Episode 19 | Autocrat Judges: Israel's Warning for America

Our hosts, law professor Ilan Wurman and Kathryn Johnson, are joined by guest co-host Joshua Kleinfeld, law professor at Scalia Law School at George Mason University, former professor at Northwestern, and a recent alum of the Trump Administration. They are also joined by Yonatan Green, author of Rogue Justice: The Rise of Judicial Supremacy in Israel. Our hosts talk about the modern phenomenon of left-wing "Juristocracy," that is, rule by judges--but only so long as they're on the political left. Our hosts explain why the Left must couch its ideas in false language like "democracy," and how they label obviously democratic reforms as "anti-democratic."

Israel is the cautionary tale for America. How did a group of Supreme Court Justices become so powerful in a system without any written constitution? First, they get rid of standing and justiciability requirements; second, they engage in "reasonableness" review of executive action; third, they invent a written constitution out of parliamentary legislation enacted by the opposition in the dead of night; and fourth, they change the rules as they go, and prevent new parliamentary legislation from undoing the old parliamentary legislation. Although Israel's case is one of judicial supremacy on steroids, there are clear warning signs for America. Oh, and the Israeli Left engages in lawfare, too--as when meritless criminal prosecutions were initiated against two members of Israel's judicial appointments committee when they spoke out against the judicial supremacist trends in their country. You won't want to miss this episode.

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Transcript

SPEAKER_04 0:00

Welcome back to Rationally Based, the podcast about law and politics on the edge. Catherine, what's on deck today?

SPEAKER_01 0:06

Well, we have a deep dive into judicial supremacy and jurisocracy with Jonathan Green, author of the book Rogue Justice. First, we'll talk about the politics of judicial reform and the massive demonstrations you saw before October 7th. Second, we'll talk about the nature of the Israeli judiciary and how it serves as a cautionary tale for America. And third, we'll talk about leftist lawfare because yes, it exists in Israel too.

SPEAKER_04 0:31

Let's dive in.

SPEAKER_01 0:50

And I'm Catherine Johnson with Center of the American Experiment.

SPEAKER_04 0:53

We have a really terrific episode for everyone today for two reasons. Reason number one, we have a really special guest, Jonathan Green, the author of Rogue Justice, The Rise of Judicial Supremacy in Israel. We are so excited for the conversation. And we have another co-host with us, my good friend Josh Kleinfeld, a professor at Scalia Law School, who just ended a stint at the Department of Education. Before that, he was a longtime professor at Northwestern. And we've been working on collaborating with Josh for a while now. Obviously, he's um been in the Department of Education, but uh he and I have been talking uh about a lot of ideas uh that have been behind this podcast for um a number of years, actually, and we've been eager to get him involved. And when I learned that uh Josh was a law clerk to Chief Justice Aron Barak of the Israeli Supreme Court, Jonathan, would you say he's the arch villain uh of the story in some respects? But anyway, we had to get Josh to parachute in at the last minute. He's also a bit under the weather, and so I'm so glad anyway that you got up this morning uh to do this uh with us. So, Yonatan, welcome.

SPEAKER_05 2:04

Thank you for having me, Ilan.

SPEAKER_02 2:05

Thank you, Catherine.

SPEAKER_04 2:07

Josh, welcome.

SPEAKER_02 2:09

Thanks, Ilan. Thanks, Catherine. I'm really happy to be here. Happy to be here with you too, Yonatan. Thanks, Joshua.

SPEAKER_04 2:15

Okay, great. Well, where should we start, Catherine?

SPEAKER_01 2:18

Um, I would like to start because I have um I think one of the main questions that a lot of our listeners are going to have before they even press play on this episode is why should I care as an American? People listen to this podcast because they are interested in America's legal system, legal issues that we're facing here in America. And they might even see the title of this episode and think, uh, why should I care? So first, and maybe we'll get into this more as we go through the hour, but give us the high level why should our listeners care about what's going on in Israel.

SPEAKER_05 2:49

Absolutely, Catherine. Thanks so much again, guys, for having me on. Um I love that question. And I I I actually uh typically start off almost uh every one of my talks with addressing that question. So I'm so glad you uh uh started off with that. Um I think there are a bunch of different reasons to care, and I think uh uh sort of let's start with the obvious one, right? The obvious one is if you care about Israel, if you care about Israel, you think it's an interesting place, you want it to flourish, you want it to succeed, you think it's you know just something that you care about, um then obviously this is a major problem, a major feature of what's happening right now in Israel, a major uh um uh controversy um in Israel, and that's just something you should care about. And you know, more specifically, as I describe in my book, um, this is an enormous problem. It's uh have having you know catastrophic effects on Israeli government, Israeli society. So, and that's obviously the kind of the easy, kind of lazy answer, right? To care about Israel, this is something you should care about. Um, but more importantly, I think why Americans should care about them, or why people abroad uh should care about it, is for sort of two distinct reasons. And I should say in in brackets, uh, you know, Professor Randy Barnett, in his endorsement for this book, and it says it on the cover, he says it's a must-read for Americans. So this isn't just my view, and I think I've I've heard this sort of echoed and reiterated from a lot of people. I think there's two reasons to care if you're not Israeli and you don't care particularly about Israel. One is that, obviously, out of sort of intellectual interest, right? If you're just interested in other jurisdictions and other countries, you want to know what's happening there, whether it's from a perspective of politics, of law, um, of government, of legal theory, of anything else, uh, you know, if you're in if you're a person that is interested in other countries and other jurisdictions, then Israel is an extremely interesting case study to explore and examine. Um, but perhaps most importantly, and Elon mentioned this earlier when he said we use the term cautionary tale, um, Israel is, in many senses, a warning and it is a map, and it is uh you know almost a sort of prophetic view of what happens when you have a legal system and a judiciary that goes completely off the rails. When you have a Supreme Court and a group of judges who completely abandon the law in any sense as we know it, who completely abandon democracy in any sense as we know it, um, Israel is a result. And what we've seen internally in Israel, both in terms of the judiciary and its decisions, and also in terms of the social and political strife and upheaval that come about as a result of that, um, Israel is absolutely a cautionary tale that people all over the world should look at very hard, you know, take a good long uh uh strong hard look at it and learn from it.

SPEAKER_02 5:20

Could I add something to that? Um I agree with everything you said, Jonathan, but I I teach comparative constitutional law and I work for Ron Barack and um have been living with these issues for a while. And my base lawyer friends tease me, right? Because they'll be like, Josh, are you you know studying the constitution of Armenia again or or Brazil or something? Like, why are you doing this with your time? Um and I have to justify myself. So here's what I say. Um what's happened in Israel is happening everywhere around the world. Um, the explosion of judicial review, the sort of unconstrained uh left-leaning form of power that judicial review uh allows, um, is happening in Brazil. It's happening in Colombia, it's happening in India, it's happening in Pakistan, it's happening in South Africa, it's happening in, by one count, 181 out of 195 countries. And um with only one exception, in my opinion, I mean people can categorize different ways, but in my opinion, there's only one exception to the rule that it is always left-wing power. Judicial power is left-wing power everywhere except the United States on the Supreme Court right now. Why those caveats? Because the United States judicial review and judicial power was left-wing power until the Rehnquist Court, which is to say until the 1990s. And arguably right now, it's still highly left-wing, highly discretionary power in America's federal district courts and in many of their circuit courts. And I know I had the sensation when I was in the Department of Education for President Trump. Um, I always had this uh this feeling that I was fighting the ghost of Biden, right? And because we would do something which was clearly lawful, and we would encounter a phalanx of district court judges who are just using, in many cases, unjustified power on the other side. And it was the ghost of the Biden administration opposing us. Um and so my my feeling about this is we've got a problem in the United States, we've got a problem globally, and Israel is the leading example. So if you want to see the big picture, and if you want to see our picture, study what happened in Israel and you'll you'll get that big picture. My uh my takeaway from it is uh, you know, it sounds almost quaint as a conservative to talk about judicial activism, but judicial activism is the problem everywhere and here and always. And conservatives need to fight judicial activism today, just as they did in the 1980s.

SPEAKER_04 7:57

That is a based take, and everyone understands now why we were so eager to get Josh uh on the show. Okay, but wait. So um the picture that Josh just painted makes Israel sound, um, Jonathan, kind of like the rest of judicial review in the Western world. But it's actually worse from reading your book. And so let me uh I'm I'm gonna set this up briefly and then uh you can take this away to give the bigger picture. I want to so I read Jonathan's book. I I recommend it. Um and I'm sort of embarrassed that I didn't bring it out with me to show it on the camera. But uh it's again rogue justice, it's 600 some pages, but there's a reason it's it's it's that long, okay. Uh and it's the best stuff is at the very end, also, uh because there's a whole trajectory to the top. But what kind of constitutional system is Israel? So if the listeners of the podcast uh listened to my lecture at Stanford uh well last week, right, which was on my book uh coming out on America's constitution, I sort of explained uh the historic origins of the American Revolution and the American There it is, and Josh just showed on his phone uh the the picture. Thank you. I've been reading it too.

SPEAKER_05 9:04

The coverage I now regret it. I have a copy, I have a copy just around the corner for me, but I won't get up to get it. So we're we're we're fine.

