” and “democratic” aspects, the Court consistently rules in favor of the secular, universalistic, and liberal.

The Supreme Court’s activism is the product of one man’s vision. In a series of groundbreaking rulings in the 1990’s, former Chief Justice Aharon Barak capitalized on Israel’s lack of a formal constitution and young legal tradition to expand the Court’s mandate at the expense of the legislative branch.

The result is that Israel’s highest legal body wields more power to make the country’s laws than any court across the democratic world.

Now, with the comeback of the right under Netanyahu, all that could change. Across the right-wing-religious coalition, there is broad acceptance that it’s time to rein in the Supreme Court’s activism via a “pisgat hitgabrut” or override clause — a law which explicitly rules that the Knesset is superior to the Supreme Court.

The fact that major legal reform is on the agenda at all is in part thanks to a long-running campaign by the Religious Zionist party’s Rothman. The Bnei Brak-born lawyer founded the Movement for Governance and Democracy, a non-profit which lobbies for restoring the Knesset’s primacy, in 2013.

Part of an ecosystem of right-leaning non-profits that draw inspiration from the American conservative movement, the think tank’s output ensured that Rothman’s name was attached to legislation even before he himself entered the Knesset.

He became the public face of the movement in 2019 when he published Mifleget Bagatz — the Supreme Court Party — a book that documents the judicial takeover in Israel.

Now slated to take over the Knesset’s influential Constitution, Law, and Justice Committee, Simcha Rothman is convinced that the unique political constellation — a homogeneous right-religious coalition — presents the right with the best chance in decades to level the legal playing field.

“In Israel, the people’s will is not being expressed — the majority can’t govern. The Court is progressive, and it takes Israel to where it thinks its laws should be,” he says. “Now is the time to act, because if not now, when?”

FOR THE FEW Chief Justice Aharon Barak had an elitist’s disdain for the collective wisdom of the masses

I think it’s fair to say after an election fought over security, a cost of living crisis, plus religion and state, that legal reform isn’t at the top of voters’ minds, and yet that’s what you are personally laser-focused on. Just what has the Supreme Court done that justifies a revolution?

What haven’t they done? Over a number of decades, with former Chief Justice Aharon Barak as chief engineer, the Court in Israel has usurped power from legislators. It was a judicial coup, which created a situation where the Knesset, which represents the will of the majority of the country’s voters, is no longer in charge.

Time and again, under coalitions from the right, center, and left, the government has passed laws that were then struck down by Bagatz. As my book’s subtitle says, the Court is now in charge.

And that means that we can’t fulfill our major campaign promise of “meshilut,” or restoring governance in a wider security sense, unless the Knesset is in charge.

That’s why we need an “override clause” to restore the situation to the way it was until 1997, when the Supreme Court took over.

In your book, you describe a strategic campaign of “usurpaziyah” — a particularly awkward Ivritization, by the way — that unfolded over a number of decades. Let’s retrace that process. How and why did it happen?

It all comes back to Aharon Barak who was the revolutionary, first as a law professor, then attorney general, then justice, and finally as chief justice.

In my book, I write about how already in the ’50s, Barak had spoken about his planned coup. He was a Holocaust survivor from Kovno, and as he himself would say, those experiences led him to believe that democracy shouldn’t be left to the people, and needed judicial guarantees.

Others point to 1977 and the Likud takeover after decades of Mapai rule, as the moment when the Court became a tool for the left to exercise power.

In other words, having lost control of the levers of executive power in Menachem Begin’s “mahapach,” the left said, “no problem, there are other levers, such as the court system.”

Yes, and that whole approach has a sociocultural framework.

It says that elites want to take power from the public because we’re afraid of those raw forces and we have to tame the beast. We don’t want to be accountable to public opinion.

That approach is the same in other places: Some elites want to move power to international bodies like the European Union because “the people” can’t  be trusted with exercising that power.

In social studies, they talk of “somewheres” and “anywheres” — localists versus globalists. In Israeli terms, Avishai Ben-Chaim has talked of a distinction between the “first Israel” of the elites and the “second Israel” of everyone else.

But that framework isn’t my issue: I look at the justice system as a discrete problem.

Getting back to the timeline, you pinpoint the ’90s as when the revolution took place. What exactly happened in those years?

A major milestone occurred in 1995. Up to that point, the Court had usurped the executive’s power by ruling who could be appointed as government ministers. But it was only in that year that the Supreme Court moved against the legislative branch by issuing the famous Bank Mizrahi ruling. Spread over hundreds of pages, the ruling declared a principle:  that based on a 1992 Basic Law dealing with human rights, the Court could cancel Knesset laws.

What was the public reaction to a bombshell like that?

Basically non-existent. The ruling was given four days after Yitzchak Rabin’s murder. The timing was certainly good from the Court’s point of view because there was no public interest in anything else.

Also — and this was part of Barak’s clever modus operandi, stating a principle and then waiting to implement it — it was only in 1997 when the Court acted to strike down a law. In 1995, the outcry was muted because nothing had happened. Then, when it did, the Court could say, ‘What’s new here?”

Once Bagatz had essentially asserted its primacy in Israel’s governing system, where did it act first?

One of the first major rulings using its new and improved reasoning was regarding the chareidi draft.

The issue had gone live when the Court declared that the minister of defense could no longer sign a waiver exempting the whole chareidi public from service. The Court’s assertion was that you couldn’t exercise general powers like that on a case-by-case basis.

What about the fact that the Arabs get a mass exemption in the same way, without legal basis? The reason that they’re exempt is because no one sends them a draft notice. So, the Court declared a principle that only applies to chareidim.

There were other rulings as well concerning religion and state, such as taking away powers from the rabbinical courts.

