Israel’s Unreasonable Supreme Court

What goes down comes around. That’s our thought on the decision by Israel’s Supreme Court to overturn a law that would limit its ability to rule based on reasonableness. It is the clearest sign that history is likely to view Prime Minister Netanyahu’s push for judicial reform more charitably than the justices opposing reform — particularly because the court’s latest judicial thunderbolt comes at a time of war, reigniting a rift among Israel’s own people. These pages have clocked how Israel’s high jurists exercise power in ways unknown in other democracies. We’ve oft noted how our own Framers grasped that the judiciary was in need of checks just as much as the rest of government. What, then, would they have thought of the Supreme Court’s eight to seven vote for nullification of a law passed by the Knesset and preserving the court’s prerogative to scotch legislation it deems unreasonable?For a court to be able to rule out a law on the basis of unreasonableness strikes us as itself unreasonable. For the court to take such a drastic step in the middle of a war strikes us as even more unreasonable. Why is our neighbor’s view any more reasonable than is ours? The court is supposed to comprise experts on the law. What gives the court any more insight on reasonableness than the Average Yosef?We have marked the slipperiness of how the Supreme Court used the reasonableness standard to bar from serving in government the leader of Israel’s Shas Party, Aryeh Deri. The sages called the appointment of this tribune of the Mizrahis not only unreasonable but “extremely unreasonable,” given his past transgressions of the law. Voters knew of that past — and, for that matter, Mr. Netanyahu’s — when they elected them, reasonably enough.Writing for the minority here, Justice David Mintz castigates the court for relying on “an amorphous doctrine and an undefined formula.” He warns of a “heavy price from a democratic point of view.” A former general, Avichai Mandelblit — an avowed enemy of Mr. Netanyahu — is calling it a “second legal revolution.” The first, spearheaded by Chief Justice Aharon Barak, is what put the court in the catbird seat in the first place. Pressing its advantage the court also — by a wide margin — reaffirmed its prerogative to strike down Basic Laws. That would be roughly analogous to our Supreme Court ruling that, say, the 14th Amendment, part of our Constitution, is itself unconstitutional because it’s unreasonable. The reasonableness ruling is the first time that such a species of legislation has been so nixed, and it is now unlikely to be the last.

Israel’s Unreasonable Supreme Court

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