SPEAKER_04 9:10

Uh by the way, I should have introduced Jonathan as my doppelganger. Uh now that looking at his outfit, we are basically dressed uh identically. Where are your glasses? Uh no, okay. Anyway, at least that's uh one distinguishing feature. But but anyway, so the English constitution of the 1600s was this unwritten constitution of customary principles. But there was no judicial review, right? Those customary principles could only be enforced by sort of the people. And if you know King Charles I violates them, they revolted and then they executed him. You know, they deposed James II. This constitution gets replaced with a different kind of unwritten constitution, the unwritten constitution of British parliamentary supremacy and sovereignty, which again had no judicial review because there's no written constitution. So it's up to parliament. But the American Revolution occurred because of the clash between the two, right? What happens when the unwritten constitution of parliamentary uh supremacy clashes with the fundamental rights that you believe are rooted in immemorial custom, like no taxation without representation. You get the American Revolution. So the Americans wrote down a constitution, right? They took those principles, they wrote them down, and that's what allowed them to be judicially enforceable, right? And against the uh against the legislature. But Israel is different entirely. This is sort of the arc, I think, of where we're going today. Right. Israel went from the British parliamentary sovereignty system, right? And we'll talk about this. It sort of invented a written constitution out of some laws in the 1990s, but it went out of a full war in uh the 2010s and in 2024 it culminated in this reasonable decision, which we'll talk about, where the Israeli Supreme Court now judicially enforces against the legislature an unwritten constitution that it itself invented. So Jonathan, my question for you is uh Josh has explained how this is of a piece with other uh judicial review, the advent of uh the rise of judicial review and judicial supremacy in other uh systems. But is any other system as bad as this where there's judicial review but no written constitution? And those those unwritten limits were invented by the courts and are enforced against the courts. Is Israel the worst example of this phenomenon that Josh explained? So that's a trajectory. Did I get your book right? Basically, is what I'm asking. And then we'll break it down sort of piece by piece.

SPEAKER_05 11:36

Absolutely, Lon. And I think that's absolutely correct. And also Joshua's um characterization is correct. And I'll say that absolutely this is a global problem. And every single, you know, there have been books that have written on this issue, uh uh the global expansion of judicial power, juristocracy, uh, by the late um uh uh Ron Herschel, who actually tragically passed away very, very recently. Uh he was the one that coined the term uh juristocracy, a book that he wrote in 2007. Of course, there's uh Justice Bork's book on uh uh coercing virtue, the worldwide rule of judges. Um and in all of these uh books, right, Israel is a leading example, right? And this is already since the uh uh uh 90s uh uh and 2010s, etc., uh Israel was already a leading example in this global phenomenon. Um I would absolutely argue that Israel is sort of not just a pioneer, but uh uh sort of the worst transgressor and and and a sort of um uh I I hate to say a leader, but really sort of the uh um uh the the the ringleader, um, if you will, of this of this global phenomenon. And this is really important, Elan. You've you you've kind of uh uh alluded to this. I think it's very easy two things. One, it's very easy to sort of get lost in the weeds and be confused with all the different details and overload of information, et cetera. Um uh uh and and therefore it's so important to have a really clear explanation. That's what I try and do in the book. Um but second of all, only when you get the details, only when you really do a deep dive and read what the court did, and read the background, and read the laws, and read, et cetera, et cetera, only then can you really get an appreciation of how different this is from other instances and other other examples, how egregiously radical and far out uh what the Israeli Supreme Court has done. So let's take this one example of uh, as you say, you know, judicial review with the lack of a constitution. And you know, very, very briefly, um, you know, people like getting, you know, uh this gets very complicated, people uh uh you know sort of get lost in the details of this, but actually the Israeli story is extremely simple. Israel, as you describe, was a system of parliamentary supremacy from 1948 when the state was founded, until 1995. Israel had no constitution, and judges could not strike down laws. This is very straightforward, very simple. Now we should already say, of course, there are other countries, you know, this might be a little bit foreign to an American audience, there are, of course, many other legitimate, valid Western democracies uh that are a system of uh parliamentary supremacy. And these include sort of dictatorial backwaters like the United Kingdom and uh New Zealand, uh, who don't have a written constitution. But it includes, of course, also other dictatorial backwaters like the Netherlands or Switzerland, uh, who do have a written constitution, but who don't have judicial review of primary legislation because the constitution rules that out. It explicitly says uh the courts can't strike down uh uh primary laws. So this is sort of a valid system. What the Israeli Supreme Court did in 1995 is that it established Israel as a constitutional democracy without a democratic constitution. And it embarked on this experiment of coercive constitutionalism. The court came along and said, we're gonna grab two laws that were enacted in 1992, and we can go into the details a little bit of how that of how that came about and how completely preposterous this claim is, this argument is. But it grabs two laws from 1992 and says, actually, Israel, congratulations, you just received the constitution. You never knew about it, you never heard about it, you never deliberated about it, you never voted on it, but now you have a constitution. We can put in parentheses, even the court doesn't know what that constitution consists of, right? If you ask every single Supreme Court justice to send you a PDF of the Israeli Constitution, uh uh they you would have no two identical PDFs because nobody agrees exactly what you know where that begins and ends. But the Israeli Supreme Court says, Congratulations, Israel, you have a new constitution. Uh Justice Saharan Barak uh uh characterized that constitution as coming into being hidden from view. These are his exact words, uh Behi Chabe. Can you can you imagine the oxymoronic idea of a constitution uh uh uh being created hidden from view? And then the court proceeds, based on this ludicrous idea, to strike down primary primary legislation, to perform judicial review of laws. And it has done so to devastating effect. The court has struck down dozens of laws uh uh since uh that ruling in 1995, uh um uh relating to all matters of Israeli law, government, policy, you know, the most important, consequential, controversial is you issues that go to the heart of public life in Israel, the court has struck down laws relating to those. So, yes, I think quite it's quite easy to argue, even in the constitutional space, um, that Israel is really the worst and most egregious transgressor in this context within sort of other Western uh democracies.

SPEAKER_02 16:08

Can I ask two quick um kind of setting the stage questions that I think will will help see the egregious character of what Israel has has uh has done here? Um and these are as much for uh Ilan, I guess, as for Jonathan. What are courts doing when they're not doing big constitutional cases? I mean, I think for many of our listeners and viewers, um when do we hear about the Supreme Court? There's some huge thing, um, birthright citizenship or whatever, that's you know, it's a huge case, it's constitutional, and it comes before the Supreme Court, and they give the final decision about our great political issues, the sort of mega political issues of our time. But presumably there were courts long before there were constitutions on the face of the earth. The first constitution was America's the first written constitution, and that was 1780 uh eighty-eight, uh, 1789, and so what was before that? Um, there are courts without constitutions. So that's that's question number one, is just to get clear on this sort of more modest conception of what a court does when it's not deciding mega political issues in the form of constitutional review. Question number two um is uh what makes any constitution legitimate? Right? Why why do we allow judicial review on the base of a constitution? Why is it important that a constitution not be hidden from view in uh the translated version of Barack's phrase? So I just want to throw those out there and get your thoughts about them.

SPEAKER_05 17:42

Ilan, if it's okay, I'll I'll take a first uh um uh stab on that.

SPEAKER_04 17:49

Go for it. You're you're the guest of honor.

