I have given a semi-public lecture on the Israeli judicial reforms in comparative-institutional perspectives three times since late March. Now, with the permission of the hosts, I have uploaded one of them to YouTube.
In this lecture I offer my perspectives on the proposed judicial overhaul in Israel, speaking as a specialist on constitutional design of democracies around the world, as well as someone who has followed and taught about–and sometimes published on–Israeli democracy for years. I gave this for Congregation Beth Israel in Ann Arbor, Michigan, at the invitation of my friend, Rabbi Nadav Caine, who also serves as host of the lecture.
I have run across various articles, tweets, and other items decrying an unbridled “majoritarianism” in Israel, as the current government moves rapidly towards granting parliamentary majorities control over the previously independent judiciary.1 One example of the genre is by Natan Sachs for Brookings, which refers to “Israel’s majoritarian nightmare.”
For those of us who are familiar with Arend Lijphart‘s work, this characterization of Israel comes as quite a surprise. Consider that his Patterns of Democracy rated Israel the third least majoritarian of his set of democracies. I am referring to his “executives-parties” dimension. The other dimension Lijphart calls “federal-unitary.” This includes judicial review, so it is relevant here, too. But I will focus on executive-parties. (Israel is highly unitary—no regional governments of any real powers.) Lijphart’s graph of his two dimensions is shown below. Note how Israel (ISR) is plotted the upper-left corner. On the executive-parties dimension, it is among the furthest to the left, corresponding to the consensus democracies on this dimension.
Source: From Arend Lijphart, Pattens of Democracy, Yale University Press, 2012, p. 244.
So Israel, according to Lijphart, is one of the highly “consensus” democracies—the opposite type to “majoritarian.” What does he base that on? Several things, but key factors are:
Use of proportional representation. No argument here.
Tendency for (a) short-lived cabinets, which are (b) often oversized (contain at least one party that could leave without depriving the government of its parliamentary majority).
It is 2b that is the rub now. The current cabinet is anything but oversized. It is a minimal winning coalition with a bare majority. It consists of only right-wing parties (unusual, as Benjamin Netanyahu’s past coalitions have never had his Likud as the left-most party in the cabinet). It has just 64 seats (of 120).
This is not the first such cabinet, however. When did Israel last have a cabinet that was minimal winning with a bare majority? Not so long ago! The one in question was not ideologically narrow (far from it!), but it was politically narrow. I am referring to the “change” government led by Naftali Bennet and Yair Lapid, which was in power in 2021-22, and about which I mused whether it was “majoritarian” or “consensus.”
So perhaps we might criticize Lijphart for using a behavioral indicator (e.g., how big and broad coalitions tend to be) for what is mostly an institutionally based typology of majoritarian vs. consensus democracy.
There’s nothing is Israel’s constitutional rules requiring oversized or diverse coalitions, after all. Examples of features that might impel political leaders to build oversized coalitions (if not outright require them) might be strong bicameralism, whereby government leaders want to ensure a majority in both chambers, or a detailed and entrenched constitution, which might lead to governments with super-majorities because their policy agenda requires constitutional amendments. No such features are to be found in Israel.
We might note that the role of the courts—and just about everything else—and the constitution itself (Basic Laws) always could be changed by a bare majority. Other than some specific provisions, the Basic Laws that map out the functioning of the Israeli political system and define limits on government authority (e.g., protecting rights) are subject to change by a Knesset majority.2 Questions of court powers and ease of constitutional amendment are features of a democracy that Lijphart places on the federal-unitary dimension (which always struck me as a little odd, actually).
In other words, it has always been the case that the judiciary had the powers it had–such as the ability to strike down a regular law as being inconsistent with a Basic Law–only because a majority in parliament had never acted to say it did not have such powers. Moreover, the Knesset had passed legislation setting up very independent processes of appointing supreme court justices and other judges and the attorney general. Almost none of the supposed overreach that proponents of judicial reform are moving to change was ever codified in the constitution (i.e., a Basic Law). Yet a Knesset majority at any time could have codified such powers–or limited or abolished them. That is arguably a pretty non-consensus feature of any political system!
