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Judicial Reform for Me, but Not for Thee

The US government has openly entered into the debate over the government’s judicial reform proposals — an internal Israeli matter — to an unprecedented degree



he recent striking down by the Israeli High Court of a Knesset statute that penalizes foreign workers who overstay their visas in Israel with the loss of accrued social benefits provides a clear demonstration of why judicial reform in Israel is so crucial.

Defenders of the Israeli High Court of Justice often claim that the Court exercises its power to strike down statutes rarely, and then only in the most extreme circumstances. Last week’s ruling, however, demonstrates that the High Court shows little or no deference to the Knesset, and is perfectly willing to act as a supra-legislature to strike down statutes that do not meet with the judges’ favor.

Court President Esther Hayut and her colleagues (with only Judge Noam Sohlberg dissenting) determined that a law stipulating that deductions be taken from accrued employer-paid social benefits for foreign workers who fail to leave Israel after the expiration of their work visas violates the Basic Law: Human Dignity and Liberty by infringing on the property rights of those foreign workers.

Judge Sohlberg questioned how those property rights were violated, as all foreign workers are required in writing to acknowledge that they have been informed of the penalty for failure to leave the country upon the expiration of their visa. Thus, overstaying foreign workers have waived any claim to the forfeited benefits. Their property rights, Sohlberg reasoned, cannot be greater than what they agreed to. (The statute does have an appeal procedure for those who claim they were inadvertently in violation of their work visas provisions.)

But as Sohlberg pointed out, the High Court has frequently relied on the flimsiest of pretenses to review statutes. Thus, former Court president Aharon Barak once reviewed a statute increasing the penalties on co-conspirators for crimes carried out in furtherance of a criminal conspiracy, even when they were not involved in the specific act. On what basis? Longer imprisonment would affect the liberty of those convicted, and thus constitute a prime facie infringement of the Basic Law: Human Dignity and Liberty.

Barak’s words strike me, at least, as being at the level of a clever high school sophomore pleased with his own cleverness. As one of Barak’s fellow judges pointed out, by the same token, every single law affects some person’s freedom to do what he wants.

Sohlberg pointed out that High Court judges possess no special expertise with respect to immigration policy. And they should take into account that the law presumptively reflects the will of the people, who do not wish to see large colonies of foreign workers permanently in Israel. Quoting former High Court judge Ayala Proccacia, he wrote that the Knesset has wide discretion in socio-economic policy, and it is not for the High Court to decide whether it thinks the law is a good one or not.

Court President Hayut, however, was of a different mind, and showed no deference to the Knesset. The government presented clear statistics showing that the law, first enacted in 2005, had dramatically increased the percentage of foreign workers leaving the country. Hayut acknowledged that prime facie case for the efficacy of the law, but suggested that because the percentage of foreign workers leaving was not uniform from year to year and had not increased in a straight line over time, perhaps other factors were at play as well. She thus effectively placed an unsustainable burden on the government to prove the law fulfills its purpose and that the same results could not be achieved less invasively with the interposition of a few question marks.

THE SUGGESTION THAT a less invasive means might be found to achieve the same result is particularly surprising, given that in a series of earlier cases involving asylum seekers, the High Court had adjured the government to try economic sanctions to discourage asylum seekers, rather than jailing and forced eviction.

Bottom line: Hayut evidenced no presumption in favor of the constitutionality of Knesset legislation, much less any inclination to judicial restraint before striking down Knesset legislation. That is far from the definition of democracy of one of America’s foremost legal authorities, Judge Richard Posner. Traditionally, according to Posner, democracy has been defined in procedural terms: “a system of government in which the key officials stand for election at relatively short intervals, and are thus accountable to the citizenry.”

But Hayut is at least fully consistent with the dismissal of Posner’s definition as merely “formal democracy” by Aharon Barak, the father of Israel’s constitutional revolution, which enshrined the High Court as the ultimate arbiter of all societal norms, and against which the current judicial reforms are aimed.

THE U.S. GOVERNMENT has openly entered into the debate over the government’s judicial reform proposals — an internal Israeli matter — to an unprecedented degree. Outgoing US ambassador to Israel Tom Nides, for instance, more or less ordered Israel to “put the brakes” on judicial reform.

And last week, the New York Times’ Thomas Friedman, a longstanding critic of Prime Minister Netanyahu and any government he heads, warned Israel that the “special relationship” between the United States and Israel is being reassessed by the Biden administration, in light of the proposed judicial reforms in Israel. Friedman wrote immediately following a sit-down interview with President Biden at the White House, and was obviously conveying a threat that Biden wanted to deliver to Israel.

The irony here is rich. For Biden and his fellow Democrats have been engaged for the last three years in nonstop attacks on the United States Supreme Court. In 2020, Senate Majority Leader Charles Schumer stood on the steps of the Supreme Court and darkly warned the two most recently installed justices, “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have unleashed the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions [i.e., overruling Roe v. Wade].”

In fulfillment of Schumer’s warning, Attorney General Merrick Garland’s Justice Department refused to enforce criminal statutes against protests aimed at justices, even after a would-be assassin got cold feet outside the home of Justice Brett Kavanaugh.