SPEAKER_05 17:52

Um, so so um first of all, I think there's a very strong case to be made if we're talking about uh I guess sort of you know why constitutions are are um uh legitimate or why they you know properly legitimate judicial review, is the sense that there is a consensus, and you know, to sort of you know state the obvious sort of you know for our liters, there's a consens, there's a consensus about the framework of this idea. And this is, you know, and and you know, we can we can relitigate this if we want to, but there's a consensus of a basic idea that actually a constitution is not such a novel idea. It may obviously wasn't uh 1780, 1787, 1788. Um but the basic concept is you simply have a higher tier of law. At the end of the day, it's just another legal instrument, right, which perhaps uh uh uh uh derives its power from the demos, from the public in a more direct way, you know, more uh you know, maybe reflecting a larger consensus, et cetera. You know, you have to have special procedures to enact it, et cetera. But the basic premise of constitutionalism is that it's simply a higher tier of law, which therefore constrains the other institutions of government, including the institutions that make laws themselves. And in a way, the whole idea of judicial review is an extremely straightforward concept, right, of enforcing law. It's just saying, okay, we have different tiers of law. Uh tier one used to be primary legislation of the legislature, but since the idea of the written constitution, we have a tier of written law, we have a tier of law as we know it above that, and that is simply being enforced by judges. This is very a very straightforward, uncomplicated premise in many ways. Of course, there's a lot of moving parts of that. And this is what's so novel about what the Israeli Supreme Court did, because it completely did away with that very idea, right, of having this framework, meaning it pretends to have that framework. But what it does is it it it uh uh the Israeli Supreme Court takes this idea of the written constitution with its writtenness, with its special uh procedures uh uh enacting it, with its reflection of uh uh you know public consensus and public sentiment, et cetera, uh, and simply um uh uh uh enforces the idea of a constitution without a constitution. And in that, I think Israel um is is singular. So, whatever are the justifications for judicial review and constitutionalism, uh what uh the consensus that exists for other countries and other jurisdictions certainly doesn't apply there. More importantly, I wanted to really briefly touch on what you were saying earlier about you know what else do courts do. That's such an important point. I appreciate you saying that. As Ilan knows, the first half of my book, even more than the first half, doesn't talk about the constitutional issues at all. And this is a really important point that I try and drive home. You know, people sort of like focusing on judicial review, on the constitutional stuff, on striking down laws, on the major policy issues, et cetera. But that's not necessarily the focus of what has happened in Israel over uh um the last 40 years with judicial supremacy. Um the Israeli Supreme Court has cr turned itself into an institution that intervenes in every single conceivable part of public life, of government action, of private life, of communal life. Uh uh and there are a myriad of examples of this, and we can go into a little bit more, but through through novel ideas of statutory interpretation, through abolishing the basic uh thresholds for litigation like standing and justice stability, through novel doctrines such as reasonableness review of executive action, the court has simply made itself the uh uh meddler and the arbiter of every single uh uh um uh conceivable government action. And this is why I show in the book. In 1995, there was a um uh a poll, there was a survey amongst constitutional scholars and law professors, um, I think all around the world. This was a survey done by two law professors at UC Berkeley. And they uh they were asked to rank different countries according to their degree of judicial activism. And of course, who came out first? Who was number one? Israel. And who was number two? And who was no exactly, and who was number two? The United States. Um but importantly, this survey where Israel came out number one on judicial activism was before the constitutional revolution. Was before the Israeli Supreme Court invented the Israeli constitution and started striking down laws. This crazy idea started striking down laws without the benefit of a written constitution. So I think it's such an important point, Joshua, about what courts are doing and not letting uh the big constitutional issues be the only thing that steals the limelight because the sort of day-to-day work of courts are so important. And I'll say I'll finish this answer with one last really, I guess, important point for our American viewers, for Israelis as well. Courts and judicial intervention and government action are a critical feature of liberal democratic government. We know this. We agree with this. I think, you know, I'm a constitutionalist. Um I think you you you likely are too uh uh as well. Um courts have an imperative role to play in Elon's not sure. If you read if you read his book, you'll know why. Um courts have an uh an imperative, pivotal, crucial role to play in holding government accountable, in making sure that especially executive government is acting uh according to law, in safeguarding and protecting individual rights uh and liberties, um, uh etc. And in many senses, in Israel, that is a function that the court performed very well uh up until uh uh the 80s and 90s, meaning for the first half of Israel's existence, the Israeli Supreme Court was an extremely robust and you might even call it an activist course in holding government accountable, in stopping government uh uh uh abuses, in protecting individual rights and liberties, sometimes even unenumerated rights and liberties. Um, and yet it had a it had a restrained understanding of its role when it comes to parliamentary supremacy. It had a restrained understanding of its role when it comes to statutory interpretation and respecting just the justiciability and understanding that certain issues were either outside the court's purview, or that it had to faithfully apply the will of the uh uh of the electorate through the uh uh uh through legislation, uh, or that it simply couldn't strike down primary legislation. Um and that was a major shift that the court underwent in the 80s and 90s under uh Justice Sawan Bauak.

SPEAKER_04 24:02

Okay, I've got um, and Catherine, I know. Sorry, please interrupt me if um you wanted to jump in there, but I we have to talk about the story of the 1995. Okay, I I I want to talk about both review, administrative law, right, review of executive actions, this reasonableness thing you mentioned. But I think we need to harp on this maneuver in 1995 because a big reason we have this podcast, right, Catherine, is that you know the it's the left that claims the right is anti-democratic. Everything the right does is anti-democratic. When the judicial reform proposals in Israel, which were clearly pro-democracy, right? Let's give power back to elected uh majorities, the left was on the streets and you had all the usual suspects saying this is anti-democratic. But it's actually the left that's anti-democratic. And the way that they always do this is it's fly by night. It's pulling the wool over the people's eyes so they don't know what's going on. So I do want to talk about the emergence of the 1992 basic laws and how those became the constitution. Because if I read your book correctly, and I have pretty good reading comprehension, if I may say so myself. Basically, in 1992, uh Israel's parliament, the Knesset, which remember is supreme and could pass whatever laws it wants. It could pass basic laws like the Judiciary Act of 1789. It's just on par with uh ordinary laws, but it's about the fundamental sort of government structure. During a caretaker government, so the prior government had collapsed. New elections were imminent. The opposition party in the dead of night enacted the human rights law, a basic law involving human rights, for for which was it like 30 MPs voted out of 120, and only a quarter was there, or maybe that was the freedom of occupation law. But the point is it was equally astonishingly small numbers. It was like 4 a.m. in the morning where they explicitly in the debate said, just to be quite clear, we're not even authorizing judicial review here, right? And the proponent said, of course we're not authorizing judicial review. This is just a statement of our principles that we want to abide by. And this is how they got a few of the non-opposition MPs to vote, but it was overwhelmingly voted by opposition, members of our parliament and members of the Knesset MKs. Only like a quarter was there. So it was barely even a quorum. It was in the dead of night. No one thought that they were creating this constitution. And this decision from the Israeli Supreme Court interpreting what the Knesset had done, okay, came three days or four days after Yitzhak Rabin, the Prime Minister of Israel, was assassinated? Okay, the people were not paying attention to what the Supreme Court was doing. And is there anything more insanely, ridiculously, ludicrously illegitimate more than the way the left and just Chief Justice Arun Barak seized power on behalf of the left in Israel through these shenanigans in 1992 through 1995? If this had been open, Jonathan, if people had been open about what was going on, would this have ever uh, you know, would they have ever fooled the Israeli people this way?

SPEAKER_05 27:12

Um absolutely not. And Elon, you're you're right. I sometimes call this, this is sort of the mother of all judicial activisms, right? Sort of the what is the most extreme, profound version of a judicial usurpation of power that one could possibly imagine? Well, inventing a constitution where one does not exist surely has to be, you know, up there among the top conceivable types of judicial activism and judicial power. Uh and of course, this was very much in service of the left following both the legislative action of the left. Um and I show in the book that, you know, quite a few of the people who were involved with that legislation were in many ways quite aware of what they were doing in the sense that they were very deliberately trying to enact a law which was deceiving uh other legislators, which was deceiving the public. Uh, there was kind of a sort of uh um uh uh unconceded or or unacknowledged, unu uh unverbal understanding uh amongst some of the legislators. We know this in retrospect because they kind of boasted about it, uh, that the court could potentially interpret these laws as granting it some kind of uh power. But this was, of course, obviously denied in real time, and the sponsors of the laws assured the legislators and assured the public that they weren't doing anything uh of the sort, that this was a sort of uh a statement of principles, that this was a human rights law uh which would uh perhaps bind uh the executive to some extent, but certainly not uh the legislature. And I think you've you've mentioned sort of all the reasons why the very idea that these laws could serve as some sort of basis for a constitution is so preposterous. So one part of the I'll add to that, and you mentioned, of course, you know, less than, you know, uh a quarter of the legislators voted in favor of it. Less than half of the legislature even vote, even participated in the vote were even in the building, right? So less than half of the legislators were even present or right. And as you said, this was after, this was in a caretaker government after elections were uh um uh were called. Um I'll add two sort of elements. One is that, of course, needless to say, nothing in the text of these two laws in 1992 uh presents these laws as somehow uh you know worthy of being a constitutional instrument, meaning a typical element of written constitutions is what we call a supremacy clause. And that's what, of course, uh Justice Marshall relied on uh to some extent, of course, in Marvier versus Madison. Uh the I the explicit statement that a law is on another tier, that it is the supreme law of the land, that a constitution, you know, sort of rests above the other laws uh of the jurisdiction, nothing like that remotely exists in these two basic laws of 1992. But what I'll emphasize there is another element is that the consensus throughout the Israeli legal system, through within the Supreme Court itself, uh throughout the political establishment, throughout the public, is that this type of law called the basic law, right? This this category of laws was just an ordinary type of law. The only thing that made it special is that it had the title basic law, and that it was, and that as you described the Landa, it sort of regarded important institutional aspects of Israel's system of government, et cetera. And like you use, I think a good comparison is the Judiciary Act. Um so it was meaning, and this is an important part of all of this because the premise of the entire Israeli constitutional order was that basic laws are just ordinary laws. And that's another element of what was so radical about the court came and did in 1995. And I write in the book, you know, the court looked at these two laws in 1995 that were enacted in 1982, and it said, if it looks like a duck, it walks like a duck, and it quacks like a duck, then it has to be a Tyrannosaurus Rex. Uh and that's what and that's what the court does. It just looks at this thing, which is so plainly, right, the evidence before your eyes is so obviously factually true that this is not remotely a constitution or anything remotely like it. And yet the court just says, we just have to now accept that it's uh a constitution. I think pulling the wool over the eyes and a degree of deception is integral to what the court uh uh did here. Um uh, you know, there there are various essays and articles where you know people write about uh uh Haram Bag's strategic court, and strategic is sort of almost a euphemism for being sort of uh um uh misleading and dishonest. So the court, you know, and there were many methods in which the court uh uh did this. One was that, you know, the 1995 ruling itself uh didn't strike down any laws. It sort of said, we're actually not gonna strike down the law being challenged, but we're gonna recognize that there's a constitution. And in this sense, the court's decision was unanimous. There were seven justices that participated in the decision. It was unanimous in the sense that everyone dismissed the petitions because they weren't striking down any laws, and there were no operative consequences. So, you know, the public, and as you said, of course, this was released days after Its Kak Rebin was assassinated. Um so this, you know, the the the court consistently, at least in the past, under Alan Balak, had managed to sort of evade the ire of the political establishment and of the electorate because they they they were very strategic in their in the in the pace and the development of these ideas. Uh but this is this is an amazing example of the way in which courts can uh unilaterally, single-handedly, methodically advance a you know clear left-wing policy agenda uh uh through sort of uh and most importantly, I guess this will refer to what you said, most importantly, in the name of democracy. In the name of democracy. And this is a key point. I go into this in the book. I'll just I'll just say one thing about the word substantive. Substantive is a wonderful term of art that the uh Israeli Supreme Court uses all the time. Uh and if you you know for for rational, uh for you know, I a base take on this is that anytime the Israeli court uses the word ras uh uh substantive, it just means the opposite. So substantive democracy is Platonian guardianship in which judges can tell the electorate and the representatives what the correct policy and have and having final say on all outcomes and all policy. That's substantive democracy, right? A substantive constitution is the lack of a constitution, right? A substantive constitution is when you don't have a written constitution or anything like it, but we're gonna pretend that we have one anyway. Uh and this is a lot of what the court did in persuading parts of the Israeli public, and this is a lot of what sort of Israeli legal academia did in playing along with this idea. And unfortunately, law students, right, or political science students in you know their first year in Israeli law school, they'll learn that this is normal. They will be told that yes, Israel has a system of substantive democracy in which an unelected court uh uh uh can tell everybody what to do without the you know remotest basis of a constitution.

