Political Courts and Judicial Pushback: A Response to Moshe Cohen-Eliya and Iddo Porat

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Abstract

Israel faces a moment of constitutional crisis and, perhaps, of opportunity. The crisis emerged soon after the return of Prime Minister Benjamin Netanyahu backed by the country’s most conservative coalition government to date. The new government proposed legislation in January 2023 that would weaken the judicial review powers and independence of the Supreme Court. Among other things, it would permit the Israeli legislature (Knesset) to override provisions in the country’s Constitution (Basic Laws), require a supermajority of 12 out of 15 judges on the Supreme Court to hold legislation unconstitutional, and effectively permit the governing coalition to appoint judges to the Supreme Court and to remove them without cause. Following widespread protests, the government announced on 27 March that it would pause the legislation. Many proposals for constitutional reform - including the adoption of a written constitution - have since emerged, suggesting that a broader constitutional revolution may be afoot. Professors Moshe Cohen- Eliya and Iddo Porat published their essay advocating a “New Deal” for the Israeli judiciary in response to the government-proposed legislation and prior to the budding constitutional moment. It remains a valuable and sober contribution to the debate, drawing helpfully from their comparative work on judicial polarization. In this response, I focus on Cohen-Eliya and Porat’s proposal to reform the judicial appointment process. My arguments pertain, first, to the normative and conceptual foundations of their proposal and, second, to an aspect they do not consider: the possibility that the Supreme Court itself might resist such reforms.
Original languageEnglish
Pages (from-to)2219-2224
Number of pages6
JournalDiritto Pubblico Comparato Ed Europeo
Volume59
Issue number2
DOIs
Publication statusPublished - 2023
Externally publishedYes

Keywords

  • judicial independence
  • Israel
  • constitutional law
  • comparative constitutionalism

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