“Esther Hayut has made her decision; now let her enforce it!” This potential reaction should give pause to Israel’s Supreme Court as it poises to (again) overrule the Knesset, Israel’s legislature, and invalidate the “reasonableness clause,” the first and mildest prong of the judicial overhaul that the government has promised to execute.
This quotation is a paraphrase of what Andrew Jackson, the seventh president of the United States, allegedly declared in response to a decision of the US Supreme Court with which he vehemently disagreed, nearly provoking a constitutional crisis in a democracy that was less than fifty years old. In the 1832 case of Worcester v. Georgia, Chief Justice John Marshall (in a 6-1 decision) ruled that the Cherokee Indian tribe was a sovereign nation which meant that the laws of the State of Georgia did not apply there. This contradicted President Jackson’s policy of limiting Indian territorial expansion and applying state law to these areas.
Marshall defied Jackson, who held that federal law in any event superseded state law, and this retort was attributed to Jackson: “John Marshall has made his decision; now let him enforce it!" It meant that Jackson was not inclined to enforce a ruling of the Supreme Court that he felt exceeded the Court’s authority. Whether or not Jackson actually said it is immaterial, as indeed he took no measures to enforce the ruling, nor did the State of Georgia abide by the ruling, and Jackson proceeded with his policy of Indian removal. It is even more interesting, and relevant to our current situation in Israel, that Chief Justice Marshall opposed Jackson’s candidacy for president in 1828 and deemed him unfit for office. But Jackson was elected anyway, the people’s choice, and his visage still adorns the $20 bill.
As Marshall died in 1835, the case had no practical, lingering consequences but it is instructive on how democratic societies deal with branches of government that overstep their authority. A stable, functioning democracy relies on checks and balances between the branches. While there are ample checks on Israel’s legislative and executive branches – the primary ones being the collapse of the coalition and new elections – there is absolutely no check on the Supreme Court. It is unbounded by any limitation on its authority and any propriety on the scope of its jurisdiction over the policies, decisions, and legislation of the government, as well as over the lives of Israel’s citizens. It is unelected, essentially self-appointed, and has unilaterally, illegally, and undemocratically set itself up as the ultimate authority in society.
In a democracy, the people rule, and in a representative democracy, the people rule through their elected representatives and the government formed by those representatives. It is seemingly lost on the demonstrators – energized by their signs, slogans, and costumes – that a democracy that can only endure by relying on an undemocratic institution is not a true democracy. Indeed, it is not just a feeble or flawed democracy but one which does not really exist, and more akin to the plethora of “People’s Republics” or “Democratic Republics” that proliferated under Communism.
There, under the Communists, the people voted, but absolute power was vested in an undemocratic entity – the dictator, also known as “the people’s choice.” In Israel, where absolute power is vested in another undemocratic entity known as “the Supreme Court,” the differences are marginal. Here, too, the people don’t really rule.
If only the protesters thought beyond their slogans – “Titnagdu,” “Oppose!!” – and realized the implications of their protests. They are fighting against democracy under the guise of trying to preserve democracy.
The Court’s invalidation of the “reasonableness clause” would signal that it will not tolerate any limitation on its power and, as such, would render futile and meaningless any further judicial reforms. That is probably the point of this entire endeavor, which features the judicial farce of a chief justice whose tenure expires next month and is therefore rushing this matter to decision in order to spearhead that decision. Added to the farce is the reality that Chief Justice Hayut has already announced her opinion in the case, which in a normal judicial setting should lead to her disqualification or recusal. No judge should ever sit on a case in which he or she has already made up his/her mind before hearing any arguments in the matter. No civil society and no democracy committed to the rule of law should accept such a mockery of justice. That it is considered normal in Israeli jurisprudence itself cries out for reform.
Given the peculiar circumstances, and the rush to judgment, it would be unsurprising if the Court voided the “reasonableness clause,” and, in a real show of judicial tyranny (call it a judicial coup), declared that the Prime Minister is unfit for office as morally incapacitated and legally compromised. Such leads me to conclude that the latter will not happen, in a risible show of sham objectivity, while embracing the former and putting the brakes on any judicial reform, ever. And then what? Who will say, “Esther Hayut has made her decision; now let her enforce it!”
We tend to bandy about the word “crisis” pretty freely, and few things unrelated to security matters are genuine crises. But this would be a crisis. A Court that invalidates a Basic Law, having itself declared that Basic Laws are the structure of a constitution and thus beyond the Court’s authority, would be a Court that is out-of-control and running roughshod over the people and its government.
It is discouraging that there are politicians and other officials who have openly stated that if the Court exceeds its authority and is challenged by the government, they will support the Court and not the government. But Israel’s Supreme Court – like the Supreme Court in every country in the world, democracy or autocracy – is not sovereign. The people are sovereign, and the people’s will is reflected in the government, not the Court.
As the powerful never relinquish their power without a fight, expect the Supreme Court to fight, aided by an opposition and a media establishment that despises the current government. The test of democracy is not measured by heeding an illegal Court decision but by the extent to which the government represents the people and enacts the laws under which we all live. That also means establishing appropriate checks on the Court’s power through changing the nomination procedures, limiting the Court’s jurisdiction to legal matters – cases and controversies that reflect conflicts of laws – and reining in the unlimited powers of the government’s legal advisors, who have usurped so much power that they see themselves as still another and also unelected branch of government.
Nothing points out the dire need for judicial reform more than the stark reality that the government’s “legal advisor” refuses to represent the government in these matters but is her own authority, the “legal advisor’s opposition to the commission that intends to investigate illegal spying on Israeli citizens, as well as the High Court’s continued preclusion of the government’s intention to expel the thousands of illegal migrants who are now also rioting in the streets. Something is way out of whack.
A real democracy affirms the sovereignty of the people, whose representatives are answerable to the people and can be voted out of office, as well as the independence of the judiciary that limits government encroachment on the people’s defined and legislated rights. That would be normal. What we need is both a Court that humbly accepts its limits and an Andrew Jackson who can forcefully remind the Court of its limitations. Count those among the blessings of the New Year for which we should pray.
Rabbi Pruzansky was a pulpit rabbi and attorney in the United States, today is Israel region Vice President of the Coalition for Jewish Values, and author of six books, including “Repentance for Life.”