In the wake of the Supreme Court decision striking down Biden’s $400 billion waiver of student loans — a waiver that both the president and former House Speaker Nancy Pelosi had previously stated was beyond the president’s constitutional powers — and its decision banning racial quotas in college admissions, President Biden pronounced the US Supreme Court “not a normal court.”

The New York Times attempted to make a scandal of the fact that several conservative justices were paid to teach at George Mason University’s Antonin Scalia School of Law — something that justices have done for years at Harvard and Yale. And the mainstream media and congressional Democrats have been accusing Justice Clarence Thomas of conflicts of interest that don’t meet the laugh test.

Meanwhile heavily financed left-wing organizations, such as Demand Justice, are promoting court-packing schemes and other “Court reforms,” to which at least 66 Democratic congressman have signed on. As Mark Pulliam writes at Law and Liberty: “Progressives applauded activist decisions, proposed new theories of ‘noninterpretive’ jurisprudence, and blew kisses to the justices most responsible for steering the Court to the left....” Now, they have started questioning the legitimacy of the Court and proposing court-packing schemes.

In short, according to President Biden and his fellow Democrats, legislative efforts to rein in an overreaching High Court in Israel are a threat to democracy, but in America, it is the US Supreme Court that is a threat to democracy.

YET THE ISRAELI HIGH COURT far outstrips the US Supreme Court both in terms of its relative power and in terms of the degree with which it is unmoored from any recognition of limits on its own power. The US Supreme Court issues approximately 150 decisions a year; the Israeli High Court well over a thousand. Moreover, the latter has completely abandoned any of the limitations on justiciability or standing developed by judges over centuries.

The conservative majority of the US Supreme Court does not decide cases based on its own value preferences. In Dobbs, for instance, the Court did not write a disquisition on the rights and wrongs of abortion. Nor did it ban abortion, as is so frequently charged. Rather, it simply said that there is no basis for finding in the Constitution a right to abortion, and left the issue to the legislatures of each state.

In so doing, it followed the late pro-choice law professor John Hart Ely, who wrote in the wake of Roe v. Wade that the Court had created a new “super-protected right,” which was not “inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions [of the Constitution], or the nation’s governmental structure.” Roe was not so much bad constitutional law, Ely opined, but rather not constitutional law at all, and “it gives almost no sense of an obligation to try to be.”

Similarly, the US Supreme Court’s decision on tuition loan forgiveness was not based on the justices’ opinion that such forgiveness is a bad idea. Rather the justices determined that a budgetary decision of that magnitude rests with Congress, under its constitutional authority over appropriations.

And in the affirmative action decisions, the Supreme Court was relying on the plain language of Title VI of the Civil Rights Act of 1964, which, inter alia, prohibits discrimination on the basis of “race, color, or national origin” by educational institutions receiving federal funding, and the legislative history of the so-called Civil Rights Amendments (13, 14, and 15), to ban racial discrimination by state educational institutions. No decision could have been more thoroughly rooted in the texts, as one would expect from a Court dominated by “originalists.”

Far from enacting their own political preferences, today’s Supreme Court majority is fully bound by traditional legal materials. As David Garrow, a democratic-socialist historian, recently wrote in the Wall Street Journal, “you don’t have to be a Federalist Society member to see that the analytical prowess today’s justices demonstrate in opinion after opinion far eclipses the quality of the Warren and Burger Courts’ work product.” And why? Because they are actually engaged in legal analysis.

By contrast, Israeli High Court decisions read like sophomoric essays in moral philosophy, as the Court strikes down Knesset legislation or imports new norms into Israeli law — e.g., a total ban on any physical punishment by parents, no matter how slight — found in only one other country in the world. Whether expressed in terms of reasonableness, justice, or morality, the High Court is simply reading its own value preferences into the law.

As former Court president Moshe Landau frequently said, the High Court has for over 30 years viewed itself as Platonic Guardians, a role for which they are not trained and for which they have shown no particular aptitude.

BUT AT LEAST the hypocrisy of the Biden administration in terming judicial reform in Israel anti-democratic, while attacking the Supreme Court in the United States as overreaching and “not normal,” becomes explicable. In the left’s vision, a good Supreme Court is one that advances elite opinion by judicial fiat and circumvents less enlightened, democratically elected legislatures in the process.

In Israel, former Court president Aharon Barak explicitly wrote that the judges should be guided by the opinion of the “enlightened population.” And that is what is meant by the “noninterpretive jurisprudence” in the United States — a jurisprudence unbound by traditional legal materials, such as statutes and constitutions, but imposing its own value preferences.

As Thomas Sowell notes in Conflict of Visions, for those who subscribe to the unrestrained vision of the perfectibility of man, the rules of the game mean nothing — all that matters is achieving the left’s desired results, by whatever means necessary. If the court is in line, great, as it avoids the messy process of democratic legislation; and if not, off with their heads.


(Originally featured in Mishpacha, Issue 971. Yonoson Rosenblum may be contacted directly at rosenblum@mishpacha.com)

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