SPEAKER_04 33:43

Catherine, did you learn that? Did you Catherine, did you learn that in Apush?

SPEAKER_01 33:47

The courts are no. I learned a lot of wacky stuff in Apush, but not quite that. I was gonna, I okay, can I just can I get an example? Because my question is, how does one have no constitution yet use the constitution as the basis of all your decisions? Like, am I the only one who's a little like logistically so do you have an example, Jonathan, of a time that this was used and it's just like crazy because I can't even comprehend quite what do you put on the paper?

SPEAKER_05 34:15

Absolutely. It's so many examples. I I know Joshua wanted to say something, so let me let me I want to give you an example. I want to hear what Joshua has to say, and then I'll jump back to your example, Catherine.

SPEAKER_02 34:23

Well, I was just gonna point out that um um this is part of your story, uh, right? That that you went to law school and you you didn't kind of graduate from law school, this sort of flamethrower that you are now. You were socialized into the conventional, respectable law student perspective um of the typical Israeli lawyer. And and then you sort of read a book and it was uh a an awakening moment. You were, you know, as Kant said of Hume, you were shaken out of your dogmatic slumber. And um I think that's a really important story because I think the way in which I'm a law professor, uh Elon is a law professor, the way in which law professors, particularly when they eliminate dissent from the faculty ranks, when they make sure that the only faculty members are in line with the basic system, um you create a culture in which there is sort of accepted, respectable opinion among law students in law schools. You exclude the other side from the ranks of the faculty and thereby from the ranks of the students, more or less. So there's always a few exceptions, and um create a conventional wisdom where the most outrageous things can seem true. For example, that substantive democracy, which empowers an unelected panel of guardians who decide all the most important political issues of the day without any sort of uh majoritarian warrant. That's real democracy. That is to say, it is substantive democracy. And everyone just sings from that same hymnal until, like Goebbels, they repeat it so many times it comes to seem as true. That has everything to do with how a community is socialized, has everything to do with how law students are socialized by their professors. So I wondered if you could just uh talk a little bit about your story as a law student who is shaken out of his own slumber.

SPEAKER_04 36:28

And Jonathan, I'm going to add a third question, okay, which relates to Catholic which relates to Catherine's question. So I see you've got a pen. Okay. So I just I also want, you know, for our for our listeners, like sort of where this is going, because I also think this might answer Catherine's question a little bit. But one of the geniuses of the 1992, of using the 1992 basic laws, of course, like what about all the other basic laws? Like, why didn't our own Barack seize on those basic laws? Well, because the 1992 basic laws contained this beautiful nugget called dignity and proportionality. And so now there's this human right to dignity that's judicially enforceable. And you can only infringe on public dignity if it's proportional to sort of the interests that are being advanced. If this sounds like the kind of things that a legislature should weigh, you're probably right. But now courts get to say, well, does this is this is the benefit here proportional to the harm, to this amorphous thing called human dignity? So that might be part of the uh you know an answer. I like how to Catherine's question, how it gives an opportunity for courts to just make stuff up. Because if your constitution is dignity plus proportionality, of course you can make stuff up without a constitution. But then Catherine's question also goes to the next step, which is even when the Supreme Court, when the Knesset, the parliament, tries to rein in now dignity, all these things, undo the 1992 basic laws, but now in the last tenure, they they have said no, we can't do that. And so that's a separate part of Catherine's question, right? Which is like both of those things, right? Within the 1992 basic laws, how did they become so crazy activist? And then now you can't even undo the 1992 basic laws. So they're extra, extra activists now, right? Um so okay, you've got a series of questions on the table. We call this the rule of three. You get to now choose what you want to say.

SPEAKER_05 38:18

Okay, wonderful. Well, I think our audience has been so patient, and I've been going on and on with these very high generalizations. Let me dive into some examples for our audience to sink their teeth into. And the only, and then I'll answer the other questions, but the only uh a preface I'll say to that is that deliberately in the book, I go through every single law that the court has struck down. Because I want the readers to have this very specific understanding that I want them to be able to go to uh uh uh through one by one. So I I I uh deliver on that and I provide that in the book. But let me say, let me give you some examples, Catherine. So as Ilan said, right, these are two laws passed in 1992 with a set of human rights. These are essentially a sort of bill of rights. One law is about freedom of occupation, and you can sort of understand what that is, and the other law has a series of rights, uh um, uh uh life, liberty, property, uh, you know, uh uh physical uh uh you know, your your sort of physical well-being, um uh uh and and of course, critically, uh I should say privacy, dignity. And dignity is of course a b a big one, human dignity. And we can get into that, of course. Israel is not the first or only country to have a human right to dignity, and they're you know, in many ways, one could argue that dignity is a sort of valid human right. This is somewhat common, Joshua could tell us for somewhat common in sort of European constitutional uh arrangements with a right to uh dignity. One could envision a very specific, concrete legal meaning to a right to dignity, right? So, you know, public whippings might be uh uh illegal or you know, certain certain things under that uh uh category. Um and and let's recall before we listen here, isn't it? Maybe again.

SPEAKER_04 39:59

This is why you have to also watch us on YouTube, because you'll get our live reactions. They're just like a little public pillory at least, you know, maybe not the whipping we've got like some some public shame. Anyway, go ahead. Go ahead.

SPEAKER_05 40:11

There's no question that dignity is a profoundly open and porous term, and I'll give some examples right now. Okay, so so in the Israel has a massive prison overcrowding problem. Okay, massive prison overcrowding problem. Not actually, not quite like in the United States in the sense that there aren't that many incarcerated people. It's not as if that's such a large proportion, you know, such a large amount of people are incarcerated, it just doesn't have enough prisons and prison space. And there's a whole bunch of different rulings and and and you know legal controversies around this. I'll say as a side point, of course, the Supreme Court ruled as a matter of human dignity that the allotted cell space for each inmate is insufficient. So as a matter of human dignity, right? Yes.

SPEAKER_04 40:52

You're missing a piece of your story in your book, which is the Supreme Court originally contributed to the overcrowded.

