The Erosion of Public Trust in Israel’s Judiciary Is Real—and Unusual

Many thanks to Haviv Rettig Gur and Jeremy Rabkin for their thoughtful responses to my essay, “Disorder in the Court.” Both make valuable points. If I begin with and focus the major part of my comments on Gur, it is because he rightly highlights a major contributor to the problem of judicial activism: namely, the Knesset.

My essay touched on some of the reasons for the Knesset’s passive acquiescence in the activism of Israel’s supreme court, and I’ll expand on those reasons later. But the fact remains that judicial imperialism could not persist had parliament not consistently declined to use its legislative powers to restore some checks and balances, thereby abdicating its own responsibilities as a coequal branch of government. Nevertheless, I take issue with Gur’s contention that the court expanded its reach largely to fill a vacuum left by parliament’s refusal to decide crucial issues. There are indeed cases in which the court has been forced to fill legal lacunae left by the Knesset, but they’re rare. Mostly, such lacunae exist only if you accept, as Gur seems to do, the court’s own contention that the Knesset must decide all major issues itself rather than delegating such decisions to the executive branch.

In reality, that isn’t how legislation works in any democracy. It’s standard practice for legislatures to pass bills that lay down general principles while leaving the executive to fill in the details through regulation. Letting a few experts sort through the details is simply more efficient than having dozens of non-expert legislators wrangle over every possible question that might arise. And sometimes there are also good substantive reasons for keeping those details out of primary legislation.