December 17, 2018

The Supreme Court Needs Urgent Reform

Israel’s Supreme Court is the most powerful court in the free world. Its supporters say that it looks out for the little guy, but the court’s rulings belie this argument. The court has seized legislative and executive powers to advance two agendas: populism and post-Zionism.

On the populist side, the court in August abrogated a law levying a new tax on owners of more than two apartments. For taxpayers shouldering one of the highest tax burdens in the world, the popularity of the court’s move is self-evident. But popularity isn’t a legal argument, and indeed, the justices gave no legal grounds for their ruling.

The justices asserted that the law must be overturned because, in their view, lawmakers didn’t deliberate it sufficiently before it passed the first of three readings required to be made into law. Through their ruling, the justices arrogated the right to strike down any law.  Who can argue with the inherently debatable allegation that a bill wasn’t deliberated sufficiently?

Supporters of the court assert that its judgments are geared toward ensuring that all citizens and noncitizen petitioners receive equal treatment. But again, court rulings contradict this notion.

For instance, in 2002, the court overturned the so-called Arutz 7 law. The law regulated the operation of private radio stations and gave a license to Arutz 7, a popular religious Zionist station that had been broadcasting illegally.

The court struck down the law, finding that it harmed the principle of equality. According to the justices, because someone else in the future might want to broadcast on Arutz 7’s frequencies, the station couldn’t use them in 2002.

Far from ensuring equality, the court’s ruling was deliberately prejudicial. It denied broadcast rights to a specific minority group that was underrepresented in the radio industry because the group — the religious Zionist sector — is despised by the justices.

In subsequent rulings, the court has cultivated inequality in the name of “equality.” It has provided extra-legal rights to Israeli Arabs and Palestinians while denying civil rights to religious Zionists, ultra-Orthodox Israelis, working-class Israeli Jews and Israeli Jewish farmers. It has struck down manifestly legal government policies in spheres as diverse as annual budgets and national security.

For instance, the court has issued a series of rulings that prevent the government from destroying buildings built illegally on state lands by Bedouins while ordering the destruction of Israeli-Jewish homes and communities in Judea and Samaria without receiving proof the land was settled illegally.

Despite the government’s legal right to order the destruction of the homes of terrorists, the court has issued injunction after injunction to stall and limit the government’s use of its power, to the point of diminishing the effectiveness of this key counterterrorism tool.

To the detriment of working-class Israelis, the court seized the power of the government and Knesset to determine immigration policies. Working-class Israelis in south Tel Aviv have seen their neighborhoods transformed into crime-plagued no-go zones by illegal immigrants from Eritrea and Sudan. Every law the Knesset has passed and policy the government has approved to lawfully remove the illegal immigrants has been abrogated by the court.

Far from ensuring equality, the court’s ruling was deliberately prejudicial.

The premise that the court’s actions protect the country from the “tyranny of the majority” is manifestly absurd. Under Israel’s multiparty system, there is no way for such a majority to ever form.

The court has exploited this state of affairs. It has seized tyrannical powers with the full knowledge that a divided government is hard-pressed to limit its actions.

It is hard to know how long this judicial tyranny will expand unchecked. Last month, the court’s recently installed Esther Hayut (sworn in Oct. 26) intimated that her goal as chief justice is formally to empower justices to issue rulings without even paying lip service to laws.

But the political will to rein in the court is building. Support for the court is now a political liability for major and minor parties alike as sector after sector in Israeli society sees its rights to security, property and equality trampled by the court.

Caroline Glick has a master’s in public policy from Harvard. Her stories have been published in The Jerusalem Post and other publications.