According to the Trump plan, the application of Israeli law to some of the territory entails a construction freeze and the start of a process that could theoretically end with a Palestinian state. The plan is very good for Israel, but two steps must be taken to ensure that the blessing doesn't turn into a curse.

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The first step is for Israel and the US to sign a memorandum of understanding in which the US will promise to prevent the establishment of a Palestinian state until the Palestinians fulfill all eight of the conditions of the Trump plan, which they will most likely never do. It is important to remember that Trump won't always be president. Agreement on a map brings us closer to a Palestinian state without the conditions being fulfilled if a less friendly president moves into the White House. A signed memorandum might not bind the hands of another president, but American tradition would make it very hard for that president to ignore it. The memorandum must also include a US commitment to respond appropriately in the case of irreversible Palestinian violations of the plan, either on the ground or in the International Criminal Court.

The second step is to improve the maps attached to the Trump plan. Let's tell the truth: these maps were drawn up in an almost criminally amateur manner. The current maps annex nearly 100,000 Arabs in the area of Biddu and Beit Lakiya to Israel and cut off entire cities from adjacent roads, as well as other elementary mistakes. To make the maps viable, there is no need to institute major changes. The conceptual map gives Israel 32.4% of Judea and Samaria. Maintaining that same percentage, we could apply Israeli law to all settlements and the Jordan Valley, including the allocation of land for settlements; corridors to connect communities, and major transportation arteries (especially Highway 60, including the Hawara and Al-Arus bypasses). None of this would require bringing any Arab village inside the new lines.

Officials on the Right warn that a less-than-optimal map could lead to disaster. But these warnings are unrealistic. Every road we currently use and control would be the same under Israeli law. No road will become the target of snipers and no community will be "choked off by masses of Arabs." Nevertheless, it is very important to insist on details when the maps are being charted. To make it clear that Israel will always remain here, we need to start the process with continuity and sustainability. A map that isn't contiguous or sustainable projects impermanence, thereby undermining the purpose of sovereignty.

There are reports that some representatives of Israel and the US are losing patience, and that the lack of agreement over isolated sections of the map has caused an impasse. We can hope that the obstacle will turn out to be temporary. Both sides want to agree on the maps and the way ahead – only the finalization will require bold negotiations.

It's no surprise that people are losing their patience. Israel is disappointed that the Americans promised to agree to the application of sovereignty immediately after the declaration in Washington, and subsequently changed their minds. The Americans also originally promised that they would allow the needed changes to be made to the map, and then dug their heels in opposition against them.

The Americans were disappointed that the Israeli Right didn't embrace every part of the plan. They were also offended that Israel did not rule out the possibility of Chinese involvement in major infrastructure projects in Israel.

But more importantly, the Americans were amazed to discover that the person who is slated to become prime minister a year and a half from now, Blue and White leader Benny Gantz, isn't at all interested in applying Israeli law to Judea and Samaria, regardless of the map chosen. Since then, their enthusiasm for their own plan has waned, along with their flexibility and patience. The same Israeli political officials who prevented the formation of a narrow right-wing government, arguing that sovereignty was a move that demanded broad support, found out that a prime minister-designate who opposes the move is worse for the sovereignty plan than an opposition leader who opposes it.

But we can find our way out of the mess and reach an agreement that will benefit both the US and the Jewish people. The US will sign a memorandum of understanding, give a little when it comes to the maps, and let us handle our domestic politics on our own. At the same time, Israel should cooperate with the US when it comes to China, and announce that it is willing to adopt the Trump plan in full as the basis for future negotiations. The clock is ticking, but we still have time. 

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The argument omits the obvious: If every difference between the legislature or executive and the court is resolved in favor of the latter, that's not a democracy – that is a juristocracy.

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This is no surprise, as those who prefer juristocracy to democracy usually wish to obscure that fact. Which they can accomplish either by simply renaming juristocracy "substantive democracy," or by pretending the juristocracy one is promoting is a democracy with a few judicial safeguards.

While both approaches are common in Israel, I'll focus here on the second one.

In the United States and pretty much everywhere else, the circumstances in which the court can intervene in actions taken by the other branches of government are very circumscribed. The court's authority is limited to those cases in which a case has been brought by a petitioner seeking redress for harm done to him – that is, a petitioner with standing. Moreover, the court cannot hear cases that are not justiciable – for example, because the matter in question is a political one properly resolved by the other branches.

Furthermore, the court can't intervene in decisions taken by the other branches without very specific grounds; the mere belief that the matter was wrongly resolved by the other branches is not sufficient.

None of these constraints on judicial activity – taken for granted elsewhere – exist in Israel. In Israel, the court itself has done away with requirements of standing and justiciability and routinely disqualifies government actions on grounds that amount to nothing more than disapproval.

It is this system, not the American one, that is being defended so staunchly in Israel.

Nevertheless, one might still be tempted to argue that the court is limited by its dependence on the law, that it has to work with the laws it's given by the legislature and so its ability to make policy is severely limited.

This sounds plausible, but it doesn't hold water. First, the court here makes frequent use of a "made in Israel" doctrine it calls "interpretation by objective purpose," which means that a law should be interpreted neither according to its plain meaning nor according to the legislature's intent, but rather however the court deems appropriate. In short, statutes here do not constrain the bench on any occasion in which the bench does not wish to be constrained.

Second, and more shockingly, the claim that statutes can only be struck down in accordance with constitutional principles is also now being challenged. The court has agreed to hear petitions against the constitutionality of Basic Law: Israel as the Nation-State of the Jewish People.

Since Basic Laws are Israel's equivalent of constitutional legislation, this challenge to a Basic Law's constitutionality is incoherent. The court's agreement to hear this case – with an expanded panel, no less – is tantamount to the claim that nothing is outside its purview, including the constitution itself. ("Otherwise the Knesset will just pass Basic Laws.")

Don't believe me? Here's a test. I invite those who are now defending the court to provide an example of a single situation in which the court disapproves of a law or government action but does not – and, in their opinion, should not – have the authority to intervene. (Careful: an example where the court chooses not to exercise its authority is insufficient; it needs to be an example where it doesn't have the authority.)

Another common argument made in favor of the court runs along the lines that "the judiciary is the least dangerous branch because it doesn't exercise the power of the purse or the sword." However, this claim fails if everybody has standing and every issue is justiciable, because in that case the court can, in effect, issue orders to the Knesset and government not only regarding what it can't do but also what the court insists it must do.

What about the argument that "elected officials are prone to do bad things because they are populists who will do anything to get re-elected, while judges don't need to get re-elected so they protect the rights of minorities"?

Rarely is the anti-democratic sentiment laid out so plainly; not being answerable to the public is presented here as a virtue. I ask you seriously: do you feel more threatened by a relatively large and heterogeneous body that stands for re-election from time to time, or by a small and homogeneous body that has been inbred for generations (sitting justices have an effective veto in choosing their successors), is answerable to nobody, ever, and has consistently extended its own authority?

So let's just put it out there: These sorry arguments for an essentially indefensible claim (and there are others, just as weak) are all just ways of not stating the real argument for the real claim.

The Israeli Supreme Court is a highly politicized body that is especially concerned with the welfare of particularly favored groups, many of which are anything but weak or powerless. Those who share the court's political biases or stand to gain from being in its good graces (like the fat-cat lawyers feigning sudden concern for the future of democracy) loathe to see the court's self-assigned power limited in any way.

This article is reprinted with permission from JNS.org.

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