Israeli Legal Expert Calls for Separate Constitutional Court to Stabilize Judiciary

On the occasion of Tisha B'Av, a day symbolizing destruction, Professor Moshe Cohen-Eliya warns that Israel faces internal disintegration as political factions no longer recognize each other's legitimacy, turning state institutions into weapons in internal conflicts. He argues that the current Supreme Court of Israel, which evolved from a restrained administrative court during the British Mandate into an activist court under Aharon Barak, has reached the end of its functional path. Since 1995, the court has acted as a de facto constitutional court without democratic appointment mechanisms, culminating in 2024 with a ruling that entrenched a judicial supremacy system unique among democracies, where judges hold sovereign power rather than the people.

Cohen-Eliya proposes replacing the current Supreme Court's constitutional role with a separate constitutional court, whose judges would be appointed by the Knesset with a supermajority vote and serve fixed terms. This court would handle constitutional matters such as invalidating laws and resolving disputes between government branches, while the Supreme Court would revert to its role as the highest appellate court for civil, criminal, and administrative cases. He emphasizes that the key issue is not the constitution's wording but who interprets it, highlighting the importance of a pluralistic and democratically legitimate judicial appointment process.

The proposed constitutional court would provide clear democratic legitimacy for judicial power, separating professional legal adjudication from political-constitutional decisions. This structure would also address concerns about politicization raised against recent judicial selection reforms, such as the Levin-Saar plan, by confining political appointments to the constitutional court while maintaining professional selection for ordinary courts.

Cohen-Eliya suggests that this reform could be implemented swiftly and legitimized through a national referendum following a special Knesset majority vote, ensuring broad public support and preventing claims of elite imposition. He frames the reform as a constructive rebuilding effort rather than retribution against the Supreme Court, aiming to protect democracy, liberty, equality, and public trust in the judiciary. Ultimately, he warns that stabilizing Israel's "third house", its judicial system, is essential to prevent the current conflict over the court from escalating into a civil war.