The Supreme Court Wars: America and Israel

One of the many extraordinary powers that the progressive Israeli Supreme Court has given itself is the authority to invalidate a government action based on the Justices’ conclusion that the government did not weigh, or properly weigh, all relevant public interest considerations before acting. This “reasonableness” doctrine is an open-ended judicial check to ensure that elected officials and civil servants “respect their fiduciary duties vis-a-vis the public they serve and exercise their powers with a view to advancing the public interest,” explain Israeli law professors Amichai Cohen and Yuval Shany, defenders of the doctrine. The Court has invoked the reasonableness doctrine to invalidate numerous government appointments and initiatives.   The right-wing coalition government in Israel, which prevailed in the elections of 2022 by a very slim margin, despises the reasonableness doctrine and other tools that the Court has wielded to neuter the Israeli right’s victories at the polls by thwarting their policies in office. On July 24, 2023, the Knesset narrowed (but did not eliminate) the reasonableness doctrine by disallowing the Court and other Israeli judges from applying it to cabinet ministers. “This is the destruction of Israeli democracy,” declared Yair Lapid, the leader of Israeli’s largest opposition party. Lapid was puffing wildly. The July 24 vote imposed a relatively modest and perhaps circumventable check on the Court that left intact all of its powers over legislation and the vast majority of its powers to review government action.    Lapid’s deeper worry is that the government will pass a broader package of judicial reforms that would dramatically diminish the only check on its otherwise boundless power, as the current government has vowed to do. The ultimate stakes in the Israeli judiciary debate are about who controls the future of the State of Israel: the demographically ascendant nationalist and religious groups

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