SPEAKER_05 40:59

Wait, wait, wait, wait, wait, we're getting there. We're getting there, I'm getting there. There's a whole there's a whole, yeah. And I again I don't want to go too much into the weeds, but yes, absolutely. This is all a preface to the right. So the the the Supreme Court has been all over this issue and has regularly contributed to this problem. But here's the big one. The Isra, and this is what Ilan is is is alluding to. Uh the Israeli legislature passed a law enabling and allowing for the uh administration of private prisons, okay? Private corporations licensed by the government to establish and run prisons. Now, you might object to this, you might like the idea, there are, you know, uh opinions vary and differ. Suffice to say that there are democracies all over the West, including the US, Canada, Australia, England, who have privately administered prisons. Like this is hardly like a novel, you know, patently undemocratic idea. The court struck down this law, the Supreme Court uh struck down this law as a violation of the dignity of inmates, okay, and and the prison inmates. And the court said that the right to dignity of an inmate includes the right to have your incarceration administered by the state and not by a for-profit corporation. And this is a really good example of how the court takes this idea of dignity, which is completely porous, which is uh uh um almost devoid of any substance uh or meaning, and simply imposes clear policy preferences on society, on the legislature. And of course, the consequences of this have been catastrophic, and I uh uh in in in that particular context of uh prison space, because to this day, the government has not yet managed to address that problem sufficiently because this was the solution as far as the government uh uh uh was concerned. Now I'll say as a side point, um dignity has been used across the board for various other laws and for various other issues which the court has struck down. One of the biggest ones that I'll give the examples is immigration laws. So the court has, sorry, the Israeli Knesset, the Israeli legislature has enacted several laws or several attempts to address illegal immigration into Israel. A large part of this has to do with uh uh um economic migration from continental Africa. A lot of people don't know this, but Israel is the only developed country in the world with a land border with continental Africa. And think about what that means for a second. Think about the challenges facing Italy, France, England, and the boats coming across uh uh the Mediterranean uh uh sea in order to get to Western countries. Well, there's only one economically developed country in the world with a land border with continental Africa, and that's Israel. And it used to be a very porous border, now it's a little bit better. The court has struck down five separate laws, five consecutive laws about uh uh uh immigration policy and trying to curb or stem the tide of illegal uh economic migrants into Israel. Um most of these, at least three, if I'm not mistaken, were based on human dignity, right? And and the right to human dignity of these economic migrants. But let me get even more, let me let me get a little bit more outrageous. Uh And here we're going down a tiny rabbit hole, but trust me, it's it's worth your while. The Israeli Supreme Court started saying at some point, well, the 1992 laws have this set of rights, which we're familiar with, and some of them are open-ended and you know uh almost devoid of meeting and infused with any meeting of the court wants to, like the right to dignity. However, these laws also include unenumerated light rights, unenumerated rights, right, which are not explicitly part of the text of these laws. The big one being a right to equality. And there's so much to say about this because there's this misconception or there's this really a lie, a falsehood, which is uh propagated by the Israeli Supreme Court, that equality, a right to equality is a sort of standard idea which you find in other constitutions, and actually we find that virtually no constitution in the world has a blanket right to equality per se as equality. There is there are rights against discrimination and protections against discrimination. There are rights like equal protection of the laws with it with specific meanings and specific right uh um uh uh uh implications. But a right to equality per se is obviously uh virtually non-existent in other countries in the world and also um uh virtually meaningless uh for a variety of reasons as uh um as we know. So the Israeli Supreme Court Court comes along and says, actually, the right to dignity includes an unenumerated right to equality. Now, aside this being preposterous on its head, I actually want to blow your mind a little bit more. And I hope you're sitting down for this. The right to equality was deliberately excluded from the 1992 laws. And this is one of the most insane and egregious things the Israeli Supreme Court has ever done. The right, and even though it's not the top of the list, um the right to equality was deliberately excluded from the 1992 laws. It was included in earlier drafts and it was then removed. It was part of a compromise which allowed for the laws to be enacted. If a right to equality had had been included in those laws, they would never have been passed. They would never have been enacted. And this is uncontroversial. This is undisputed. This is agreed by everybody who were involved with the legislation. This is you know a public historical record. So what one of the justices called this, you know, rights that were uh let out the front door, the court was bringing in through the window. Um so you have a right to equality, which was in the most explicit, deliberate terms not included in this piece of legislation. The court then decides to read it in to the right to dignity. And based on this unenumerated right, the court has struck down, struck down some of the most important contentious, controversial laws, or I should say, laws regarding the most important contentious, controversial issues in Israeli society, the big one being the ultra-orthodox draft for military service. And we don't have to get into all this, but basically, ultra-orthodox men in Israel have uh an exemption from military service. It's a highly controversial issue. The court has been meddling with these issues for decades. In my opinion, if the court had not been meddling with it, it would have long been resolved, but that's a separate issue. In 2012 and in 2017, the court struck down primary legislation as unconstitutional because it violated the unenumerated right to equality, which exists in dignity in the non-existent constitution, which the court invented. And based on this, the court is striking down laws which has had a radical destabilizing effect on Israeli government, on Israeli social cohesion, and many other uh related issues. So I hope that answers your question a little bit in terms of particular examples. And again, I I I mean the devil really isn't the details, and you really have to go into the book to understand this. But I think the details matter uh so much so it's hard to talk about generalizations. Just to just to um uh Joshua had a question. Yeah. Quickly, quickly relate to some of Joshua's questions. No, uh absolutely, and you know, uh Joshua, I think this is so important. You called, I liked your um uh uh your reference of what I think you said what Kant said of Hume, uh of awakening out of his out of his slumber. Of course, for us for us based folks, this is called the red pill moment. The red pill moment.

SPEAKER_02 48:11

The original inventor of the red pill moment saying of David Hume, he shook me out of my dogmatic slumber. And the dogmatic slumber was the dogmatic slumber of educated opinion in his time.

SPEAKER_05 48:24

Right. Educated conventional opinion, you know, very much gatekeep and controlled by you know the specific elite. So this is very much a feature of how the Israeli system works. I'm just gonna say in parentheses, I'm a huge fan of the Matrix of the Matrix movie. And one of my biggest regrets is that I didn't manage to figure in any matrix quotes into the book, even though I have a whole bunch of different movie quotes from The Godfather, Star Wars, Monty Python, uh, and others.

SPEAKER_02 48:47

I like to sort of better, right?

SPEAKER_05 48:51

You gotta keep it playful, you gotta keep it entertaining. So I do. Um actually my biggest regret is that I should have put in uh you know, Morpheus says to Neo, no one knows what the matrix is, you have to see it for yourself. And this is my point about like, there you go, right, Elon? That should have been there.

SPEAKER_04 49:07

No one knows what the constitution is.

SPEAKER_05 49:08

You just exactly um but but but red pill is another one. Um so yeah, it's not just Joshua, absolutely the gatekeeping of legal academia, of legal education in Israel. And I and this is a side point, but Ahawan Barak himself personally and many of his allies on the court uh were and to some extent remain the main gatekeepers of Israeli legal academia. And you really virtually cannot become a law professor in Israel if you are an overt uh uh conservative. Uh uh absolutely that's the case in public law, uh, you know, constitutional law, administrative law, right? If you're in sort of private law, corporate law, you know, torts, civil law, contracts, et cetera, then you can just kind of keep your conservative views on a lower profile. Uh but it's virtually impossible to become a law professor in Israel if you hold those kind of views, if you challenge uh the court's views in these issues. And I'll give just um one quick example and I'll talk about a broader societal issue. This 1995 ruling, right, the uh of the constitutional revolution, it has dissenting opinions. And one of those dissenting opinions is by Justice Michelle Keshin, who rips apart the court's view on this issue. And this guy's an activist. He is no judicial restraint guy, he's no conservative, um, and yet he rips the court's opinion to shreds. But more importantly, more importantly, and this is I think you'll find interesting, right after the 1995 ruling by the Israeli Supreme Court, there is a speech and a legal uh journal article that is published against the ruling. And that is speech and article is given by no other than the retired Chief Justice of the Israeli Supreme Court, Moshe Landau. And this is one of the most respected jurists in Israel's history. Again, a retired Supreme Court Chief Justice, okay? And he comes out guns blazing against this ruling. He just rips it to shreds, and he has a quote which is which is featured at the beginning of the of my book, where he says, you know, beyond my all my other objections to this, by what right? By what right does the court usurp for itself, you know, the power of judicial review without a constitution, et cetera, et cetera? I am not aware of almost any law student in Israel who is given this as reading material when studying the constitutional revolution. So the, you know, you're simply taught that this is conventional, that this is perfectly acceptable, that now Israel has a constitution, that in many ways, you know, the court's decision in 1995 is sort of uncontroversial and obvious. And I think the basic minimum of integrity for a lecturer or a teacher who's who's teaching this is to say, look, here are some of the major objections set out by the Chief Justice of the Supreme Court, who had recently retired, who ripped this thing to shreds and who points out some of its most glaring and egregious flaws, and even that is typically not taught in law schools. So that's just an example of the sort of groupthink and installation of thinking about this.

SPEAKER_02 51:53

And Yonatan, how did that affect you personally? I mean, what was your what was your perspective on these matters when you were in law school and how did you change?

SPEAKER_05 52:00

Yeah, absolutely. Um I'll answer, and this ties into a to a broader point I was gonna make. Um in law school, I was no, you know, I th there was no Federalist Society chapters uh in law schools, and I should say parentheses. One of the things I did in Israel is I founded the Israel Law of Liberty Forum with some amazing uh colleagues and partners, and that serves as the Israeli version of the Federalist Society. So now there is a student chapter at Tu University where students can get sort of build a network and be involved with this kind of thing. Um but no, I would, you know, I I this wasn't sort of a major important issue for me. I was sort of vaguely aware that there were some problems with what I was being taught. Um and I really start off the book with this exact point, Joshua, in in the preface. Like the very first paragraph, I think, of my book is about after law school reading a major book about these issues. It's a book that came out in 2012 by uh uh professor Daniel Friedman, who's was the dean of the Tel Aviv Law School and who was minister of justice, and he lays out some of these problems and issues and challenges to the Israeli Supreme Court. And I had read this book in whatever it was in 2014 or something like that, and it kept me up at night. I was losing sleep over it. I was pacing the room furiously, and I just had felt that I had been duped. I felt that I had been misled. I felt that I had gone through an entire degree at Israel's top law school, and a massive piece of the information, a massive piece of the puzzle was just missing and was excluded from my curriculum and from my legal education. And it actually made me, you know, quite quite resentful and angry at at the sort of legal education uh um uh that I received because you know some of these claws are so, sorry, these flaws, some of these flaws are so glaring that it's almost it has to be deliberate to sort of exclude uh the explanation and discussion of these things from the classroom and from your um education. There's a broader point which is related, which is really important, and I make this point also in the introduction to the book. People don't recognize how isolated Israel is from a democratic or Western perspective. And this is something that people I think also don't appreciate, they sort of take for granted in their own jurisdictions. Almost any Western democracy in the world has peers. It has other sort of sister Western countries with whom they have a natural, effortless uh um uh uh communication and mutual exchange of ideas, a natural effort exposure, one in one uh uh of which they're not hardly even aware, one which just happens naturally as their uh as their way of being. And these are typically either geographical and territorial, right? You have just neighboring countries which are also Western democracies, um, or it's linguistic, right? Other countries which speak the same language, right? So the US has not only Canada, which is a neighbor, but also Australia and the UK, of course, and other uh jurisdictions around the world. Or it's sort of cultural, more broadly, uh uh um uh uh cultural, whether it's you know similar uh um uh uh backgrounds and oranges or religious ties or uh or whatever it is, um and sort of you know, ethnic, ethnic ties, etc. Israel has none of these. And Israel is likely one of the only Western countries, especially if you exclude sort of you know South Korea or or uh Japan, which which you know sort of maybe belong to a slightly different category. Israel is the only Western type democracy which doesn't have any peers, it doesn't have any other Western countries in which you have a sort of effortless exchange of information and ideas. What this means is that it's much harder to dupe Israelis into believing this kind of crap, if you'll excuse my French. And this is this is hogswash, this is poppycock, this is ridiculous. I mean, the the very idea that you can have a judicial review without a written constitution, right? The very idea that substantive democracy means limitless power to unelected judges to impose their subjective moral ideology on every single citizen of Israel, right? This would not fly in most democracies, or it would take much more effort to sort of persuade the public that this is an issue, among other things, because you have this view of what happens in other countries. And it's much harder to fool you as a citizen if you're just aware of what happens in other countries. And Israelis have a very rudimentary, a very superficial, often a non-existent understanding of what happens in other countries around the world. And you know, and just one quick example of that to sort of drive home this point is that, you know, during the judicial reforms of 2023, law professors around Israel and politicians around Israel were saying that political involvement in electing judges was the end of Israeli democracy, right? That political involvement in choosing Israel's top judges is profoundly and right uh uh antithetical to the very idea of democracy. And anybody with a basic idea of what happens around the world would understand that this is a ludicrous argument, and yet this was made compellingly to uh you know uh to hundreds of thousands of Israelis who found this uh convincing and persuasive.