So at the end of the day, what is a “majoritarian” democracy? One that typically has single-party bare-majority governments and limited checks on what the government can do (in a nutshell, Lijphart’s definition)? Or one in which a parliamentary majority encounters limited checks, whether or not coalitions or single-party governments form?
Over time—and well before Israel’s current move to cut judicial power—I have come to believe that this second definition better suits “majoritarian”.
When a parliamentary majority is unchecked, but there is a multiparty system, we might ordinarily expect that coalitions will be short lived and will shift, meaning no single combination of parties comprising a bare majority is likely to remain in power for long.
A system bare-majority coalitions certainly describes Israel since about 2018 quite well. (The government formed in 2015 was initially oversized but became minimal winning when Avigdor Lieberman’s Yisrael Beiteinu defected. That defection help precipitate the deadlock with four elections 2019-21 and yet another in 2022.)
We do not know, of course, how long this current government will last. Its members are sure acting like they know it could break apart at any moment. Earlier I noted that one of the criteria for “consensus” government, according to Lijphart, is short-lived cabinets. This maybe has not changed!
But Israel in 2023 sure does not look like a “consensus democracy” anymore.3
And the root of why it does not is inherent in its rather extreme case of parliamentary-majority sovereignty, but also rests on contingent factors like Netanyahu having burned bridges with center-left parties (and even right-wing parties that joined the previous “change” government).
Israel in 2023 thus stands as a significant case for understanding how we think about patterns of democracy more generally.
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Notes
1. I will not attempt to summarize the entire package of judicial overhaul measures. But the key features are to give the government a majority on the judicial appointments commission, to require a super-majority (in some versions, unanimous) decision of the Supreme Court to declare a law unconstitutional (i.e., in conflict with a provision of a Basic Law), and to allow a Knesset majority to override any such declaration of unconstitutionality.
2. In many cases, moreover, that need not be an absolute majority (61) but merely a plurality. For instance, two of the Basic Laws on which the Supreme Court has based many of its rights-broadening rulings were initially passed with well fewer than a third of members voting in favor (with many abstentions), although some subsequent amendments to these Basic Laws obtained large majorities.
3. And not only because of the unusual situation for PR-coalitional parliamentary systems by which the current government rests on a manufactured majority: The parties comprising the cabinet collectively won less than half the vote. (Manufactured majorities are, of course, common in majoritarian democracies.)
It would be hard to exaggerate just how much the US model of supreme court has been rejected by the modern democracies of the world. On three dimensions, the US model is really rare: appointment procedure, tenure, and size. And, yes, we should be actively pursuing reform in all these dimensions.
I am going to reference the data in A Different Democracy, which covers 31 countries.
Countries that allow a popularly elected president to nominate, contingent on consent of a malapportioned second legislative chamber, with no extraordinary majority needed:
2 (Brazil, US)
(Two others are by president and 2/3 of senate: Argentina and Mexico)
Countries that provide life tenure to supreme court judges:
3 (Argentina, Denmark, US)
Countries with top court having fewer than 12 members:
7 (Argentina, Australia, Brazil, Canada, Mexico, New Zealand, US)
Countries with all these characteristics: 1
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In general, other countries either require extraordinary legislative majorities (such as cases mentioned above) or involvement by non-partisan commissions. Many have terms of several years (usually longer than those of the elected bodies), although quite a few have retirement ages (usually 70 to 75, sometimes younger).
Parliamentary systems often have appointment by the cabinet, and while that sounds quite partisan, I am not aware of other countries that have such politicized appointments as the US has nowadays. There may be some clear reasons why formal executive discretion over supreme-court appointment is not a source of controversy in established parliamentary democracies (to my knowledge), but I can’t claim to know what those reasons are.
It is noteworthy that presidential systems have mostly moved away from anything looking like the US model, and for good reason. The processes that most resemble the US would be those of Argentina or Brazil, not normally countries Americans want to consider peers in terms of democratic process, but actually comparisons that are quite apt.
(Also: not considered here, but covered in the book, is that several countries have constitutional review in a separate tribunal rather than in the apex court. Most such countries are civil law jurisdictions.)
Excellent, succinct post by G. Elliot Morris about the fundamentally undemocratic (and, yes, unrepublican) nature of American political institutions.
