In the wake of the Israeli court’s decision overturning the deal to exploit the country’s offshore gas reserves, Ayelet Shaked, the justice minister, has joined the chorus of voices criticizing the ruling. She has since been attacked for her comments on the grounds that it is inappropriate for a sitting cabinet member to express disagreement with the supreme court. Eugene Kontorovich argues that such criticism is not only appropriate but important:
The legitimacy of such criticism can be seen from the very form that judicial decisions take. When courts in countries with Anglo-American legal traditions, [including Israel], decide even routine cases, they issue written opinions. . . .
Why should the court not simply point to the winner? It is because the force of an opinion of the court derives from its logic and reasoning, from how well it follows prior cases and existing law. Opinions are published because the government and public are not supposed to nod meekly and accept the court’s decisions. The requirement to reveal their reasoning presupposes the legitimacy of criticizing decisions based on their rationale, or lack thereof.
All this is even more relevant for the Israel’s supreme court, which has given itself the power to negate the action of elected governments even without any written constitution, based on general principles like “reasonableness.”
In other Western democracies, the independence of the courts is part of a system of checks and balances—where the courts check the political branches and vice versa. Such checks include the doctrine of parliamentary sovereignty that keeps courts from overturning certain laws, or the ability of the government to appoint the judges. In Israel, none of these checks is available. Indeed, political criticism is perhaps the only check there is, and it is minor and ineffective.