Moshe Koppel: Redheads and Israel’s Supreme Court

Are proposed efforts to make changes in the way the Judicial Branch of government works a threat to our democracy or is the way it currently works the threat? Moshe Koppel, Bar Ilan professor and Head of the Kohelet Forum, has provided a succinct guide to understanding the issues involved in changes to the Supreme Court:

Fans of Israel’s Supreme Court have been cranking out the same argument, which I’ll call the “Save the Redheads” argument, in article after article. The gist of it is that any limitation on judicial review will render us vulnerable to an unchecked Knesset and government doing horrendous things – like hanging redheads on lampposts.

To fully appreciate the vacuity of this argument, let’s abstract out its specifics and focus on its structure. The structure of the Save the Redheads argument is something like this:

We have a baseline method (Method A) for deciding questions of public policy. But Method A could potentially yield “very bad” decisions in some cases. Therefore, we should use a different method (Method B) as a failsafe against such wrong decisions: Method A would remain the baseline method but Method B would be invoked in those cases where Method B yields a different outcome than Method A.

You don’t need to know what Method A or Method B are to see the flaws in this argument. Here are the two most glaring ones:
1. It’s entirely meaningless to say that A is the baseline and B is a failsafe if any time B yields a different result than A, we use B. This is precisely equivalent to just using Method B.
2. The very crux of the argument is taken for granted: that Method B doesn’t suffer from the same risks ascribed to Method A.

These are two pretty devastating flaws, so we have to assume that those who make this argument are blinded to them (or deliberately ignore them) for reasons tied to the specifics of Method A and Method B in this particular instance. Method A in this case is parliamentary democracy in which the legislature legislates, the executive makes policy and the judiciary resolves disputes (henceforth: democracy). Method B is rule by Supreme Court Justices (henceforth: juristocracy). Now let’s examine the Save the Redheads argument in context and see why those who are fond of it might be tempted to ignore each of these flaws.

Flaw 1: The argument elides the obvious fact that if every difference in preference between the legislature or executive and the Court is resolved in favor of the Court’s preference, this is just juristocracy, not democracy.

One can easily see why those who prefer juristocracy to democracy would wish to make it appear for rhetorical purposes that the method they support is actually just democracy. The term “democracy” has a certain cachet that a juristocrat might wish to leverage in such debates; at the very least, he wouldn’t want to admit to being against democracy. This can be achieved in one of two ways. Either by doing violence to the term democracy, specifically by redefining it to simply be juristocracy (“substantive democracy”), or by pretending that the juristocracy that one is promoting is nothing more than the usual democracy with some perfectly uncontroversial judicial safeguards.

Both approaches are in common use in Israel. The second one is the more interesting one for my purposes and I’ll focus on that one.

An American reading my abstracted version of the Save the Redheads argument would no doubt accuse me of unfairly distorting it. Surely, the argument isn’t that the Court’s opinion should be decisive *any* time it differs from that of the legislature or the executive, but rather that it should be decisive under very circumscribed circumstances in a manner that is part and parcel of any reasonable understanding of democracy. After all, I did include in the definition of democracy that the courts must resolve disputes. Isn’t this all that the Save the Redheads people are demanding?

Let’s see.

In the United States and pretty much everywhere else, the circumstances in which the Court can intervene in actions taken by the other branches are indeed circumscribed. The Court’s authority is limited to those cases in which a case has been brought by a petitioner seeking redress for harm done to him – that is, a petitioner with standing. Moreover, the Court cannot hear cases that are not justiciable – for example, because the matter in question is a political one properly resolved by the other branches. Furthermore, the Court can’t intervene in decisions taken by the other branches without very specific grounds; merely believing that the matter was wrongly resolved by the other branches is not a sufficient basis for judicial intervention. So it doesn’t seem fair to put into the mouths of my opponents the claim that the Court has the authority to intervene any time it disagrees with the other branches.

But, unfortunately, it is fair, because none of the constraints on judicial activity taken for granted elsewhere exist in Israel. In Israel, the Court itself has done away with requirements of standing and justiciability and routinely disqualifies government actions on grounds that amount to nothing more than disapproval. This system, not the American system, is the one that is being defended with the Save the Redheads argument.