SPEAKER_04 56:45

Yonatan, the problem, of course, is even if Israel were less isolated, you have the same people in America on the left posting on X or Twitter or whatever it was at the time saying this undermines democracy. Because of course, it doesn't actually undermine democracy. It only undermines democracy according to their lights if they lose control of the courts. And so in a you know, it's a juris it's it's anti-democratic to try to bring judges under control in Israel if the judges that you're trying to bring under control are liberal. But in America, if it's a conservative Supreme Court, then you know, oh, it's a juristocracy giving the courts as much power. It is all about uh political uh power. That's it's all that this is about. And so, okay, I I which also makes me want to get to lawfare, which we promise our listeners who are making it this long to law fair. But before we get there, we have maybe about 10, 15 more minutes, okay? And so what I would like to do is complete this picture from my reading of your book, and you can just seize on on what you want. Okay, or we talked about this constitution that they invented in 1992 or in 1995 that included these vague provisions that they then invented unenumerated rights in dignity, proportionality. But before that, there was a judicial review of administrative law, of executive action, right? Not of Knesset legislation, not of parliamentary parliamentary legislation. And they invented out of whole cloth this reasonableness review, which effectively allowed them as judges just to weigh the reasonableness of executive action. And this is really important to our American listeners because this is what district judges are doing now with respect to all of the Trump administration policies. So this was so crazy. And I love, love, love, Jonathan, the examples in your book. Things like um there's this Palestinian Remembrance Day that that competes with the Umha Shawa, right? The remember the Holocaust Remembrance Day, obviously very raw to many Israelis. And so the there are all these West Bank Palestinians who petition to come into Israel to participate in this.

SPEAKER_05 58:47

I'll just say it's it's Memorial Day. It's like it's not the Holocaust Remembrance Day, it's the Memorial Day for the fallen soldiers and victims of terror. But yeah, sorry, go ahead.

SPEAKER_04 58:55

Okay, yeah. So my apologies. So this Memorial Day. And government after government, Likud, the other, it doesn't matter. Left, right, it doesn't matter, have said, no, we're we're not allowing a bunch of you to come in and, you know, uh rabble rouse during our memorial day. And the Supreme Court said, no, you have to let them in. There was an example of a foreigner who was part of the BDS movement, the boycott dives. And both political parties were like routinely rejecting these student visas. And the Supreme Court said, no, I've got to let them in. I mean, it's totally insane. Appointments. Appointments in Israel, okay, under reasonableness review, executive appointments are reviewed for reasonableness. And it's literally like Trump appointing Hegzeth, someone filing a petition in the Supreme Court with no standing, no injury, no case. And the Supreme Court says, no, we think having a Fox News host is unreasonable. That's literally the kinds of things they did. The craziest example, Jonathan, from your book, okay, was recently they tried to remove the head of the secret police who they uh both parties seem to think was largely responsible for a lot of the intelligence failures that led to the October 7th massacre. And the Supreme Court said, no, you for the first time ever, it's unreasonable to remove him. And so literally you have a government that's trying to remove the head of secret police who's also responsible for their security, who's now foisted upon them. Right? And like you can't you can't get rid of him. This is what this was so utterly insane. There's administrative law, there's a this this this court acting as administrator injury. And that's what in 2023 that was the first thing the judicial reform movement tried to get rid of. And it's that attempt, and it was as clear as a day that the law said, notwithstanding anything to the contrary in any basic law or otherwise, which of course it's all reasonableness review, it was all invented, right? So it's like how do you undo a doctrine that's totally invented out of the whole cloth, anyway? There shall be no reasonableness review of executive action. And the Supreme Court in 2024 said nope that violates the unwritten Israeli constitution. So not only did we elevate the 1992 basic laws to a constitution, now the parliament that can no longer undo it. There are now unwritten principles. This completes the rise of judicial supremacy. Okay, what did I get anything wrong? Uh any reactions to that? I just wanted our listeners to hear the story, though. Honestly, like I should have leaved something for the readers to see read in your book. And there is, there are lots of nuggets uh we haven't uh even gotten to. But is that story correct? And then we'll turn to lawfare.

SPEAKER_05 1:01:30

Absolutely, yes. And I'll just say a few quick words about that. But you you have you know these two moving parts to it, right? First is understanding the reasonableness doctrine itself, and then the attempt to sort of to stop it or to curb it. Um, you know, I think you described reasonableness really well. I'll just say that in sane jurisdictions around the world, and you know uh especially in the United Kingdom, but also elsewhere, common law jurisdictions, there is a sane version of reasonableness, meaning there is a actual illegal standard for review of executive action called reasonableness. And the idea of unreasonableness is somewhat intuitive, is that a government executive or government official could make a policy decision or an executive action which is so pr patently outrageous that it could be considered illegal, uh and importantly, it could be considered violating statutory law, even though it could somehow fit technically under statutory law. And the the classic example is the law says that the you know prime minister can appoint anyone to his cabinet and he appoints his horse. And uh and and right, and uh uh you know, nothing in the law says that the cabinet member has to be a human person, and the court says, well, that's you know, paddedly unreasonable. Maybe, maybe not.

SPEAKER_02 1:02:37

Um what the court Israeli Supreme Court did is introduce this idea of viewers or listeners who cannot view, we're seeing Elon and Catherine be like, well, you know, it depends on the horse, right?

SPEAKER_05 1:02:48

Depends on the horse.

SPEAKER_01 1:02:49

In Minnesota, we are famous for having a city with a mayor who's a dog.

SPEAKER_04 1:02:53

That's true. That's true, that's right. They do. I bet you he governs better than most humans. Anyway, okay, you're the time. Go on.

SPEAKER_05 1:03:01

I know what I and we'll see what the court would say about that. Uh um so the Israeli Supreme Court takes this word reasonableness and uses it as code for something entirely different. And as Ilan said, it is simply de novo review of any executive action or policy on its merits. And again, and this is the how the court describes it. The court says, we, and this is again the court's own words, we will uh uh evaluate whether the government correctly weighed the competing factors and considerations, meaning, did it reach the correct outcome? And it pretends this is a legal question when, of course, nothing could be more non-legal, nothing could be more uh uh clearly under the purview of government policy, of government prerogative. That's what we have government for. That is how policy is formulated. That's how decisions are made. Government officials weigh different competing factors, uh, you know, different competing interests, different considerations, uh, different values, different interests, et cetera, different priorities, different resources, et cetera, et cetera. And they make a decision. That's what they're there for. Um, and and and and Elan's examples um are also correct. You mentioned the appointments um issue. In the past few days, in the past few weeks, the court has been reviewing and has been holding active hearings on the appointment of the head of the Mossad, of the Israel's spy chief, right? Of the CIA, of the Israeli CIA. And this is, again, no basis of statutory law, right? Under statutory law, this is clearly within the prerogative of government uh uh and the prime minister and his government. Uh this passed all the procedural hurdles, it was approved by an independent review panel, which were right, and yet the court is holding hearings on this. Um it will it will likely eventually approve uh the hearing, but that almost doesn't matter. I'm sorry, the appointment, but that almost um that almost doesn't matter. So that's a reasonableness uh ruling, and it is absolutely insane. So I'm sorry, that's the that's a reasonableness standard, and that's absolutely insane.

SPEAKER_02 1:04:54

Um what you have described and what Elon has described um is is a story of utterly unconstrained power under the pretext of law belonging to the Israeli courts? I have uh another question about it. Has it ever been used, this unconstrained pretextually legal power, has it ever been used by the court on the right on the conservative side, or exclusively on the left on the progressive side? Has there ever been a relatively left-wing knesset or left-wing prime minister, and the court has been more conservative and has um wielded power, pretextually legal, unconstrained power on the right?

