Israeli Justices Reject Netanyahu-Led Move to Limit Court

OTOH, AFAIU, the current reform efforts are strategically designed to severely cripple the court in a way that threatens its ability to provide any meaningful check against the government, calling into question whether Israel could even be notionally considered a liberal democracy. Israel was established as a religious state with very little in the way of meaningful checks & balances (de jure or normative) intended to protect minorities (or the majority from itself). The powers the court adopted came at a time when the excesses and corruption of the government spawned a liberal reform effort that for better or worse came to fruition largely through judicial activism and not electorally-based constitutional reform.

Many moderate jurists, at least from what I've read, are of the opinion that a restraining of the court's powers is probably necessary, at least to the extent the goal is achieving a balance of powers closer to those in other liberal democracies. But that probably can't happen through the regular parliamentary process because the current powers are a response to excesses of parliament, and there's no reason to believe the parliamentary process can be trusted any more than it could 30+ years ago. Quite the contrary, the evidence for strong checks against parliament has only become more clear. (Again, presuming the goal is maintaining a liberal democracy, modulo what's minimally required to maintain Israel as a religious state.)

Unfortunately, even when they're inclined to do it, courts find it difficult to relinquish powers assumed by themselves as the very act of doing so threatens their legitimacy and viability as a strong check against other organs of government. This is why liberal democracy is often best served by conservative courts, because when a conservative court does adopt powers or uses its existing powers to obstruct highly popular government actions, it comes across as far more legitimate. Maintaining that legitimacy across several iterations of this process requires very measured and restrained power grabs. The earlier reform effort probably did a disservice to Israeli democracy by grabbing too much power.

I suspect proper, stable reform would need to come neither from parliament nor the courts. But I'm not familiar enough with Israeli politics to know what the alternatives might be. Part of the dilemma is that the Israeli political system seems to lack such alternatives, both in law and normatively.

Judges, especially at a high level, don’t just shoot from the hip. They cite the applicable laws, and pose the question: given the executive argues that what they did was permissible under these laws. Is that a reasonable interpretation or are they stretching beyond the limits of their power?

Without the underlying framework of protections to protect democracy against populism or malignant leadership the democracy would devolve. There needs to be protections in so that the government does not erode fundamental structures.

The language that Netanyahu uses in response to this ruling, in my opinion, is quite telling.

What do morally corrupt judges do?