Tyranny of the Minority
Despite what the founders intended, the Supreme Court is now fully able to be controlled by a significant minority of the country’s voters. Of course, it is not a popularly-elected branch of government, but there are costs associated with minoritarian rule that transcend the original intent of the founders.
Now that indictments have been announced against the (outgoing–dare I say?) Prime Minister of Israel, it is worth reviewing the institutional basis of the office of Attorney General in Israel.
I am seeing some casual takes on Twitter about why the US doesn’t have an Attorney General who takes a tougher line against law-breaking at the top of government. But the offices could hardly be more different. The US Attorney General is a cabinet appointee. The President picks who holds that position, subject only to Senate majority confirmation. Of course, Trump has had a highly compliant Senate majority throughout his presidency.
Trump could not have had occupants of the office that have been as awful for the rule of law as they have been, if the office were structured like Israel’s. So it is worth sketching how the process of appointing the Israeli Attorney General works. My source for this is Aviad Bakshi, Legal Advisers and the Government: Analysis and Recommendations, Kohelet Policy Forum, Policy Paper No. 10, February 2016.
a. There shall be formed a permanent selection committee that shall screen suitable candidates, one of which shall be appointed to the position by the government. The term of each committee shall be four years.
b. The chairman shall be a retired justice of the Supreme Court who shall be appointed by the President (Chief Justice) of the Supreme Court upon the approval of the Minister of Justice, and the other members shall be: a retired Minister of Justice or retired Attorney General appointed by the government; a Knesset Member elected by the Constitution, Law and Justice Committee of the Knesset; a scholar elected by a forum comprising deans of law schools; an attorney elected by the Israel Bar Association.
c. The AGI term duration shall be six years, with no extension, irrespective of the term of the government.
d. The government may remove the AGI from his position due to specific reasons.… These reasons include, in addition to personal circumstances of the AGI, disagreements between the AGI and the government that prevent efficient cooperation. In such an event the selection committee shall convene to discuss the subject and shall submit its opinion to the government, in writing. However, the opinion of the committee is not binding, and the government may decide to remove the AGI contrary to the recommendation of the committee. The AGI shall have the right to a hearing before the government and before the committee.
All of this makes for a reasonably independent office. Even if appointment and dismissal are still in the hands of the government, the screening and term provisions make it an arms-length relationship. The occupant of the post is obviously not a cabinet minister, as in the US, and is not a direct appointee of the head of government or the cabinet.
Worlds apart, institutionally.
And this is even before we get into the parliamentary vs. presidential distinction. A president is–for better or worse–meant to be hard to indict, let alone remove. That’s why the main tool against a potentially criminal executive in the US and many other presidential systems is lodged in the congress, through impeachment, and not in a state attorney. A prime minister in a parliamentary system, on the other hand, by definition has no presumption of a fixed term.
The normal way to get rid of a PM is, of course, a vote of no-confidence or the PM’s own party or coalition partners withdrawing support. But that’s the point–they are constitutionally not protected when the political winds, let alone the legals ones, turn against them.
In the broader institutional context of a parliamentary system, it is presumably much easier to take the step of also designing an independent Attorney General’s office that has the ability to indict a sitting head of government.
On the other hand, there is still no obvious way to remove Netanyahu from office any time soon, unless his own party rebels against him. Even though Trump’s own party will probably block the super-majority in the Senate needed to remove him from office*, the resolution of the case against Trump might happen considerably sooner than any resolution of Netanyahu’s case. Barring a rebellion by his current allies, Netanyahu may remain PM for another 4-5 months, through a now-likely third election (since last April) and the post-election coalition bargaining process.
* Assuming the House majority impeaches him, which now looks all but inevitable.
According to the transcript of the Democratic pre-candidates’ debate (night 2), Bernie Sanders said:
I do not believe in packing the court. We got a terrible 5-4 majority conservative court right now. But I do believe that constitutionally we have the power to rotate judges to other courts. And that brings in new blood into the Supreme Court…
I would not pretend to know what Bernie meant. He says some strange things. But the Constitution is pretty brief on structure of courts. Let me try to imagine what he meant, and consider whether it could be constitutional.
