Attorney Says Israel's Supreme Court Expanded Its Power Beyond Its Proper Role
Attorney Lior Katz argues in an interview with Channel 7 that since the 1990s Israel's judicial system has steadily taken power from the legislature and the executive, limiting the right wing’s ability to govern even during decades of mostly right-wing rule. He says former Supreme Court President Aharon Barak introduced judicial activism and the idea that “everything is justiciable,” allowing the court to strike down Knesset and government decisions without new legislation defining the court’s limits.
Katz says the change happened gradually through precedent, not through formal law, in a country without a constitution and with gaps in its legal framework. He says Barak used that vacuum, contrary to Basic Laws, to let the Supreme Court shape Israel’s constitutional order through rulings. He adds that the court first tried to avoid security matters, citing the late Meir Shamgar’s view that some security, value-based and policy issues should not reach the Supreme Court, and that Shamgar also narrowed standing before the High Court of Justice.
According to Katz, public petitioners, mainly from the Israeli left, especially those advancing Palestinian rights and civil rights, repeatedly turned to the High Court because they lacked the electoral majority to advance their agenda in the Knesset. He says the broader public, especially the right, now increasingly understands that it elected right-wing governments expecting certain policies, but the Supreme Court blocks many of them. He notes that since Menachem Begin, most prime ministers, including Yitzhak Rabin, Yitzhak Shamir, Ariel Sharon and Benjamin Netanyahu, have respected the judiciary, while Amir Ohana took a more confrontational line and Justice Minister Yariv Levin pushed the judicial overhaul further.
Looking ahead, Katz says Levin believes the next term could bring change through appointing nine or ten Supreme Court justices who are conservative and not activist. Katz is skeptical, saying even judges appointed by Ayelet Shaked did not always defend the court’s boundaries. He says the real solution is legislation, especially a Basic Law on legislation that would define when courts can intervene, the scope of reasonableness review, when laws can be struck down, and where judicial review should stop. Katz cites Justice Yosef Elron’s farewell remarks that the court has entered political, ideological, foreign policy and security issues, and warns that the court’s authority depends on public trust, which he says is eroding. He concludes that restoring clear limits is necessary to prevent a constitutional crisis.
