Justice, Justice Thou Shalt Review

Rabbi Shai Cherry
Rabbi Shai Cherry (Courtesy of Rabbi Shai Cherry)

Rabbi Shai Cherry

The judicial reforms being ramrodded through the Israeli parliament, the Knesset, have galvanized Israelis as well as those outside the country who are committed to Israel’s peace and prosperity.

Up to half a million Israeli protesters, in a country of fewer than 10 million people, have gathered weekly since this legislative coup breached the Knesset. The protesters are determined, as are their allies, to thwart the judicial reforms initiated by a coalition of the illiberal, the criminal and the religiously fanatic.

These judicial reforms would sabotage Israel’s democracy.

Illiberalism, according to Professor Marlene Laruelle of George Washington University, “is a strain of political culture, a set of institutional reforms (such as assaults on an independent judiciary) and broader societal processes (such as declining trust in liberal democratic institutions) that, over the past two decades, has emerged in response to liberalism. … Adherents of illiberalism argue that, in the face of a liberalism that has ‘gone too far,’ it is time to reassert the rights of the collective, or of an alleged silent majority, by … preferring a strong leader with large powers over a parliamentary system … [and by] refusing multiculturalism and minority rights. …”

Israel’s assault on the judiciary is led by a prime minister who is standing trial for corruption. One of the judicial “reforms” would allow the government to reinstate Aryeh Deri, previously convicted of bribery, fraud and breach of trust, to his previous position as a minister. Another “reform” would essentially eliminate judicial review, potentially shielding the prime minister from future criminal convictions.

In the United States, the principle of judicial review — the ability of the judicial branch to pronounce on the constitutionality of any particular piece of legislation — was established by the 1803 decision Marbury vs. Madison.

As Israel approaches its 75th anniversary, she still has no constitution. Nevertheless, Israel does have a Declaration of Independence guaranteeing “complete equality of social and political rights to all Israel’s inhabitants.”

Who guards those rights if not the judiciary?

Our Founding Fathers foresaw the dangers of the tyranny of the majority. “[A majority may] sacrifice to its ruling passion or interest both the public good and the rights of other citizens” (James Madison, Federalist Paper #10). Alexander Hamilton proffered the solution: “[It is the duty of the courts] to declare all acts contrary to the manifest tenor of the Constitution void” (Federalist Paper #78).

In other words, judicial review.

The mere existence of Israel’s Constitution, Law and Justice Committee speaks to the unfinished imperfection of Israel’s system of governance. But the proposal for judicial reform would exacerbate those imperfections by neutering the power of the courts to declare laws void that violate individual rights. Members of the governing coalition have made no secret of their desire to deny rights both to non-Jewish Israelis and non-Orthodox Jews.

As an American, I oppose this version of judicial reforms because it tilts Israel from democracy toward authoritarianism. Thomas Nides, the American ambassador to Israel, echoed Israel’s president in calling for a suspension of the legislative blitz to negotiate a compromise that better reflects a broader base of the Israeli electorate. Amichai Chikli, Israel’s inaugural Minister of Diaspora Affairs, told him to “mind his own business.”

Telling the ambassador of the country that provides $3 billion a year in aid to Israel to “mind his own business,” calls into question more than Chikli’s diplomatic bona fides.
As a rabbi, this version of judicial reform is a betrayal of the most sacred tenets of Judaism. Well before our own Declaration of Independence in the age of the Enlightenment, the Book of Genesis announced the radical, countercultural claim that all people were created in the divine image. Everyone possesses inherent dignity.

The Torah’s laws are geared toward protecting that dignity through the pursuit of justice.

Alas, the Israeli government is pursuing unchecked power to deny others the dignity of their humanity.

To paraphrase David Ben-Gurion, American Jews must fight these judicial reforms as if there were no terrorists, antisemites or anti-Zionists. And we must fight the terrorists, antisemites and anti-Zionists as if there were no judicial reforms.

Shai Cherry is the rabbi at Congregation Adath Jeshurun in Elkins Park.



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