Last week, the Israel Supreme Court ruled that the government’s policy of exempting Haredim (ultra-Orthodox Jews) from military service amounted to unconstitutional discrimination. The ruling was the latest decision by the high court in a conflict that stretches back years. In an earlier decision, the court held that a blanket exemption for Haredim was invalid, instructing the Knesset (Israel’s parliament) to develop a plan to include them in the military. After an initial effort in that direction, the Knesset and the government pulled back, adopting toothless measures that looked more like defiance of the Supreme Court than compliance with its order.
Last week’s ruling said enough is enough. The court gave the government a year to develop a realistic plan or else draft all age-eligible Haredi men into the military.
Whether the Knesset and the Netanyahu government (or its successor in the event that the ongoing corruption probe results in a new prime minister) comply with this latest ruling remains to be seen. Judicial review itself rests on a fragile foundation in Israel, and already conservative critics of the Supreme Court have issued calls to strip it of its authority. Exploring the power dynamic between the court and elected officials may shed light on the relation between judicial review and democracy in other countries as well.
Israel’s Basic Laws
When Israel gained independence in 1948, it was widely expected that its leaders would draft a constitution, but with the immediate outbreak of war, they turned to other tasks. Thus, for the first decade of its existence, Israel operated under something like the system of parliamentary supremacy that prevailed in its former colonial master. In England, according to the standard view associated with the late nineteenth century theorist A.V. Dicey, sovereignty resides in parliament, and thus parliament—or, in some formulations, the king or queen in parliament—can make any law.
Beginning in 1958, the Knesset passed a series of “Basic Laws” that defined the institutions and powers of, as well as limits on, government. At first, these Basic Laws were regarded as no different from other laws, but in the 1995 landmark Mizrahi Bank case, the Israel Supreme Court ruled that a law passed by the Knesset was invalid because it contradicted an earlier-enacted Basic Law. As explained by Court President Aharon Barak in the lead opinion, the Basic Laws are higher laws, much in the way that provisions of the US Constitution are superior to acts of Congress.
Critics were quick to object based on a fundamental difference between the US Constitution and Israel’s Basic Laws. Constitutional provisions in the US are superior to ordinary legislation because they result from a special enactment process that requires supermajority support, but in Israel the same body that adopts Basic Laws also enacts ordinary legislation, and it does so by the same process—simple majority vote in the Knesset. What, then, makes a Basic Law superior to a later-in-time regular law?
President Barak had an answer to that question. When Israel was founded, he wrote, the power to draft a constitution was vested in the Knesset sitting as a constituent assembly (or what Americans might call a constitutional convention). Having failed to write a constitution at that time, however, the Knesset retained its constituent authority. When it wrote the Basic Laws, it exercised its constituent authority rather than its ordinary legislative authority. Thus, the Knesset wears two hats: As a regular parliament, it enacts regular legislation; as a constituent assembly, it enacts Basic Laws which supersede even later-in-time ordinary laws.
Israel’s population divides along multiple axes. A majority are Jewish, but there are substantial Muslim, Christian, and other religious minorities. Some Israeli Jews favor exchanging land for peace with Palestine; others favor permanent settlement of the occupied territories. Many Israeli Jews are secular; others are religious; still others, the Haredi, are extremely religious. The Jewish population includes immigrants and their descendants who came in different periods from central and eastern Europe, the Arab and other Muslim countries of the Middle East, Ethiopia, Russia, and elsewhere. These origins tend to correlate with distinctive social and political views as well.
Not surprisingly, in a country with so many divisions, Supreme Court decisions on matters such as national security, religious rights, and gender equality have generated controversy. The court’s decisions themselves reflect diverse jurisprudential approaches and values. The court is not, as its right-wing critics sometimes contend, a uniformly left-liberal institution. The court gives substantial weight to concerns such as national security and religious sensitivity. For example, even the supposedly draconian default solution in the most recent decision on Haredi military service exempts Haredi women. By contrast, most Israeli young women are subject to the military draft (although alternative forms of service are available).
