The protesters taking to the streets are concerned that the proposed judicial reforms will result in unchecked powers. This is a valid concern: The checks and balances between the three branches of government are the foundation of democratic life.
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But what if the judiciary is stronger than the other two branches and lacks proper restraints?
Currently, there is nothing that checks its powers except the justices' own free will and values. The anti-reform demonstrators have faith in those sitting on the highest court of the land – perhaps because they share their values. But many others do not have such confidence in them, having seen how they let their personal worldviews shape their rulings, especially on issues of religion and state, security, and nationhood.
The proponents of the reforms have for years seen how their freedom to decide on hot-button issues was time and again taken from them. Other than protest, they couldn't do anything because the court disagreed with them: It gave Israel's Basic Laws a special status even though the Knesset never gave it the right to do so. For a certain segment in Israeli society, it has been very convenient to have the courts "do its bidding" whenever there are insufficient votes in the parliament; among the justices, this camp has enjoyed a permanent majority on the bench.
Yes, Basic Laws are de facto chapters of a constitution and even the Supreme Court itself can make rulings based on Basic Law: The Judiciary. But it cannot rule on them because the court is not above the basic laws. But what stops the court from ruling on Basic Laws? Nothing, currently. It could decide to strike down Basic Law, and then the government would have to accept the ruling in order to avoid a constitutional crisis. This is how, in the name of "substantial democracy", the court is undermining the very tenets of democracy. Why do we even bother electing members of Knesset if ultimately it is the court that decides what government laws and decisions are reasonable based on the justices' own views?
By granting itself the authority to rule on basic laws, the court's strength has become unparalleled compared with any other judicial branch in the world. Such power corrupts even the most righteous. This week's weekly Torah portion includes the verse, "You shall take no bribe, for a bribe blinds the eyes of those who have sight and perverts the words of the righteous" (Exodus 23:8). We normally see this prohibition as something that is directed at public officials, but it was originally about the judges in biblical times. The Talmud tells us that bribes can also take the form of one of the parties trying to cozy up to the judge in order to get a favorable ruling. If this was a danger in private cases, this is all the more relevant when issues of national importance reach the court.
A situation where justices enjoy unlimited power and are assumed to have better judgment than elected officials could result in blinding their eyes to the point that they don't see their fellow compatriots; it could also pervert their rulings so that they are slanted toward the social circle they belong to.
Israel is a Jewish democracy. The Law of Return is an existential part. Would there be anything that could stop the court from striking down that law if it decided that it is discriminatory and violates Basic Law: Human Dignity and Liberty? Are you, the protesters who have resisted any type of reform to the judiciary, certain that such a situation would never see the light of day? I am not; and neither are many others like me.
Human rights are first and foremost about the right of an individual to determine their own fate through the ballot box. Israelis have never placed their independent thinking and values in the hands of a judicial oligarchy, however smart it may be; we elected this government for this purpose – to win back our freedom.
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