Could legislation establish that there is a wider panel of appellate justices from which Supreme Court justices are drawn for periods of time? I am certainly not a constitutional lawyer, but maybe.
In Article III, Section 1, the US Constitution states, in part,
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…
So we know from this that how “inferior courts” are structured is up to Congress, and that individual judges can’t be subjected to a term of some set length, without a constitutional amendment.
We also know, from Article II, Section 2, that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.” No other judges of any court are mentioned. So legislation could establish the inferior court judges are appointed by the Supreme Court, for example (a model that is actually used in some countries). But the point about “rotation” raised by Sanders is the reverse: could members of the Supreme Court be drawn from other courts, rather than be sitting on a permanent body?
I do not see why not. The judges as individuals can’t be dismissed except for violating “good behaviour”. But could not Congress establish that the President, at set periods, appoints (with advice and consent) judges from the Circuit Courts to sit on the Supreme Court, who at set periods rotate back to their “inferior” courts? The only obstacle that becomes immediately apparent to me is if the specific court (Supreme or inferior) a judge sits on is considered part of his or her “Compensation” (capital C in original, Article III, Section 1). But if all judges in these courts are accorded the same salary and benefits, then maybe the Constitution actually does permit some sort of rotation.
Now, I am not saying that Sanders is clever enough to have thought it though the way I just articulated. Nor I am claiming that I have not overlooked some other constitutional obstacle. But the Constitution is a lot more vague than folks might think when it comes to stipulating how the federal judiciary is structured. Most of that is left to Congress.
Protests in Poland have been making international news. The object of the protests is the government’s plans to undermine the independence of the judiciary. The case illustrates several important points about how political institutions affect policy (and can have potential international repercussions). The escalation of the crisis over these plans in recent days makes the decision some months ago to lead with Poland’s 2015 elections and their aftermath in the forthcoming Votes from Seats look like a good one.
We (Rein Taagepera and I) use the case to demonstrate how seemingly small institutional details can tip outcomes in favor of a party with a strong agenda that might undermine democracy itself. (Yes, the very first example mentioned in the book is the US presidential election of 2016.)
The background is that the Polish ruling party, Law and Justice (PiS) has a majority of seats in the first chamber of the assembly (the Sejm). PiS also holds the presidency. It has a manufactured majority, despite the use of a proportional representation system. In fact, the party won only 37.6% of the votes. This would place the assembly majority on the short list of lowest vote percentages ever turned into a majority by a “proportional” electoral system. Moreover, it was a “honeymoon” election–the assembly was elected about six months after the president.
The manufactured majority was possible due to several factors. One is the use of D’Hondt divisors, which tend to boost the largest party’s overrepresentation, especially when it has a strong lead in votes over the runner up (in this case, Citizen’s Platform, with 24.1%). It is also due to the legal thresholds: 5% for a party and 8% for a pre-electoral alliance. This resulted in substantial wasted votes, particularly with the Democratic Left running as an alliance and getting 7.6% of the vote. Had it become a “party” it would have been represented, and the PiS surely would not have won a majority of seats. Or, obviously, had the alliance won just over 0.4% more votes, it would have won seats.
However, the 37.6% itself did not come in a vacuum. As noted, this was a honeymoon election: it was six months after the election of the president to a five year term. Based on a formula (purely empirical, but based on theory) in Votes from Seats, we expect an election with 10% of the presidential inter-electoral period elapsed to result in a modest boost for the newly elected president’s party. The formula (shown in an earlier post on the French 2017 elections) suggests what we can expect for the party’s assembly votes, expressed as a ratio to the president’s own votes (in the first round if a runoff system). We call that ratio the “presidential ratio” or RP. For elapsed time of 10%, we expect RP=1.13. Given that the president, Andrzej Duda, had earned 24.8% of the vote, we’d expect the party to get 39.3%. This is barely over what it actually got (37.6%). So, yes, honeymoon elections matter. (By comparison, PiS had 29.9% in the previous assembly election, in 2011.)
It was not even a sure thing that it would be the PiS that would benefit from the honeymoon boost. First it had to win the runoff, and it did so quite narrowly (51.8% to 48.4%).