TERROR TACTICS The Supreme Court weighs in on deterrent measures such as destruction of terrorists’ homes

Let’s take a step back here and look at it from Aharon Barak’s point of view. Even if the Court had indeed accrued power, surely it acts as part of the normal system of checks and balances that hedge in the legislative branch in a democratic system to check majoritarian tendencies?

Firstly, the Court never checks the left — only the right. That’s a function of the fact that there is little political input in choosing them to reflect the country’s political orientation. Judges are selected by their peers, which reinforces the left-leaning tendencies of the judiciary. They simply won’t select anyone but a moderately conservative judge.

Second, there are many limitations on Israeli majoritarian power. You need to build a coalition, which acts as a check. Then you need to pass a budget, and if you can’t that leads to elections. There is very little that can be done here using executive orders like the US president.

Compare Israel with America. Surely SCOTUS can overrule the executive branch?

That’s because they have a Constitution, and the Court can’t act unilaterally to amend the constitution. Courts in general are also responsive to public opinion. Even the threat of court-packing gives the courts a hint that it shouldn’t go too far. So courts can serve as a check for a short period of time, but over the long term, they can’t stand against the will of the people.

In Israel though, over decades the Supreme Court has canceled lots of laws. It’s not equivalent to anything done in any other democratic society.

However, courts haven’t proved themselves as safeguards, even in the US. When the Court ruled outrageously, as it did in the 1857 Dred Scott decision when it ruled that the Constitution didn’t cover those of African descent, the country had to go to war over it.

When the coalition under Bibi eventually finishes the horse-trading and division of the electoral spoils, what are the top three areas that need attention once you get into power?

The first is the chareidi draft issue, because we can’t have a government without the chareidim, and the second that you have a functioning government, the clock starts ticking on that file.

The Court keeps giving extensions, and in doing so, keeps the problem alive. They say, we grant extensions because the Knesset didn’t solve the problem by passing a draft law. But in fact, the Knesset did: It passed a law three times, including the 2002 Tal Law, which worked perfectly.

Second, the Court cancelled laws targeting illegal immigration no less than four times. It’s a major electoral issue, and the solutions in 2013 and 2014 were voted for by 80 MK’s from across the spectrum.

Third, dealing with terrorists. When we pass the override clause we’ll be able to pass a law against reunification of Palestinian families. Currently it exists as a hora’at shah or temporary measure. It can’t be passed as a law because the Court could well strike it down. It is a reasonable law when we’re at war with the Palestinian Authority.

Again, what’s the burning urgency to reform the system, given that ultimately the Court allows policies like house demolitions of terrorists that wouldn’t pass elsewhere?

That’s a good example of what’s wrong. The army says that it needs to be able to demolish homes as a deterrent, but the Supreme Court minimizes the policy, only allowing the army to demolish internal walls of the house.

But the major problem is not what the Court strikes down — it’s actively intervened “only” 22 times — but that the government practices self-censorship.

How many laws haven’t been passed, and how many actions haven’t been undertaken because the government knows that the Court will act against it?

In a certain sense, though, the left-wing orientation of the Supreme Court acts in favor of the right. For governments worldwide, the existence of a powerful Supreme Court is a hechsher for Israel as a whole — if you defang Bagatz, what will prevent Israel being classed with Poland or Hungary where conservatives have neutered the courts?

First, let’s see how well that hechsher is working when it matters. We are under investigation by the International Criminal Court.

We are unreasonably frightened of other countries. When they want to come after us, the Supreme Court won’t stop them.

More than that: I want the Court to be able to act where it really matters, to check the executive branch.

Interfering in politics creates a less powerful Court because a Court has limited public credit. If it uses that credit to decide who is prime minister, it can’t use it to help a Palestinian whose been falsely imprisoned.

Here we are in the Knesset, speaking English — far from a given — and discussing the finer points of democracy. What brought you to this point, to be so focused on this one issue?

The English is from school, as my family came here from America a century ago. I was raised in Bnei Brak on the border of different worlds, that of the National-Religious and what used to be called PAI — Poalei Agudat Yisrael. My brother Rav Natan is a well-known chareidi talmid chacham, I have relatives in Lakewood, while I am a member of Bezalel Smotrich’s National Religious Party.

I went to law school precisely because of my interest in the idea of governability, the ability of a majority to govern.

Your own trajectory — founding a think tank dedicated to pushing back against Court power — is symptomatic of the importing of ideas from the American conservative right into the Israeli scene.

That’s correct. In the US, the Federalist Society has been active for a long time to promote conservative judges, most successfully with the Supreme Court turning conservative under Trump.  I just spoke at their recent gathering, and we’re trying to start an Israeli equivalent with branches on university campuses to achieve long-term change.

And yet your current emphasis is on a radical shake-up and not a long march like the American model.

That’s because Israel is unique — and not in a good way — in so many different ways. Under Israel’s current system, the people can’t really self-govern.

Moving on to the wider conservative ecosystem, think tanks like the Kohelet Forum have come to be very influential in government policy, and it seems that there’s been a push in recent years to transplant ideas from overseas to the Israeli context — is that correct?

The question is what took so long. Much of Israeli society is essentially conservative, as the terms are defined in the US on issues like security and family values. You can easily find secular families here with four or five children, unlike much of Europe and America.

Take a politician like Benny Gantz — he’s center-left here, but his hawkish ideas of security would easily place him in conservative circles in America.

The Israeli public is broadly conservative. The exception is on free markets, where it’s very difficult to find true free marketeers in Israel.

That conservative orientation is why it’s time to reform the legal system, to put things back tio where they were before 1997 when the Knesset — expressing the will of the Israeli majority — was in charge.


(Originally featured in Mishpacha, Issue 938)

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