https://www.israelnationalnews.com/news/426027
The price of Israel’s judicial tyranny
The court and a legal bureaucracy - that were never elected -increasingly treat democratic choice itself as a dangerous force to be contained by a permanent enlightened class. And the outrage is growing.
The hearing is over. The threats were not carried out in full. National Security Minister Itamar Ben-Gvir was not thrown out of office as Attorney General Gali Baharav-Miara wished despite it not being within her purview. But anyone tempted to breathe even half a sigh of relief has missed the deeper scandal.
Israel’s High Court of Justice has now made unmistakably clear that it sees itself as entitled to sit in judgment not only over laws, regulations and administrative procedures, but over the composition, direction and practical freedom of an elected government. The court may have stopped short, for now, of ordering Prime Minister Benjamin Netanyahu to fire Ben-Gvir. Yet it still moved to narrow the minister’s operational latitude and pushed for a renewed arrangement, brokered through the attorney general, to limit his involvement in "sensitive" policing matters, appointments and law-enforcement decision-making.
That is not restraint in the ordinary democratic sense. It is the tyranny of judicial rule strategically advancing by increments.
The issue is not whether one likes Ben-Gvir. One may support him, oppose him or distrust him entirely. That is beside the point. In any functioning democracy, the identity of ministers is first and foremost a political question. Ministers are chosen by elected leaders who answer to voters. Judges are not supposed to function as a supervisory politburo hovering above the electorate, deciding which ministers may remain in office, under what constraints, and on what judicially approved terms.
And yet that is precisely the direction in which Israel’s legal establishment has been dragging the country for decades.
This did not begin yesterday. It is the long, poisonous harvest of the Aharon Barak revolution. Barak’s famous doctrine that “everything is justiciable" was never merely a jurisprudential observation. It was an imperial manifesto. Once everything becomes justiciable, nothing remains outside judicial appetite. Cabinet appointments, coalition agreements, military tactics, police policy, administrative discretion, public morality, national security judgments - all of it becomes potential fodder for legal supervision by a class that long ago ceased seeing itself as interpreter and began seeing itself as superordinate ruler.
That is the real constitutional crisis in Israel. Not the one endlessly invoked by the same people on the left who cheer every judicial incursion into the powers of elected officials on the right. Not the melodramatic slogans about “saving democracy" deployed whenever the "unenlightened" rabble protest judges seizing more power and ministers losing more authorities. The real crisis is that a court and a legal bureaucracy that were never elected increasingly treat democratic choice itself as a dangerous force to be contained by a permanent enlightened class.
And then, with breathtaking but already unsurprising hypocrisy, the very people who fuel this crisis present themselves as guardians of democracy and the rule of law against the forces of extremism and the unacceptable choices of the primitive electorate.
Listen carefully to the rhetoric of Israel’s self-appointed defenders of democracy. Every effort by elected officials to reassert authority over policy is hotly denounced as authoritarian. Every attempt to draw boundaries around judicial intervention is loudly branded a coup. Every effort to restore the primacy of voters over jurists is indignantly described as the end of the rule of law. But when judges and legal officials push deeper and deeper into the functioning of government, suddenly we are told this is moderation, constitutionalism and enlightenment.
What they call “checks and balances" has become, in practice, one-directional political strangulation. The checks nearly always fall on the same side. The balances nearly always tilt in the same direction. The voters are permitted to choose, but only within “enlightened" parameters set by a legal caste that reserves the final word for itself.
Ben-Gvir’s case lays this bare. The attorney general argued for his removal. The court did not go that far. But even in declining the most dramatic step, it reinforced the principle that unelected legal actors may continue negotiating, supervising and restricting the powers of an elected minister in the heart of his ministry.
What kind of democracy is that? One in which ministers govern only so long as the juristocracy is willing to tolerate the terms of their governance?
This is no longer merely judicial review. It is an anti-democratic pretension to rulership.
And there is a price for it.
The first price is governmental paralysis. A country at war, under internal strain, facing security threats on multiple fronts, cannot function coherently when every major decision is liable to be converted into a petition and every petition into an opportunity for judicial management.
The second price is moral confusion. Citizens are taught that their votes matter greatly, except when they do not. They are told they live in a democracy, except that the most consequential questions may be revised by officials they never chose and cannot remove.
But the third and deepest price is the erosion of legitimacy.
A court has no electorate and no independent democratic mandate. Its real power rests on public confidence, on a broad willingness to believe that however imperfect its rulings may be, it is at least trying to apply law rather than ideology. The more aggressively the court inserts itself into politics, the more it squanders that reserve. The more it behaves like a ruling class, the more Israelis will see it as one.
People do not trust tyrants - and they do not like being tyrannized.
That is the court’s great self-inflicted wound. In its relentless appetite for control, it is consuming the very legitimacy on which its authority depends. Every selective invocation of “reasonableness," every elastic theory of standing, every intervention that somehow always lands on the same side of the political divide teaches the public to see not neutral judges but partisan governors in robes.
The public is not stupid. It sees who is almost always restrained, who is almost always blocked, and which camp repeatedly benefits from judicial intervention. It sees that the so-called enlightened camp screams “constitutional crisis" whenever elected leaders push back, even as it actively foments precisely such a crisis by encouraging the judiciary to invade domains that do not belong to it.
That is why the outrage is growing. Not because Israelis have suddenly ceased caring about law, but because millions of them increasingly suspect that what is being defended in the name of law is in fact the political supremacy of a narrow elite that no longer trusts the people.
A Jewish and democratic state cannot endure indefinitely under judicial tyranny. It needs a court that is strong but bounded, independent but not sovereign, respected but not worshiped. It needs judges who understand that their role is to interpret the law, not to domesticate democracy.
The Ben-Gvir affair is not the end of this story. It is another chapter in the long campaign to subordinate the will of Israeli voters to the supervisory authority of unelected legal guardians. The court may not have fired him. This time. But by asserting again that it may police the boundaries of elected power from above, it has reminded Israelis of the heavy price they are being asked to pay: a price in governance, a price in trust, and above all a price in the legitimacy of the court itself.
https://www.israelnationalnews.com/news/426027
