Israel’s Judicial Tyranny and Its Anti-Democratic Defenders

Recent statements by Israel’s minister of justice Amir Ohana have brought back to public attention the controversy between those who wish to defend the unchecked power of the country’s overweening Supreme Court—paradoxically condemning any complaint about the power of this unelected oligarchic body as “undemocratic”—and those who wish to impose limits on its authority. Moshe Koppel comments:

[O]ne might be tempted to argue that the court is limited by its dependence on the law, that it has to work with the laws it’s given by the legislature. . . . This sounds plausible, but it doesn’t hold water. First, the court here makes frequent use of a [unique] doctrine it calls “interpretation by objective purpose,” which means that a law should be interpreted neither according to its plain meaning nor according to the legislature’s intent, but rather however the court deems appropriate. In short, statutory language does not constrain the bench on any occasion in which the bench does not wish to be constrained.

Second, and more shockingly, the claim that statutes can only be struck down in accordance with constitutional principles is also now being challenged. The court has agreed to hear petitions against the constitutionality of Basic Law: Israel as the Nation-State of the Jewish People. Since Basic Laws are Israel’s equivalent of constitutional legislation, this challenge to a Basic Law’s constitutionality is incoherent. The court’s agreement to hear this case . . . is tantamount to the claim that nothing is outside its purview, including the constitution itself.

I invite those who are now defending the court to provide an example of a single situation in which the court disapproves of a law or government action but does not—and, in their opinion, should not—have the authority to intervene. Careful: an example where the court chooses not to exercise its authority is insufficient; it needs to be an example where it doesn’t have the authority.

Read more at JNS

More about: Israel's Basic Law, Israeli democracy, Supreme Court of Israel


To Save Gaza, the U.S. Needs a Strategy to Restrain Iran

Since the outbreak of war on October 7, America has given Israel much support, and also much advice. Seth Cropsey argues that some of that advice hasn’t been especially good:

American demands for “restraint” and a “lighter footprint” provide significant elements of Hamas’s command structure, including Yahya Sinwar, the architect of 10/7, a far greater chance of surviving and preserving the organization’s capabilities. Its threat will persist to some extent in any case, since it has significant assets in Lebanon and is poised to enter into a full-fledged partnership with Hizballah that would give it access to Lebanon’s Palestinian refugee camps for recruitment and to Iranian-supported ratlines into Jordan and Syria.

Turning to the aftermath of the war, Cropsey observes that it will take a different kind of involvement for the U.S. to get the outcomes it desires, namely an alternative to Israeli and to Hamas rule in Gaza that comes with buy-in from its Arab allies:

The only way that Gaza can be governed in a sustainable and stable manner is through the participation of Arab states, and in particular the Gulf Arabs, and the only power that can deliver their participation is the United States. A grand bargain is impossible unless the U.S. exerts enough leverage to induce one.

Militarily speaking, the U.S. has shown no desire seriously to curb Iranian power. It has persistently signaled a desire to avoid escalation. . . . The Gulf Arabs understand this. They have no desire to engage in serious strategic dialogue with Washington and Jerusalem over Iran strategy, since Washington does not have an Iran strategy.

Gaza’s fate is a small part of a much broader strategic struggle. Unless this is recognized, any diplomatic master plan will degenerate into a diplomatic parlor game.

Read more at National Review

More about: Gaza War 2023, Iran, U.S. Foreign policy