Reversing the ‘Constitutional Revolution’: The Israeli Government’s Plan to Undermine the Supreme Court’s Judicial Review of Legislation–LAWFARE
Editor’s note: The first article in this series described Israel’s “constitutional revolution” of the 1990s, which resulted in the Supreme Court exercising powers of judicial review over Knesset legislation. This article describes in more depth how the Supreme Court used its authority, why it encountered a backlash, and what current proposals to limit the power of the Court to exercise judicial review over Knesset legislation look like.
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The Levin and Rothman proposals are directed to weaken the power of the Supreme Court to exercise judicial review of Knesset legislation. In fact, if they pass as is, it would mean, in practical terms, the end of judicial review of Knesset legislation. Even in the rare cases in which the Court would strike down legislation, the Knesset will be able to either override it or re-enact it as a basic law, thereby avoiding judicial review. Given that coalition governments control in Israel both the executive and legislative branches, the radical weakening of the Supreme Court, as proposed by Levin and Rothman, would result in a drastic change in the allocation of powers across the branches of government, especially when other changes they propose in the realm of judicial appointments, administrative law review, and the independence of government legal advisers are also considered.
The radical nature of these proposals is well captured by a recent legal opinion published by Knesset legal advisers who expressed strong opposition to the draft bill submitted by Rothman (which was submitted to them for legal analysis).
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