There’s no necessary connection between foreign and domestic malfeasance. It’s possible for a brutal dictatorship to scrupulously observe international law in its dealings with its neighbors, just as it’s possible for a liberal democracy to engage in an aggressively imperialist foreign policy. But both are rare: in general, for a host of fairly obvious reasons, bad behavior at home correlates with bad behavior abroad.
And so it is with Israel. Over the last decade and a half, as its far-right government has edged closer to an explicit agenda of ethnic cleansing in dealing with the Palestinians, it has also become more authoritarian at home. The culmination came last year when Benjamin Netanyahu, having secured a compliant majority at the 2022 election, proceeded with plans to neuter the supreme court and extend government control of the judiciary.
The legislation led to huge protests and some wavering on the government’s part, and the issue was still unresolved when war with Hamas broke out last October. What is now nominally a government of national unity has put other matters on hold, but with Netanyahu widely blamed for the intelligence failures that enabled the Hamas attack, a political reckoning can not be postponed for long.
And now the supreme court has struck back. On Monday it overturned a central part of Netanyahu’s program, the provision that would have removed the court’s powers to strike down “unreasonable” government decisions. The government had argued that such a constitutional measure was beyond the court’s power to challenge: by a majority of twelve to three the court rejected that argument, and then by a much narrower eight to seven it exercised its power to block the law.
Of course there’s an element of irony in describing a decision by unelected judges to overturn a law passed by elected MPs as a victory for democracy. But however democratic the legislative process might be – and Israel’s leaves quite a bit to be desired, for reasons we’ve discussed before – weakening judicial review in the long run means weakening democracy.
The opponents of the judiciary might claim to be democrats, but their practice shows otherwise. The things they want to shield from judicial oversight always include their attempts to manipulate the electoral rules in their favor, whether it’s gerrymandering boundaries in the United States or disqualifying non-Zionist candidates in Israel. Experience shows that the rule of law is a fundamental bulwark of democracy; the two stand or fall together.
So now with his military bogged down in Gaza and his domestic opponents re-energised, Netanyahu’s fight for survival moves into what could be its final phase. But he’s been written off many times before.
The World is Not Enough 
The headline is ironic because it is wrong. There is no political accountability from Israel’s judiciary, it is a self-perpetuating elite with the power to interfere in what we would view as acceptable democratic legislation. This is a major anti-democratic defect in their system.
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That is clearly the correct call in this particular instance, but as a universal proposition it’s dubious. The universal answer to the question ‘Which side should democrats support in a conflict between the courts and the government, or the courts and the parliament [or, for that matter, between the parliament and the government, or between the President and the Prime Minister–or, in countries other than Israel, between the two houses of parliament, or between State and national governments, and so on]?’ has to be ‘It depends on what each side is trying to do, and why, and what the effects will be if they succeed’.
Again, in this particular instance; but in the US right now, the courts are exercising their powers in ways which obstruct democracy, and it’s the supporters of the courts against the government whose practice shows they are not democrats.
That depends at least partly on what you include under the heading of ‘the rule of law’. I have read that the Swiss constitution specifically gives the legislature, not the courts, the power to decide whether legislation is compatible with the constitution, denying the courts the power (found in other countries) to invalidate legislation on the grounds of its unconstitutionality. That doesn’t necessarily make Switzerland less democratic than those other countries. (On the other hand, if there were a proposal to amend the Swiss constitution to allow courts to invalidate legislation for unconstitutionality, would that be pro-democratic or anti-democratic?–well, the answer would depend, again, on who was taking positions for or against that proposal, and why, and what would be the effects, in the circumstances prevailing at the time, of the proposal’s adoption or rejection.)
To repeat: on the point immediately at issue, it’s a good thing for democracy that the court ruled as it did.
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Thanks J-D. Yes, the substance of the particular issue matters, but it’s not the only thing that matters. So, for example, it’s perfectly reasonable to criticise the US Supreme Court for its decision to overturn Roe v. Wade – indeed, I would agree with that criticism. But if it were proposed to give Congress the power to override that decision, that would be a bad response, even if on the particular issue it would produce the right result.
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When I wrote above that which side democrats should support depends on what the effects would be of success for one side or the other, what I mean by ‘the effects’ was not just the effects in the particular situation which gave rise to the issue but the effects in general.
In the case you mention related to the overruling of Roe v. Wade, the effects of the success of a proposal depend on precisely what that proposal was (and the circumstances in which it was made). For example, what would the effects be if the US Congress** right now passed a law saying something like ‘No State shall make a law imposing criminal penalties for the termination of a pregnancy’? Well, one of the effects might well be that it would become impossible in practice to prosecute doctors for what would otherwise be criminal negligence in carrying out a medical procedure, which would be a bad effect. However, a well-informed and experienced legal draftsperson could write a law more carefully specified than what I suggested in a way that would get around that problem, and others like it.
However, another effect might well be a constitutional challenge to the law on the basis that Congress doesn’t have the constitutional power to pass such a law. I don’t know what the effects of such a constitutional challenge would be, but I can easily believe in the possibility of their being bad.
So, then, what if the proposal were for a constitutional amendment saying something about Congress having power to make laws about the right of access to medical procedures? That would be a proposal affecting the balance of power between the Union and the States: it would make Congress more powerful and the States less powerful, and what I would say about that is what I already said in my earlier comment.
I haven’t phrased any of these proposals explicitly in terms of ‘giving Congress the power to overrule the Supreme Court’, but in this case they would have the effect of extending the power which, in effect, the Congress already (rightly) has to overrule the Supreme Court in many cases. If the Supreme Court (or any other court) interprets a law made by Congress (in a case where constitutional issues don’t arise) in a way which isn’t the way Congress wanted the law to be interpreted, then Congress has the power to amend that law so that it expresses what they wanted it to mean in the first place, and so they should.
I can see why you might say that it would be a bad idea if the proposal were for a law or a constitutional amendment saying ‘Congress shall have power to overrule any decision of the Supreme Court’ of something close to that, but the argument that a proposal like that would be a bad idea would also depend on what the effects of the proposal (if adopted) would be.
** I am well aware that there is no chance of the current Congress passing any such law.
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Charles,
Could you please be more careful. “The Palestinians” is not an accurate term as the ordinary Palestinian Arabs (“Palestinian” is not a racial group, despite what the western left likes to purport) have never had power or influence in what their “leaders” decide. Not in 1947-48 and not now.
Considering even the “moderates” in the Arab-Islamic leadership say they are not trying to delegitimise Israel but still spread the “Nakba” propaganda narrative, the whole concept of which denies the legitimacy of the creation of Israel, every statement and facts or figures they provide to the western media should be regarded with scepticism.
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Paul – I think you’re straying a bit close to the wind of justifying genocide there. Of course the Palestinians as a group are not responsible for what their leaders do, but I can’t see how that’s relevant to anything I wrote. My only reference to them was about how the Israeli govt treats them, not about Palestinian actions at all.
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