So, the current crisis could have been averted, most likely, if any one of the following had been true, thereby preventing the PiS majority government:
(1) Duda had lost the runoff;
(2) The assembly election had not been scheduled so soon after the presidential;
(3) The electoral formula was some common proportional method other than D’Hondt;
(4) There was not a high threshold for alliances, or the Left had made itself into one party (or gotten just a small increase in its votes).
So, yes, institutions do matter!
And institutions may yet matter one other way to this story, and in a way relevant to a couple of my earlier co-authored books. The president has a veto that takes 3/5 to override, and Duda has indicated opposition to his own party’s proposals on the judiciary. He may veto it. Presidents, after all, may help their parties gain power, but they are not beholden to them once in office. Under Poland’s semi-presidential system, the president and prime minister may disagree, even when from the same party. So the story may have at least one other act yet to come.
This is quite a big deal. One of the closest presidential elections anywhere, anytime will have to be re-run, due to irregularities. The Constitutional Court so ordered today.
How many other cases are there of re-votes of an entire national election in established democracies? I am unable to think of one.
(I should note that “entire” here means of the second round, thus with just the two candidates.)
Prime Minister Stephen Harper’s government has asked the Supreme Court of Canada to advise whether it can proceed unilaterally to impose term limits on senators and create a process for electing them.
The government contends that some such reforms can be imposed by the central government, citing the imposition of a retirement age for senators in 1965. However, the government’s question also considers the question of possible abolition of the senate. Here the question is whether unanimous consent of the provinces would be required, or whether the “750 formula” must be adhered to. The latter means seven provinces, accounting for half the national population.
A ruling by the Tokyo High Court may lead to reform of the electoral system for the Japanese House of Councilors, the second chamber of the Diet.
On the other hand, the Court can’t seem to make up its mind just how troublesome malapportionment is, or how much is too much. Manichi Daily News has some details.
A big, much anticipated, judicial ruling was handed down in India earlier today in the Ayodhya dispute. From the Hindustan Times:
The Allahabad High Court (HC) took the first step on Thursday towards the resolution of the 60-year-old Babri Masjid-Ram Janmabhoomi ownership dispute — by including all the warring parties in the process.
The HC gave its stamp of judicial approval to the Hindu belief that Lord Ram was indeed born there. The court also ruled by a majority verdict that the disputed 120 feet by 90 feet plot land be divided into three equal parts among three petitioners — Sunni Wakf Board, Nirmohi Akhara and the party representing Ram Lalla.
This also means that the court’s three-way split of the plot to the petitioners — even after dismissing their cases — has kept the window open for further talks. […]
The court said the area under the central dome of the three-domed structure, where Lord Ram’s idol existed [and is presently kept in a makeshift temple at the same place], belonged to Ram Lala Virajman (the Ram deity). [Ed. note: previous brackets were in original]
The case is likely to remain unsettled for years if there is an appeal (as expected) to the Supreme Court. In the meantime, there are already political reverberations in Bihar, one of India’s largest states and one where voting begins in state assembly elections later this month.
The Ayodhya issue–specifically the 1992 destruction by militant Hindu nationalists of a Mosque built in Moghul times on the site Hindus claim as holy–was one that helped propel India’s main opposition party, the BJP, to prominence. One of the BJP’s partners in the National Democratic Alliance (which governed India from the late 1990s until 2004) is the JD(U), a party in Bihar that needs Muslim votes.
The Constitutional Court of Colombia has blocked the planned referendum that would have opened the path to President Alvaro Uribe running for a third term.
This is a major benchmark (so to speak) in the maturity and institutionalization of Colombian democracy. I had long thought the third term ultimately would not happen, but my confidence in that expectation had been badly shaken as the process came this close to permitting the referendum.
The new president will be elected in May (or June, if a runoff is needed). Congress is elected in March, and there will be campaigns for various parties’ presidential candidacies, some of which will be decided in primaries concurrent with the legislative elections.
Much more at PoliBlog (Steven is leaving for some field research in Colombia rather soon; great timing, Steven!).
Greg Weeks notes that documents pertaining to the case against the Honduran President have finally been posted on line.