SPEAKER_05 1:05:43

The answer is yes and no, and it depends a little bit on what you mean by the right. Like, do we mean conservative justices who are still actually enacting sort of left left-wing policy?

SPEAKER_02 1:05:52

Um or you know, so I the overwhelming answer genuinely conservative policies or genuinely right. Wing policies. For example, anti-immigration policies or pro-security policies.

SPEAKER_05 1:06:06

So the answer is it's almost unheard of. You would have to try extremely hard to find a court which has used, and there's one big example which I'll give in a moment. But you have to try extremely hard to find a court which has used specifically the reasonableness doctrine. I'm not talking about just enforcing statutory law, but the reasonableness doctrine, this non-law cloaked in the in right, this judicial policy making, cloaked in the language of law, uh, you'd be extremely hard put to find examples in which the court was was serving or was was you know advancing a right-wing agenda or conservative agenda against sort of flesh wing policy.

SPEAKER_02 1:06:43

I I want to hear your one example of to the contrary, but um I think it's it's critical to get this point on the table that this pretextually legal, in fact, um uh political power in the hands of the judiciary, this unconstrained political power in the hands of the judiciary, is almost always a left-wing power. And that is true worldwide. As a guy who studies and teaches, you know, the judicial power in India and in Armenia and in Brazil and Colombia and Hong Kong and uh South Africa and New Zealand and Canada and et cetera, et cetera, et cetera, there are vanishingly few examples. I won't say none, but vanishingly few examples of this form of power ever being used on the right. The shape of politics everywhere is the shape you see when Netanyahu squares off against Barack, or Modi in India squares off against the Supreme Court, or Bolsonaro in Brazil squares off against the Brazilian Supreme Court. It's always the same. You've got the people electing relatively conservative figures, a Trump, a Bolsonaro, a Duterte, a Modi, a Netanyahu, and them trying to do relatively conservative things and a judicial power, a huge, massive, pulsating judicial power of uh almost nuclear energy being used on the left against it. It's critical for all of us who are based to understand that that is the character of the world today.

SPEAKER_05 1:08:19

Um absolutely, Josh. And I think you uh, you know, I I couldn't have said it better. Um there are, you know, the left's sort of excuse to this, tends uh excuse for this tends to be, and this is especially certainly the case in Israel, where they say, well, what do you want? The the the right has been in government in Israel for the past 30 odd years, on and off. And so of course, if the you know the court is holding the government accountable, and if it happens to have been a right-wing government over the uh past 30 years, then of course it's the court uh which is uh primarily sort of, you know, it we're not enacting left-wing policies, we're just uh uh um uh you know impeding the the right wing government's lawlessness. And if we go more broadly, of course, if we go more broadly, the way that the left justifies this all over the world is that uh the right wing through all over the world is cu uh you know uh uh um uh consistently or or or gradually becoming more lawless, is has less and less respect for you know basic constitutional norms, whatever it is, and therefore the court is sort of called the courts are called to uh hold these right wing governments back uh um uh uh you know more more forcefully. Uh we know this isn't true, and I think this is a very poor excuse, and this is the whole point that when you look at the merits of these cases, when you look at the legal doctrine, uh you know that's uh uh profoundly untrue. And the real-based take or the real understanding of this is very, very simple. The left wing has a far less principled commitment to democracy as we know it. The left wing has a far less uh uh uh based.

SPEAKER_03 1:09:47

This is all based, oh you should come back to Jonathan.

SPEAKER_05 1:09:50

Not just the global, the the global left, when I mean say that I don't mean the left as a global apparatus. I mean the left in all its different statuations around the world has a far more tenuous commitment to democracy than it pretends to have. It is actually, and they often say this, meaning they will often say this in the clearest terms, right? They are much more interested in the outcomes and in the policies and whether they want to call it justice or universal human rights or whatever other code they want to use. Um, many people on the left, unfortunately, and this is increasingly the case throughout the world, just believe less and less in democracy and in democratic government and democratic power. And then, of course, we can hardly be surprised that the left is more and more uh sort of desperate or more uh um uh bold in its use of patently undemocratic mechanisms uh to get its way. And the last thing I'll say about that is, of course, I hope you all have read um uh Thomas Sowell's book, A Conflict of Visions. And if you haven't, then I'll I'll you know send send all our readers to read that book, which I think is a fundamental understanding of left and right differences. But he has some very important chapters there on judicial power and on the way sort of the different worldviews understand judicial power um and judicial institutions um in the world, which is I think that that that has contributed greatly to my understanding um of this issue. Coming back, yeah, Ilan, I want to answer your last question, which is which is uh to to bring this all in and to give us a picture of where we are now. So exactly as Ilan says, the Israeli Supreme Court comes along in 2024, right? The government in 2023, the Israeli Knesset enacted this piece of legislation. And basically what the Israeli Knesset did, the Israeli legislature did is said, okay, Supreme Court, we're gonna play along with your rules. If you're saying the basic laws are Israel's constitution, if you're saying that the Knesset, the Israeli legislature, can also enact constitutional norms using its power as a constituent assembly, which is ludicrous, but we'll set that aside for a moment. The Knesset says, okay, we're gonna play by the rules that you've created. And the Knesset comes along and enacts a new law which limits the court's use of reasonableness review. I'll say as an asterisk, uh, it's not that they ruled out all use of reasonableness against executive action. It was only against ministerial decisions, right? So decisions made by a minister, right, by a head of head of a government department, right? These are so it's not even all executive action. Reasonableness still works for all executive action. And then even decisions by government ministers or the prime minister or the government, you know, the cabinet, uh, these are all subject to all regular standards of judicial review, right? Meaning uh ultra virus and discrimination and procedural flaws and et cetera, et cetera. Um the court, so the Knesset enacts this law as a basic law, as a constitutional amendment under the court's own doctrines. And the court comes along and says, nope, we're gonna strike that down as well. And Ilan, I just want to correct you. It's not that there's an unwritten constitution, it's that there is an e formal nebulous super constitution. Is that it's that Israel has a core fundamental character which supersedes even its so-called constitution under the court's uh uh understanding. Um sorry, that Israel has this fundamental character which supersedes the court's uh uh the superstition under the court's understanding, and that can never be uh uh uh uh overrided or or uh contradicted even by a basic law, even by a constitutional uh amendment. And this is amazing for a variety of reasons, but one of them is that the court has in one fell swoop thrown out the window its own entire doctrine since the constitutional revolution, since 1995, meaning the entire conceptual, theoretical, intellectual framework of everything that the court has done since 1995, uh uh uh which was uh crazy but actually straightforward. It just says, okay, basic laws are a constitution. We're just enforcing the constitution. This is extremely simple. Why are you making such a big deal out of it? Yada yada. It then saws off the only branch that it's sitting on, the the the right, that the only flimsy branch that any lit any any legitimacy the court still sits on, it just saws it off completely and says, actually, Israel doesn't really have a constitution because we the court can throw out any attempt by the pop by the public uh to change uh uh um uh this so-called constitution. And amazingly, amazingly, under the court's own doctrine, since 2024, the Israeli electorate and public have no recourse. Literally, they have no ability uh conceptually, there is no ability by the Israeli public to change the court's decision on this or to enact their desire to the policy or rules if the court sufficiently dislikes it. This is under the court's own doctrine.

SPEAKER_04 1:14:25

Really based here. So just so our listeners understand what happened, okay, the Supreme Court in Israel changed the rules, right? They said, here, we're gonna start judicial review in 1995 based on these basic laws, but parliament could always change it. Knesset could always change it. Just kidding, 30 years later when Knesset tries to change it, they're like, no, we're changing the rules. Now there's this in the ether, there's this idea that Israel is a democratic state that we the court get to enforce. And what's democratic, whatever the progressives are like. This is totally insane. My base take is uh haven't they usurped power? Aren't they are they any different than William the Conqueror? And I don't know what happens to usurpers. But anyway, I don't want to um, you know, maybe go down that rabbit hole at the moment. We promised last five minutes. I know we went over today because this is such a wonderful discussion. Wait, wait, wait.

SPEAKER_05 1:15:16

Just two sentences before law affairs. One is that I have to share, I have to share with the readers one of the points that I make uh about what where we are now in terms of the court after what it's done in 2024, is that I like to say it's a little bit like Wiley E. Coyote, the cartoon character who runs off a cliff and is sort of suspended in in mid-air before gravity catches up and it plummets down. That's kind of where the Israeli Supreme Court is right now because it's done this crazy thing and it's really pulled the trigger, and that's a gun you can only shoot once. It has completely shot any credibility. And I think we're now in this sort of limbo uh uh uh really sort of precipitating or preceding the downfall of the court in many senses. And two, you asked about what we do to usurpers, so I won't answer that either, but I will say, and this is extremely useful, this is how I get the left sometimes to think about it, or sort of people who are less naturally uh less naturally understand the problems with judicial uh usurpation, judicial supremacies. I say this. Imagine that any of this done was done by a military general or a national police chief or something like that. Imagine a military general comes along and says, uh, you know, I think this is unconstitutional based on you know uh abstract principles, or I think this is unreasonable, and therefore I'm just gonna enforce my sort of opinion on this. And if we think that generals shouldn't be allowed to make these decisions for society and the public, then what possible justification could be could there be for judges uh to do so, except for it, you know, it's just a different uniform, but the concept is the same, the democratic problem is the same. This is a thought that I like I like to leave people with. And now, please law fair.

