The judicial reform controversy that has enveloped the streets of Israel with hundreds of thousands of protestors on both sides of the issue reached a juncture in recent days. Prime Minister Netanyahu revealed his latest judicial reform plan; it omitted the key provision that would allow a legislative override of a Supreme Court decision by only a majority vote of the Knesset. This would have eviscerated the role of the Supreme Court as the only check on any excesses by the legislative branch.
The issue of the role of the Supreme Court vis-à-vis the Knesset has been festering in the Israeli body politic for decades. As Israel in its founding years confronted the War of Independence, which claimed one percent of its population, it was too absorbed with survival and meeting day-to-day needs to craft a constitution.
Instead, beginning in 1958 through 2018, the Knesset passed 13 basic laws encompassing the role of the Knesset; basic institutions of the government, military, and judiciary; Jerusalem as the capital; and human dignity and liberty.
It was under the term of Ahron Barak, who was a justice from 1978 to 1995 and president of the Supreme Court from 1995 to 2006, that the court’s role was expanded. Under his tenure, the court treated the basic laws as constitutional and used them to significantly increase the range of the issues it addressed. In the process, it overturned decisions made by the ruling coalition in its quest to protect what it perceived to be infringements of personal liberty.
So there’s an inherent tension between what many on the right perceive to be unelected officials overturning the will of the people though the Knesset and those largely on the left who view the court as the last bastion against the tyranny of the majority.
Against this backdrop, the new government sought to rein in the court’s power and change the selection process for justices, which most view as self-perpetuating. But the initial legislative proposal submitted was a bridge too far. The great majority of Israelis favored compromise.
The weeks ahead will determine whether a compromise can be achieved with perhaps a roadmap for the development of a constitution. Hope springs eternal.
Meanwhile, in the land with the most enduring constitution, the U.S. Supreme Court made some momentous decisions.
In one decision, a six-justice majority, invoking the 14th Amendment, ruled that race cannot be used in admissions decisions by colleges and universities. In effect, universities were favoring black and brown people of color over whites and Asians, all in the name of promoting diversity on the college campus. Other than the discrimination this policy promoted, it downgraded the importance of merit as measured by grades, test scores, and extracurricular activities.
As a people who have been discriminated against over the millennia where occupations, access to professions, and the like consigned us to second-class status, American Jews used merit to advance economically and socially despite quotas and social discrimination. Achieving excellence in education was the portal to the middle-class for so many of our parents and ourselves.
City College of New York used a formula up until 1970 that based admission on grades and results from standardized tests. With open admissions, every high school graduate had a place in a college of the City University.
To accommodate this influx, temporary buildings were erected on CCNY’s campus for hundreds of students who were unprepared to take college coursework. Classes in English, math, and rudimentary science attempted to compensate for years of inadequate education in New York City’s high schools. This was unfair to those students, as well as to better-prepared students and faculty.
Years later, with the disastrous failure of open admissions, standards for admission were upgraded, and the city colleges are regaining their lost luster.
The best way to ensure better representation of minorities at selective colleges is to improve high school education and identify students of talent to be mentored in high school. Lowering the standards for specialty high schools also is misguided.
As a result of this decision and others, in which the student loan cancellation was overturned and freedom of religion trumped “gay rights,” some on the progressive left are demanding term limits for Supreme Court justices or expanding the size of the court. Ironically this is the obverse of the position of the left in Israel, who seek to protect and enhance the power of its Supreme Court.
Whether in Israel or the United States, the role of the Supreme Court is instrumental to ensure individual liberties and curb the excess of an overly expansive legislature and executive. May our checks and balances help to maintain the equilibrium of our cherished democracies.
Max Kleinman of Fairfield was the CEO of the Jewish Federation of Greater MetroWest from 1995 to 2014. He is the president of the Fifth Commandment Foundation and consultant for the Jewish Community Legacy Project.