The Struggle Over Judicial Reform in Israel // A conversation with law professor Eugene Kontorovich

Ukrainian born Eugene Kontorovich, who serves as Professor of Law at the Antonin Scalia Law School in Virginia, heads the international law department of the Kohelet Policy Forum, an Israel-based think tank that has been advocating judicial reform in Israel since its founding in January 2012. Professor Kontorovich is one of the world’s preeminent experts on universal jurisdiction and maritime piracy, as well as international law and the Israel-Arab conflict. He is also the Director of Scalia Law School’s Center for the Middle East and International Law. Professor Kontorovich joined the Scalia Law School from Northwestern University Pritzker School of Law, where he was a Professor of Law from 2011 to 2018 and an Associate Professor from 2007 to 2011. Previously, he was a Visiting Professor at the University of Chicago from 2005 to 2007 and an Assistant Professor at George Mason School of Law from 2003 to 2007.

Professor Kontorovich has published over 30 major scholarly articles and book chapters in leading law reviews and peer-reviewed journals in the United States and Europe, including the American Journal of International Law, International Review of Law & Economics, Stanford Law Review, California Law Review, University of Pennsylvania Law Review, and Virginia Law Review. His scholarship has been cited by appellate courts in the US and around the world.

The decision on Monday by Israeli Prime Minister Benjamin Netanyahu to postpone the government’s plans for judicial reform, amid widespread protests and a nationwide strike, may help lower the temperature of the conversation about those plans—or it may not. But to understand that conversation, we spoke with Prof. Kontorovich, who is one of the architects of the judicial reform plan.

You work for a think tank, the Kohelet Policy Forum, which is advocating judicial reform in Israel. What is the agenda for judicial reform in a nutshell?

Currently, there is a problem—the Israeli Supreme Court has absolute power. It can strike down any law or government action, and it’s not limited by any rules of standing, so it can decide issues that no American court would consider, such as who should be in the Cabinet, what military tactics to use, and where to draw the borders of the country. They have absolute and unchecked power on the one hand—with far more power than the American Supreme Court—and on the other hand, they’re appointed through a method that is completely cut off from democratic checks. So not only can they not be fired by politicians—which is legitimate—but they are not selected by people who are democratically accountable. As a result, they are a self-replicating elite cadre. There’s no Justice Scalia on this court… It’s like if the Warren court continued forever and got to pick its own members.

Another way to think of it is that in America, the Supreme Court decides Roe v. Wade. Many Americans think it’s a big mistake, but they don’t have to despair about their country or think that this is the last word. No one gets the last word, because there’s going to be elections, and you can vote for politicians who are going to appoint judges with a different viewpoint, and that different viewpoint will eventually be reflected in the court. So while there won’t be dramatic overnight changes, there is the possibility for gradual changes over time. But in Israel, once they make a decision that’s the last word forever, which is obviously very frustrating, and dangerous.

Our think tank that has been advocating for the idea of judicial reform and explaining how the Court has assumed extreme powers since our founding a decade ago. We have tried to explain to politicians in all parties—and we’ve even had Yair Lapid at our conferences—the problems and dangers of the current system.

How did Israel arrive at this point where the Supreme Court is all powerful?

That’s an amazing question. The Court began to gradually claim greater and greater powers, and it was not opposed by those who were sympathetic to its agenda. But I don’t think I can answer that question fully. [Former Supreme Court President] Aharon Barak called it a judicial revolution; they basically seized power. Whenever anyone has tried to do anything about it—and there has been a lot of opposition over the years—there has always been the same reaction of “You’re killing democracy” and so forth.

In the past I was in touch with Knesset members on the right, and they would tell me that something has to be done about the Supreme Court, because they keep striking down the laws that they pass. Now the right is trying to do something, but there is a lot of pushback, and I’m not sure where this is going.

One thing it proves is the extent to which the Court has already seized absolute power, which is why we’re seeing such difficulties now. No one with absolute power gives it up easily. That’s why there has been such intensity in the conflict over this. You would think what’s the big deal? All the government is saying is that they want to be able to appoint some of the judges on the Court, as opposed to the judges having control over all of their successors. In America, there is one person who appoints the whole Supreme Court. In most Western democracies, the judges don’t get to pick the judges. And the judges certainly don’t get a say in the mechanism of picking the judges. The fact that this has become such an explosive issue shows how powerful the Court is.

This seems to be a very clear-cut issue of self-interest. For those who don’t like the right and want a left-leaning Court to strike down the laws passed by the right, this is a great thing to have. It’s not even a value issue; it’s simply the left’s self-interest to retain eternal control over the Knesset.

Right. And the excuse that they use is that the judges are not like normal people; “the judges have no politics.” They say that since the judges are apolitical and neutral, it’s only fair that they select the other judges. The government’s latest proposal is genuinely neutral—when the government is in power, it picks a couple of judges, and when the opposition comes into power, they pick a couple of judges. But why should the left agree to having the current coalition pick any judges, when right now people who are ideologically aligned with them can control the process. I think that this is the best proof that the court is systematically left wing. Does anyone believe that if the court leaned even a little bit to the right that Yair Lapid wouldn’t want the elected government picking judges?

Since Israel doesn’t have a constitution, making up the law as they go along seems to be very arbitrary.

They don’t just make up the laws, they do even more than that. First they decided that some laws have constitutional status—the main example of that being the Basic Law of Human Dignity—because they thought that would let them do the things they want, and it let them strike down other laws. Then they decided that they can strike down government action without any laws. And then they went even further and said that while some laws are constitutional, they get to decide which, and if the Knesset passes new Basic Laws, the Supreme Court gets to decide whether they’re okay. It’s as if the American Supreme Court were able to decide that the 14th Amendment wasn’t a good idea and therefore strike it down.

And it’s so left-leaning that there is a concern among some Orthodox thinkers that they may soon even ban mechitzos.

If the Supreme Court prevails in this current conflict, it will show them that there is absolutely nothing they cannot do. As a result they will probably do even more than they did before. So there’s no going back to the way it was. If the Court isn’t checked now, it will emerge even more powerful.

Assuming that the present government eventually gets its way and passes judicial reform, the other side will go to the Supreme Court, and they will strike down this law as well.

Absolutely. That’s the most shocking thing. The judges aren’t just saying that they have the power to judge any issue within political society and to pick their successors, but they can also decide on the rules for how to pick judges. In other words, it’s more like a politburo than anything in a democratic society.

But if the court strikes down the reform, it would land Israel in a real quagmire.

Yes. It’s going to create a real crisis, but the Court will have stripped itself of any legitimacy. On the other hand, it’s counting on broad groups of government bureaucrats to take its side, and there’s going to be a situation where the Court will claim the authority to rule undemocratically over much of the population with absolutely no possible check. I think that would be a real disaster, and if the Court values its legitimacy in the long term, it would be smart to not say that it has all the power, because it would get much more respect that way from across the political spectrum. But I think it’s going to strike it down and potentially become the enforcement arm of the opposition parties.