Notwithstanding the Israel Supreme Court’s willingness to accommodate religious institutions and conservative positions more broadly, it has lately come under sustained attack from the right. Various proposed institutional responses circulate. Such proposals include: repealing one or more of the Basic Laws; amending the Basic Laws to eliminate judicial review; changing the appointment process to make it more political; and substituting “soft” judicial review for “hard” judicial review.
Hard and Soft Judicial Review
What do those last two terms mean? Examples from other countries are instructive.
The US has hard judicial review. If the US Supreme Court holds an act of Congress or a state law unconstitutional, that result can only be changed by amending the Constitution, which is politically nearly impossible. In the ordinary course, a constitutional amendment requires proposal by two-thirds of each house of Congress and ratification by three quarters of the states. Given political polarization, a Supreme Court decision would need to be extremely unpopular in order to generate a constitutional amendment overruling it.
By contrast, some other countries have soft judicial review in the sense that their constitutional courts’ rulings can be overridden by legislation. For example, Section 33 of the Canadian Charter of Rights and Freedoms permits the national and provincial governments to enact laws that violate the Charter so long as they expressly invoke the power to do so. This so-called Notwithstanding Clause gives the national and provincial governments the power to set aside judicial rulings of unconstitutionality for renewable periods of five years at a time.
Other forms of soft judicial review also exist. For instance, when a UK court issues a “declaration of incompatibility” between some law and the Human Rights Act, the incompatible law remains on the books and enforceable unless and until parliament repeals it.
It is somewhat curious that some critics of the Israel Supreme Court propose soft judicial review to rein it in, because, as a formal matter, Israel already has soft judicial review. All it would take for the Knesset to overrule any Supreme Court decision is for it to don its constituent assembly hat and amend or even repeal a Basic Law.
All Judicial Review is Soft
So why doesn’t the Knesset do that? It turns out that the categories of soft and hard judicial review are not as clear-cut as one might think. Even formally soft review can be pretty hard in practice and vice-versa.
In Canada, the Notwithstanding Clause has never been invoked by the national parliament or most of the provincial parliaments. In the early years after the adoption of the Charter, Quebec routinely invoked the Notwithstanding Clause, but since then it has become virtually unusable as a practical matter. In a Canadian culture that values human rights, it is all but impossible to obtain majority support in any legislature for expressly announcing an intention to violate the Charter.
Conversely, even the US—with what is generally regarded as the hardest form of judicial review in the world—provides mechanisms for Congress to check the Supreme Court. Constitutional scholars debate the extent of congressional power to limit the Court’s jurisdiction under the Exceptions Clause of Article III, but even some fierce defenders of a robust role for judicial protection of minority rights, like the late Yale and Columbia Professor Charles Black, have argued that the possibility of jurisdiction stripping lurking in the background ensures that the Court does not go wild in its exercise of the power of judicial review.
Congress can also influence the Court by setting the number of justices. True, since a Congress controlled by his own party rejected President Franklin D. Roosevelt’s Court-packing plan, that power has been effectively unavailable. But the strong norm against Court packing only underscores the similarity between the US and Canadian systems: In both countries, a formal mechanism for resisting judicial supremacy cannot be used because of an informal understanding that to do so would be to jeopardize judicial review itself.
Yet even strong norms can give way. Thus, it is possible for determined politicians to destroy a constitutional court as a check on their power. Far-right nationalist governments in Hungary and Poland as well as a far-left government in Venezuela have been doing just that in recent years. However, these disturbing developments are not instances of the democratic process acting to correct excessively activist judicial review; they are simply efforts to consolidate power by those who wish to abuse it.
Israelis should heed the lessons taught by experience elsewhere. Judicial review in Israel is already sufficiently soft to address any risk of government by judiciary. The far greater risk in the current moment is that in the name of democratic legitimacy, Israel will sacrifice an institution that is essential for maintaining the overall legitimacy of the exercise of power. Whatever one thinks about whether and to what extent Haredim should be obligated to perform military service, that sacrifice would be unwise.