Those who support legal criticism of the so-called nation-state law base their argument on the principle that the judges' role is to "protect us from our representatives." In their view, there is a concern that Knesset members will use the authority given to them by the people to undermine the democratic structure and destroy it by legal means.
This claim, however, in and of itself strives to undermine the fundamental concepts of the democratic system. It's an accepted assumption that in a democratic country, political decision making is the implementation of the majority's will. Elected government authorities play a large and sometimes exclusive role in the process of political determination. In the Israeli system, not only are daily political matters determined by elected representatives, but also legislative amendments – similar to many other countries across the globe.
Accordingly, judicial intervention in the legislative result is only justified in two instances. When there's a threat to the fundamental values necessary for the proper functioning of the democratic system – for example the right to elect and be elected, freedom of expression and the principle of political equality – or when procedural conduct is lacking and gives rise to concerns that the voter's will won't be fulfilled; for example in cases of voter fraud or breach of election propaganda protocol. Beyond these two instances, the court should not have the legal authority to criticize basic legislation. Why?
First, judicial criticism that deviates from upholding the most basic democratic "rules of the game," raises fears that the judiciary elite is exploiting its authority to impose its worldview, in contravention of the public's will. The claim that elected public officials sometimes do their job badly does not justify the transfer of authority to the court or its intervention in the legislative body's decision-making process. The lack of trust when it comes to elected officials can also be applied to the judges themselves.
Second, the purpose of the democratic process is to implement the public's desire. The attempt to pre-define the "public's deeper conceptions" and to lean the judicial system on these concepts undermines the natural possibility that the public can organically define a comprehensive value system on its own. This is sheer paternalism, as if the judicial elites know better than the public what's best for it. Moreover, this approach raises the complex question: Is it even possible to vote for one concrete value system or another in a pluralistic country?
And finally, even under the assumption that there's a "right answer" to political disagreements, ultimately the democratic system's main task is to give the public a political decision-making mechanism, through which it will determine the basic principles and shape the political framework as it sees fit. This process needs take place without the intervention of opinion mediators – such as the judges – even at the cost of making the wrong decision. From a democratic perspective, the judges don't have a clear advantage over the public when it comes to questions of politics and values.
These arguments trigger a flashing warning: Granting the "15-member association of legal guardians" authority to discuss the possibility of annulling the nation-state law, and thereby molding the country's values, is essentially a recipe for establishing a "judiciocracy."
Imagine one day that the Supreme Court is populated by justices for whom Israel's democratic (or liberal) character doesn't coincide with their personal worldview. What will stop them from terminating other basic laws, such as Basic Law: Human Dignity and Liberty? Under the current conditions, nothing.
Anyone who trusts the public and wants to protect it must also be capable of trusting elected representatives to express its positions. The public is quite adept at keeping representatives who accurately and appropriately express its views, and getting rid of those who fail to do so. Any other approach means surrendering the public and democratic will and cultivating a judicial tyranny – even if it calls itself "liberal."
