The Foundation for Constitutional Democracy


The Need to Restrain Israel’s Supreme Court

Filed under: Supreme Court/Judicial — eidelberg @ 7:22 am Edit This

Eminent persons across political spectrum in Israel—judges, academics, and lawyers—have said that Israel’s Supreme Court, especially under its former President Aharon Barak, has exceeded its prescribed powers and has handed down many decisions that violate basic principles of democracy, to say nothing of Zionism and Judaism.

Since the Knesset’s Constitution, Law and Justice Committee is presently engaged in drafting a constitution for the State of Israel, it behooves the members of this Committee to curb the judicial imperialism of the Supreme Court. The mode of appointing the judges of the Court should be crafted in such a way as to deter the Court from arrogating to itself powers or functions which, as a matter of principle and of prudence, rightfully belong to the Legislative and Executive branches of government.

To this end the Committee should study judicial self-restraint of Justice Louis Brandeis who, in 1936, codified a series of rules which the United States Supreme Court had developed for its own governance, under which is has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They were seven in number:

  1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions is legitimate only in the last resort, ands as a necessity in the determination of real, earnest and vital controversy between individuals;

  2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it;

  3. The Court will not formulate a rule of constitutional law broader than is require by the precise facts to which it is to be applied;

  4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of;

  5. The Court will not pass on the validity of a statute upon the complaint of one who fails to show that he is injured by its operation;

  6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits; and

  7. When the validity of an act of Congress is drawn in question, and even if a serious doubt of constitutionality is raise, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.

It may be worthwhile for the Constitution, Law and Justice Committee to deliberate on whether the above rules, or some version thereof, can be incorporated in legislation. Be this as it may, the Knesset must not allow an unelected Supreme Court to violate the principles of democracy by becoming a super-legislature or by substituting its will for the will of the people.

The judicial branch of government betrays democracy when, instead of interpreting the law, it superciliously makes the law. Law making must be preceded by political deliberation, requiring the ability to reconcile diverse opinions and interests, as well as the assistance of experts in various fields of knowledge. The Court simply lacks the research facilities available to the legislature branch of government. Whereas the primary concern of the Judiciary is permanence, the primary concern of the Legislature is change.

The Court also lacks the facilities of the executive branch, which embraces all the ministries of government. Moreover, the executive branch is responsible for the defense of the country, which inevitably involves the use of highly classified information. The Supreme Court has no business substituting its judgment for that of the Executive in security matters, especially in wartime (a matter of prudence repeatedly ignored by the Barak Court).

One last word. Justice Brandeis was not only a great judge, he was also an ardent Zionist. What a contrast with the present crop of judges and anti-Zionists who now preside over the laws of Israel.