Disorder in the Court

In 2015, following lengthy negotiations, President Barack Obama concluded an executive agreement marking the accomplishment of a cherished policy goal: the nuclear deal with Iran known as the JCPOA. Also in 2015, after similarly lengthy negotiations, Prime Minister Benjamin Netanyahu concluded an agreement realizing a long-cherished policy goal of his own: a deal enabling development of Israel’s largest natural-gas field by a private American company and its Israeli partner. Both agreements included a commitment by the respective governments to refrain from adverse legislative action over the next ten to fifteen years: in Obama’s case, action to reinstate nuclear sanctions against Iran; in Netanyahu’s case, action to alter the regulatory regime for natural gas to the disadvantage of the private energy companies.

As it happens, neither country’s executive branch has the authority to bind the legislature without the latter’s consent. But this didn’t trouble either the Iranians or the energy companies; they took it for granted that both executives would use all of the considerable power at their disposal to prevent such legislation, and that sufficed.

But what about the role of the third branch of democratic government, namely, the judiciary? That is where the two stories diverge. The Iran deal was never challenged in an American court. But in Israel, two left-wing opposition parties (Zionist Union and Meretz) and two nongovernmental organizations, alarmed by the encroaching specter of capitalist development, immediately petitioned the country’s supreme court (also known for some purposes as the High Court of Justice) over the gas deal—and won. The court struck down the agreement, saying the government either had to procure legislation enacting the prime minister’s commitment to regulatory stability or renegotiate the deal to exclude the commitment altogether.