The Problem Starts in the Knesset

In “Disorder in the Court,” Evelyn Gordon covers a great deal of ground in her systematic review of, and commentary on, Daniel Friedmann’s book-length critique of Israel’s judiciary. In many ways, she succeeds admirably.

Gordon’s points about the supreme court’s radically expansive definitions of justiciability and standing; its use of “human dignity” as a catch-all rubric under which to invent constitutional rights that the legislative branch of government has explicitly declined to create; its influence over judicial appointments; and more—these are compelling items in a bill of particulars against an abnormally interventionist court, certainly when compared with supreme courts in the rest of the democratic world. It’s hard to read this essay, or others by Friedmann or by Gordon herself over the years, without sharing a great deal of their assessment of the court’s overreach.

And yet, unlike either Gordon or Friedmann, I cannot place the blame for the court’s immense power entirely on the shoulders of supposedly wanton and power-hungry justices. The court’s relationship with the legislative and executive branches takes place not in an abstract legal realm but in a concrete political one. And there, in the tug-of-war among institutions, one finds a court whose power has grown mainly not by its own legal innovations but in tiny increments, over many years—and, crucially, almost always in response to a vacuum of governance left by the state’s other branches. This is true even when the justices themselves, with the former chief justice Aharon Barak in the vanguard, have claimed the opposite.