Rothman at Tikvah Conference
Rothman at Tikvah Conference Courtesy

Judge Robert Bork, once said about former Israeli Supreme Court Chief Justice Aharon Barak:

“… Barak’s court can turn ordinary legislation into a constitution, force it on the nation, and then announce that it can prevent any democratic amendment. In this, Barak surely establishes a world record for judicial hubris.”

With great foresight, Bork referred to a danger that has only grown with time.

The right of Jewish self-determination embodied in the Zionist dream is being trampled by the key institution which is meant to protect it.

For many years now, the Israeli judiciary has willfully overreached its authority and engaged in the purposeful imposition of left-wing values on a more conservative Israeli society.

The biggest conservative battle in Israel today is explaining this threat and offering positive alternatives for reform.

You probably remember the movie “My Big Fat Greek Wedding”.

The father says: “Now, gimme a word, any word, and I’ll show you how the root of that word is Greek”.

So in paraphrase: “Gimme a problem in Israel, any problem, and I’ll show you how the root of that problem is Judicial Activism.”

In fact, we can really talk about any pressing issue in Israel, but the best and most urgent example of this culture clash, is Jewish demographics in Israel.

Maintaining the Jewish majority is crucial to every element of life as we know it, from our national security, to our education, to our democracy.

Nonetheless, the growth of the non-Jewish population in Israel through immigration is greater than the growth of the Jewish population.

In fact, the overall percentage of Jews in Israel is going down.

Between 1992-2002, a hundred and forty thousand Arabs from Judea and Samaria – mainly women – were granted residency in Israel under Israel’s family reunification program.

To give some context to this number, 65,000 Americans have made Aliyah in the past 20 years.

20 Years – 65,000 Olim

Half the time, more than double the number.

This de-facto Palestinian "right of return" radicalized Arab and Bedouin populations in Israel’s Galilee, Negev, and mixed cities.

You might remember the horrific riots last year in 2021. When Israeli intelligence services analyzed the identity of the perpetrators, children of marriages under the family reunification program were disproportionately (more than twice their share) represented in the attackers.

Israeli elected officials saw this problem in real-time. And in 2002 The Knesset had taken steps to tighten control on the family reunification program through legislation known as the Citizenship Law.

Since 2002, the Knesset was forced by the Court to modify and change the Citizenship Law so it will withstand judicial challenge.

The outcome was a weak and ineffective law that was passed by a weak and ineffective Knesset.

On another Jewish-majority issue, the illegal infiltrators from Africa, The court has cancelled Knesset Legislation four times in less than a decade.

Israel faces many security challenges, but these immigration problems would not have been among them but for the intervention of the Court.

The Court’s decisions are not rooted in law, but in their own value preferences.

The court tends to view issues of non-Jewish immigration, and even illegal immigration, through a prism of equality that downplays the primacy of a Jewish majority in Israel.

I am happy and proud to say that in the past year, I have led the Knesset, from both sides of the aisle, to enact a new Citizenship Law, declaring for the first time that its goal is to keep Israel’s Jewish attributes.

It was the first time since 2002 that the Knesset fought back.

Usually, at this point in my talk, someone from the audience, and especially an audience of American conservatives, will point out that perhaps the root of the clash is simply that Israel lacks a constitution to organize the proper balance of powers in Israeli government.

But the constitutional question is less relevant to this issue, for two reasons.

The first is that Parliamentary supremacy, partially inherited from Britain, was foundational to the thinking of Israel’s early leaders.

The checks and balances already in place between the branches of Israeli government – and most especially the checks within the Knesset, imposed by the need to create broad and stable coalitions were considered sufficient limitations on Parliamentary power.

The Court itself has also made the constitution question less relevant.

Not only has the Supreme Court unilaterally decided that Israel effectively already has a constitution, but the Court’s powers have ballooned to the point where it could easily decide the validity of any Constitution or Basic Law that the Knesset tried to pass.

Israel is the only country in the world that suddenly discovered its court adopted a constitution.

Israel is the only country in the world where its Supreme Court’s senior members have a veto over nominees to its bench (I thought this is bad when I was looking at that from the outside. Now when I am a member of the Judicial Selection Committee, I must tell you, it is worse, so much worse.)

Israel is the only country in the world where court subject-matter jurisdiction is unlimited.

Israel is the only country in the world where the court lacks any limitation of standing or justiciability and can interpret laws as it sees fit despite the text of the law or the legislator’s intent.

Israel is the only country in the world where the court can invalidate laws and even Basic Laws on the basis of its own judicial doctrines.

And it does so, on a daily basis and on any issue you can imagine.

I have devoted my life to explaining the dangers this imbalance poses to Israeli democracy, and certainly to Israel’s Jewishness.

In 2012, I founded Israel’s only activist movement on this issue. The Israeli movement for Governability and Democracy – Meshilut.

In 2019, I authored “Mifleget – Bagatz” – or “Supreme Rulers,” a book showing how an activist Israeli Supreme Court poorly affected Israel’s housing prices, the Jewish character of the state, the state budget and even Parliamentary procedure and outcomes.

In what I believe is perhaps the greatest leap forward for Israeli conservatism in recent years, I was a co-founder of the Tikvah Fund’s Israel Law and Liberty Forum, which is educating a new generation of conservative Israeli legal leadership.

We need them!

As American conservatives, I am sure you will hear certain echoes of challenges you may be experiencing in the culture clash taking place in the schools, or in the media.

While the conservatives in each place differ from each other – even radically – the shared conservative struggle is fundamentally about who has the right to determine the national character, and all of the consequences that flow from that decision.

In Israel, the most powerful actor in determining these questions today, is not the Israeli public. but its courts – unelected and unaccountable.

A sovereign nation must have a government which is, as Lincoln said, of the people, by the people, and for the people.

I represent the overwhelming majority of Israelis when I say: We don’t need the International Criminal Court telling us how to fight our wars.

We don’t need the EU to try to regulate our economic or family life.

And we certainly do not need a monolithic, unelected, and unaccountable court telling us how to be a Jewish and democratic country.

As I said, Conservatives around the world differ in their policy preferences and priorities, but the threat of illiberal imperialism from unelected elites is essentially the same in Israel, in Britain, in Korea and in the U.S.

Conservatives must stand strong against those common challenges.

We will face and engage them with optimism and cheer.

The need to fight – for our homeland, for our families, for our ways of life – signifies more than anything else all the good that we have to fight for.

I crossed an ocean to speak with you about this today because in 2007, Tikvah reached across the ocean to me, in Israel.

While still in law school, I first read Bork's quote from the beginning of this speech in Azure, a publication supported by Tikvah.

It was the start of an intellectual, social and professional adventure in which I’m still engaged today as a member of Knesset and a Member of the Judicial Selection Committee.

The Tikvah community has been a continuing support at each juncture, including in my current role and mission. Thank you for that.

Be-Ezrat Hashem the State of Israel WILL have a government of the people, by the people and for the people.