Supporting suppositions I have articulated here since the military coup, Greg notes that nowhere in the documents does he find any accusation regarding an intent by Zelaya to seek reelection.
And there is the laughable claim that the court had to order the military to detain Zelaya because he was a threat to flee!
Shame on the California Supreme Court for, by a 6-1 vote, caving. This ruling was entirely expected, of course. It was probably even constitutionally correct, which only reinforces the need we have been discussing for an entirely new constitution.
While the argument that the reversal of a Court-granted right contained in Proposition 8 amounted to a a “revision” rather than an amendment to the constitution always seemed a stretch, its failure to convince the Court reveals the deeper problem: under what model of “good government” can a majority of voters (which might be a quarter or so of registered voters) trump the highest court of the jurisdiction when the issue at hand involves the rights of minority groups?*
There was a time when this state had a reasonably well deserved reputation as progressive. Now it has fallen behind various New England states and Iowa in the most important civil rights issue of the 21st century so far. Indeed, although the Court claims that those marriages performed in the brief era between the first Court ruling and Prop. 8 remain legal, in fact they have been placed in an illogical second-class, and hence potentially vulnerable, position.
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* Whereas it takes a two-thirds vote of the legislature to pass a budget.
A recent “tug-of-war,” as the Hindustan Times puts it, over judicial appointments in India reveals the superiority of nomination/appointment processes that put the executive second, rather than as initiator, in the process.
For India’s Supreme Court–one of the most active constitutional review bodies among the world’s high courts1:
Appointments and promotions of judges are done by the President on the basis of recommendations made by a panel of Supreme Court judges which are forwarded by the government.
“President” here refers to the “mostly ceremonial” head of state2 and “government” refers, of course, to the federal executive cabinet, headed by the prime minister. Note that the first mover in nominations is a judicial “panel” (the details of which are not clear to me) and the executive only responds. This sort of process has long appealed to me as a preferable reform model for the US Supreme Court. And while I am not aware of a process of this sort ever having been seriously proposed for the US Supreme Court, it is not as “foreign” to American judicial practice as it may seem. In fact, several US states have moved to broadly similar reform models in recent decades.3
Recounting the “tug-of-war,” the HT says:
The trouble started when on October 18 the Supreme Court panel, responsible for judges’ appointments and promotions, recommended the three [state] chief justices for promotion to the Supreme Court.
Hindustan Times reported on October 27 that the panel had overlooked the three senior-most high court judges in the country – Justices A.P. Shah, A.K. Patnaik and V.K. Gupta – chief justices of Delhi, Madhya Pradesh and Uttarakhand high courts, respectively.
Last month, for the first time in 15 years since the present system for appointments and promotions was adopted, the Prime Minister’s Office (PMO) refused to endorse the recommendations and sent back the file to the apex court for reconsideration.
The PMO pointed out that the three judges were junior to several other judges eligible for promotion. It also drew the panel’s attention to the fact that state and gender representation had been overlooked.
Six states — Madhya Pradesh, Jammu and Kashmir, Jharkhand, Chhattisgarh, Uttarakhand and Sikkim — are not represented in the Supreme Court. Since June 2006, the court has also been without a lady judge.
However, in a snub, the SC panel sent the same names back.
Rules say the government has the option to return the recommendations once to the Supreme Court, but had to accept them the second time. [emphasis added]
And thus did an attempt by the federal executive to shape the highest court fail.
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1. Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (New Haven: Yale University Press, 1999), specifically Table 12.2 on p. 226.
2. Chosen by an electoral college made up of federal and state legislators.
3. Florida is one such case. I distinctly recall the (presumably willful) mis-characterization of the Florida Supreme Court after its ruling demanding a recount in Bush v. Gore: It was widely pointed out that the court’s majority was appointed by Democratic Governors. Technically correct, but not in the sense most American readers or listeners would understand it, for the Florida court is not appointed in an executive-initiative process like the federal one. Rather, like the Indian process, a judicial panel forwards nominees to the Governor, who may reject a proposed justice, but not initiate his preferred alternative.
It so happens that right now in Florida, there is an apparent attempt by the Governor to influence the judicial nominating process that has echoes of the Indian case.
Fruits and Votes 