by Phil Schneider, ISRAEL UNWIRED September 19, 2023
Caroline Glick’s speech at this pro-government rally is troubling. She paints in very vivid colors the reality of a minority that has wielded enormous power over the citizenry of the State of Israel via the Supreme Court. The Court of Israel has not served as “the breaks” that reign in the Legislative Branch as much as it has been a self-appointed supreme authority without any counterbalance to their power. In actuality, the present Israeli Supreme Court functions as a mini fiefdom with enormous power to enact and effect all policies of the present government.
One of the main arguments used by the anti-government protesters is the argument that Israel does not have three branches of government that balance each other out. They only have a legislative branch and a judiciary. Therefore, the argument goes, the judiciary is the only balancing authority to the enormous power of the legislative branch. This is a rather convincing, but false argument.
In actuality, Israel does have a modified form of an Executive Branch. The Prime Minister is an independent branch of the governing authority. He or she actually has the most power in the Israeli government, as long as the Prime Minister can retain a 61-person majority in the Knesset. It is indeed true that there are very few things that can stop a Prime Minister outside of toppling the government with a no-confidence vote of 61 members of the Knesset. But this is not a rare occurrence in Israel. It has happened many times, thereby proving that the Prime Minister does indeed have a counterbalance of power in the Knesset.
So where does the Judiciary come in? In a nutshell, until around 30 years ago, the Judiciary had a very natural role as the adjudicator in all cases that rose up to its ranks. But the big change occurred when Aharon Barak, the new head of the Supreme Court, usurped enormous power for the Supreme Court by changing the historic role of the Judiciary to an activist Supreme Court. There was no issue that the Supreme Court did not adjudicate. The Army found its hands tied, the Legislative Branch found it’s hand’s tied, and certainly the Prime Minister found his hands tied. Furthermore, the Supreme Court ensured that a majority of the Supreme Court justices that followed were of similar ideology by instituting an absurd method of electing Supreme Court judges that precluded any change in ideology from transpiring. That is where Israel finds itself today, with a Supreme Court that has no brakes.
Today’s Israeli Supreme Court’s power grab is probably closest in analogy to the American FBI under J. Edgar Hoover. Hoover ran the FBI like a government within a government for many decades. He held inordinate power over all politicians, from the President and down to nearly every Congressman and Congresswoman. But Hoover was not clearly pushing one ideology. He seemed more focused on aggrandizing power, fighting the Communist threat as he saw it, and whatever other things Hoover was concerned about. So successive administrations learned to live with him, and one day, he disappeared from the scene, and then the FBI began to be reined in somewhat by Congress.
This will not happen with Israel’s Supreme Court. The system must be reformed, or it will stay as a powerful fiefdom for decades to come. But it may simply not be the ideal time to effect reform, and it may need to be dealt with in a more piecemeal fashion. It may be wiser to avert an all-out rebellion by a violent minority that has lost all ideas of proportion in fighting for what they see as a threat to their way of life.