In the 1995 Mizraḥi Bank decision, the Israeli Supreme Court deemed that the country’s Basic Laws—pieces of legislation that lay out the functioning of the government—serve as its constitution. Thus then-Chief Justice Aharon Barack granted the court the authority to strike down laws it judges to be unconstitutional, even though Israel has no written constitution. This decision laid the groundwork for the Supreme Court’s habit of dangerous overreach. But in an upcoming case, the court will consider reversing this precedent in such a way as to arrogate even more power to itself. Eugene Kontorovich and Shimon Nataf write:
On December 22, the court will hear challenges to the constitutionality of the nation-state Basic Law. By agreeing to hear such challenges, the court is suggesting that while Basic Laws are enacted through the sovereign power of the people, there is some law even higher than these Basic Laws. And the only body with the authority to determine the contents of the invisible “higher law” is the court itself. In other words, . . . the court believes that it has the power to strike down the constitution as unconstitutional.
The nation-state law was just the start. The court has recently issued orders claiming jurisdiction over the constitutionality of changes in the Basic Laws regarding government structure that were enacted by the Knesset to implement the recent national unity-government arrangement. The court’s orders have suggested that such constitutional amendments can be struck down if the court believes they were adopted “in bad faith,” whatever that means. Most likely, the court will uphold all or most of these measures—but by simply agreeing to hear cases about the constitutionality of the constitution, the court positioned itself formally and openly as supreme over the Israeli legal system.
Read more on Tablet: https://www.tabletmag.com/sections/israel-middle-east/articles/israels-second-constitutional-revolution