Journalist, feminist, Gloria Steinem asserts, “Law and Justice are not always the same.” That dictum has never been more credible than regards the Supreme Court of Israel. That’s the premise of Israeli’/ American lawyer, author Yonatan Green who exhaustingly and critically explores Rogue Justice-The Rise of Judicial Supremacy in Israel, a new work that aims to validate his assertion. Green claims the Supreme Court has dominance over all domestic, judicial, governmental, defense, financial, and other key civic fundamentals. Unlike many Western democracies, Israel does not have a founding Constitution, but rather a “de facto” one, based on what are termed “14 Basic Laws” over which the Court reigns supreme.

 

Green informs the Supreme Court comprises fifteen Justices. Unlike the U.S. Supreme Court, the Israeli system allows the majority of cases heard by three-judge panels. The Israeli Supreme Court has never heard a single case with all fifteen Justices en banc--- that is until once in 2023. At that time the issue involved the Government’s Basic Laws amendment case “which sought to limit the Supreme Court’s ability to assess whether a particular government action or policy is reasonable.” The proposed amendment was struck down as “null and void” by Chief Justice Esther Hayut. The case and its ruling caused enormous public controversy, “splitting Israel’s citizenry sharply to this day with its demand for judicial reform.

 

In an explosive work, Green bristles at the Judicial Selection Committee, their makeup and their astonishing discretion to elect new Justices. Of the nine members in the group only the legal members ---three sitting Justices and two lawyers hold veto power. Unlike other democracies this elite committee, nominates and also elects new Justices to the bench. The author’s opinion dubs the Judicial Selection Committee’s supreme influence, “undemocratic, ominously self-serving if not at ‘the risk of subtle tyranny.” But the elephant in the room in Green’s work is former Chief Justice Aharon Barak

 

Green recounts Barak served 28 years on the bench, 11 of which as Chief Justice. A highly respected and talented Hebrew University law professor, his brainchild is the so called “reasonabless doctrine.” It makes the claim that some legal government decisions are ‘unreasonable.’ Essentially the Supreme Court retries cases nullifying the government’s judgement. In effect, Green opines, the Supreme Court usurps, invalidates and overturns the legal government’s role. He persuasively argues Barak’s “Golden Pages” empower the Supreme Court and vastly emasculate the executive branch of government “extending far below strictly legal matters” thus giving the Supreme Court the last word.

 

Ilya Shapiro director of constitutional studies at the Manhattan Institute expresses my sentiments in an article about this exceptional book that requires a hefty investment in time. Shapiro writes. “Rogue Justice may be too thorough for its own good. Dense with case law and institutional detail, it may intimidate those who don’t already care about Israeli legal arcana.” He continues. “I worry that judicial reform junkies will be the only readers who read it all the way through.” A seismic, edifying read.