Nevertheless, one might still be tempted to argue that the Court is limited by its dependence on the law. It has to work with the laws it’s given by the legislature, so its ability to make policy is severely limited. And it can only strike down statutes in accordance with constitutional principles it is handed by the legislature.

This sounds plausible, but it doesn’t hold water. First, the Court here makes frequent use of a Made in Israel doctrine it calls “interpretation by objective purpose”, which means that a law should be interpreted neither according to its plain meaning nor according to the legislature’s intentions, but rather so as to advance certain unspecified purposes deemed appropriate by the Court. In short, statutes here do not constrain Justices on any occasion in which the Justices do not wish to be constrained by them. (You might find this hard to believe, so I promise a long list of examples on another occasion.)

Second, and more shockingly, the claim that statutes can only be struck down in accordance with actual constitutional principles is also now being challenged and the Save the Redheads argument is at the heart of the challenge. The Court has agreed to hear petitions against the constitutionality of Basic Law: Nation-State. Since Basic Laws are Israel’s equivalent of constitutional legislation, the challenge to a Basic Law’s constitutionality is incoherent. The Court’s agreement to hear this case – with an expanded panel, no less – is tantamount to the claim that nothing is outside its purview, including the constitution itself. (“Otherwise the Knesset will just pass Basic Law: Kill the Redheads!”)

So, unfortunately my description of the Save the Redheads argument is not inaccurate. Don’t believe me? Here’s a test. I invite my friends who routinely make that argument to provide an example of a single situation in which the Court disapproves of a law or government action but does not – and, in their opinion, should not – have the authority to intervene. (Careful: an example where the Court chooses not to exercise its authority is insufficient; it needs to be an example where it doesn’t have the authority.) Shoot.

Flaw 2: The argument simply assumes without justification that the Knesset is filled with potential killers, but Supreme Court Justices will never be motivated by anything other than unfettered passion for Truth and Justice.

When pressed on this point, the Court’s fanboys will mumble something about the purse and the sword or populism or some happy example of judicial review. So let’s examine these one at a time.

“The judiciary is the least dangerous branch because it doesn’t exercise power of the purse or the sword.” This claim fails if everybody has standing, every issue is justiciable and the Court issues orders to the Knesset and government not only regarding what it can’t do but also what it must do. See above.

“Elected officials are prone to do bad things because they are populists who will do anything to get re-elected. Judges don’t need to get re-elected so they protect the rights of minorities.” Rarely is the anti-democratic sentiment laid out so plainly; not being answerable to the public is presented here as a virtue. I ask you seriously: do you feel more threatened by a relatively large and heterogeneous body that stands for re-election from time to time or by a small and homogeneous body that has been inbred for generations (sitting Justices have an effective veto in choosing their successors), is answerable to nobody ever and has consistently extended its own authority? (That’s a rhetorical question. If you missed that, you’re probably part of the problem.)

“Back in the year 19-whatever, the government did something really nasty and the Court saved us. What do you say to that, big shot?” The claim that needs to be proved for the Save the Redheads argument to work is that the Knesset or government might do really atrocious things but the Court never will. Anecdotal examples of the Court doing some arguably good thing hardly begin to make the case for that claim. As a matter of fact, the rather pathetic list of examples of judicial beneficence that defenders of the Court conjure (“the Knesset once designed criteria for a particular tax break that under-represented Arabs and the Court rescued us from them!”) suggests that the redheads are not in imminent danger.

So, let’s just put it out there. These sorry arguments for an essentially indefensible claim are all just ways of not stating the real argument for the real claim. The Court is a highly politicized body that is especially concerned with the welfare of particular favored groups, many of which are anything but weak or powerless. Those who share the Court’s political biases or stand to gain from being in its good graces (like the fat-cat lawyers feigning sudden concern for the future of democracy) are loathe to see the Court’s self-assigned power limited in any way.

This isn’t about the redheads. It’s about the bluebloods.