SPEAKER_04 1:16:50

Maybe the justices of the Israeli Supreme Court will be tried uh by the Hague or something. Okay, no, obviously that's uh preposterous, but that's really the analogy. Okay, so last little point, just so there's a lot actually about lawfare in the book, but just one small point, and then you can take this where you want and we'll we'll wrap up, okay? The judges basically appoint themselves, right? Part of it is because there's a whole committee, and the com uh the committee, there are enough justices on this committee that they have a veto, a troll. So you have to get the approval of the justices to appoint a new justice, which is uh utterly insane. Okay, but there are two members, correct me if I'm wrong, uh, of the Israeli Bar Association, maybe including its president, uh said, uh on this committee. Well, lo and behold, there was once upon a time two members of the Israeli Bar Committee Bar Association sitting on the committee who opposed the judicial activism of Aharon Barak. What happened? They were criminally investigated all of a sudden and had to resign from the committees. And of course, neither of them was convicted of anything because these were kakamimi preposterous charges. But does the left have no shame? Last question, Yonatan. What do you think?

SPEAKER_05 1:18:03

I actually I'll I'll just say one sentence about this, and I really want to hear Joshua's take because I know that sort of criminal, you know, criminal justice is a large part of Joshua's um uh expertise in areas of research. Um I dedicate a sizable chapter in my book to criminal justice. Um that chapter is called criminal injustice. And another sizable chapter to the legal counsel, to the government, and part of that is their sort of the way they oversee uh uh you know the criminal justice apparatus um in Israel. And what I'll say simply is that I think people outside of Israel don't recognize and have trouble understanding the extent to which the criminal justice system has been weaponized in Israel by the courts, by the judicial supremacists in camp, by the political left, uh to suppress dissent, uh, to quell political opponents, especially political opponents of judicial supremacy. Uh this has happened to ministers of justice, this has happened to esteemed politicians. Uh I should say that uh Ruby Ruby Revelin, right, uh uh who eventually became president of Israel, coined the term the rule of law gang, the rule of law street gang or the rule of law hoodlums. Thugs is what you say, I think, right?

SPEAKER_04 1:19:11

The rule of law thugs.

SPEAKER_05 1:19:12

I can't I always I'm always searching for the right translation. The rule of law thugs.

SPEAKER_04 1:19:15

I love this, but I just want to I just want to hop on this for a second because Americans care about this. The rule of law thugs. It's the people in America who are chanting rule of law, rule of law, rule of law, who are going after your lawyer's license. So you can't defend people, you can't defend clients, unpopular clients. Those are the rule of law people. They're thugs. Isn't that what your book suggests?

SPEAKER_05 1:19:36

Um absolutely, and and I I I again I I don't want you to be, um I don't want the reader or the audience to be um put off by this very vague generalization. Read the book, read the chapter on the dairy doctrine, uh, where the Supreme Court developed an idea that if a cabinet minister is investigated for crimes, they need to be dismissed. And of course, the court by doing so simply c uh uh confers an impeachment powers on any criminal prosecutor, on any criminal investigator, on any police investigator who wants a criminal who wants to investigate a politician, automatically that politician's career is terminated or put indefinitely on hold. Um so I go into huge detail about this, and I think, unfortunately, and I I want to caveat this at the very end when I'll say something defensive about Israel, but um if we're talking about the dark recesses or the darker, more sinister corners of judicial supremacy in Israel, right? One, Ilan, you've mentioned, if there's anything anti-democratic about Israel, is it's it's it's is its Supreme Court, right? Meaning the most patently anti-democratic Israel feature of Israel today is its Supreme Court and what that Supreme Court has done. If there's anything patently illiberal about Israel, right, if there's anything genuinely frightening, if there's any way in which one would should be concerned about Israel devolving into a uh authoritarian state, it is that. It is the weaponization of criminal justice by the political left, by the legal legal establishment, against uh uh uh dissenters, against and and I think you know it's fair to say at this point in Israel, we have actual political dissidents, right? We have actual people who have been hounded out of office, sometimes even property, life of limb jeopardized, uh uh endangered, and and compromised by uh um uh a criminal uh justice system which is extremely eager and willing to sort of uh enforce the court's power and to maintain the court's power. There's a reverse side of this where the court also protects the autonomy and independence of these um uh uh organizations and agencies. I'll say one more thing and then I want to hear uh uh Joshua's take on this just because Catherine uh asked for examples earlier. I want to give just one more example. A law was enacted in late 2022 which gave stronger ministerial oversight over the Israeli national police. So Israel has one large national police force, it's not municipal like in many other countries. This presents a host of other issues, we won't get into it. But the law simply said that the minister of national security, who is a minister, right, the government cabinet minister who's in charge of the national police, has broad oversight over militar uh sorry, over police priorities and policies. Okay, it wasn't like the minister could, you know, uh direct specific prosecutions or investigations, obviously nothing remotely like that. And this is basic, this is standard, this would be acceptable in any democratic country. A, the court struck that down. I should start with a B. B, the court struck that down, and the reason was human dignity. This is fantastic. Meaning the court had to come up with this absolutely insane reason because it still has to pretend that its judicial review is about enforcing human rights because that's what it's doing. So the public has a right, as part of the right to dignity, the public has a right to faith in the national police as an institution, and that faith would be compromised by political oversight of the police, right? Never mind that deep state. They're just this is the mother of all deep state. And and I mean, you you can think of the audacity of these people because any person in any Western democracy knows that there's nothing more chilling than the idea of an autonomous police force which is not supervised and does not directly answerable to the political branches, to uh politically accountable and elected um um uh uh oversight. And yet this is what the court was uh uh championing. This is an example to save the court doing so. Yes, Joshua.

SPEAKER_04 1:23:25

Joshua, Josh, two sentences, and then Jonathan, you get one to say something positive about Israel, because there's a lot to say that's positive, notwithstanding the Supreme Court's evil descent into this crazy judicial supremacy. Josh, instincts, reactions.

SPEAKER_02 1:23:42

Just super quick, because I know we're we're running really low on time. Um I think what our listeners and viewers should glean from this is that the kind of law fair we've seen in recent years against President Trump and against anyone who might support President Trump, the weaponization of the criminal system, the weaponization of the civil justice system has numerous parallels in Israel. Um and it's been directed against Prime Minister Netanyahu, it's been directed against others who are, as Joritan said, called dissidents. It's not just Israel, it's not just the United States. Think about Brazil. Think about what's happened with Bolsonaro and and his government. These are worldwide patterns, and we have to um understand them, I think, fundamentally uh as the uh um the the way I think of them is the legal profession is the uh leading representative in politics of the opinion of the educated class. And the Western Western educated elite everywhere is a left-leaning elite filled with an arrogant, suffused with this arrogance, this uh insane self-confidence in their vision of justice, and willing to use wrongful means to pursue their vision of justice. And so we have everywhere elite opinion centered in the legal profession being wielded through the legal profession against others. And those of us who are based, and particularly those of us who are base lawyers, have to think about how to respond within to a global phenomenon that's affecting our country here in the United States in ways that still maintain, you know, a fundamental commitment to the rule of law, which we share, just not the rule of law as they corrupt that term.

SPEAKER_01 1:25:34

There's no better example, Josh, I think, than the one you gave Jonathan of the immigration example that we hear all over the world, which is basically just to me, we keep saying right and left, but to me, elites wanting to hold on to power. The idea that it's only dignified if we have open borders is of course absurd, but it's an excuse for people in positions of power and our elites of society to really hold on to that power, I think. So that's a great point, Josh.

SPEAKER_04 1:25:59

I love the escalating basedness. Okay, we really have run over, so thank you to our listeners. But one line to Jonathan, go. Support support of Israel, something positive.

SPEAKER_05 1:26:10

As is my want, I'll say support of America, and then support of Israel. Support of America is just to say, in terms of Joshua's point about this global phenomenon, the founders had it right. Fourth, fifth, and sixth amendments, uh uh genuine protection for liberties, uh uh, especially in the context, especially in the context of criminal power and the country and and the state use of violence and the criminal uh you know uh law enforcement and criminal justice system. Um a general predisposition to limited government, to suspicion of the government apparatus of state agencies and state bureaucracies, that is the healthy outlook which we should be advocating for and supporting on classical liberal grounds and democratic grounds. The founders had it right. On Israel, and I usually say this at the at the beginning, Israel is a wonderful place. Israel is an amazing, phenomenal, marvelous, marvelous place where I was born and raised, where my children were born, it's where we will continue to live in the future. And it's filled with thoughtful, well-meaning patriots, including even in the judiciary for the most part, uh, including maybe probably on the Supreme Court itself. So none of this should be taken as a condemnation of Israel. This is an enormous problem that needs to be fixed. And in order to fix this problem, we need to understand it. In order to understand it, we need to we need to take a very close, hard look, which can make us very uncomfortable about the realities of this problem. At the end of the day, this is a defense of Israel. Because to our listeners and to others, people need to understand when the Israeli electorate and when the Israeli government come to fix these issues, and when they come to curb judicial power, as they surely inevitably will, and as this issue will come uh uh will circle back again uh and will resurface. Um, this will be the essence of democracy, not anti democratic, not the end of. Israeli democracy. And this is the defense of Israel to say these policies to curb the court's power will be absolutely democratic and they will be uh countering the court's under undemocratic power.

SPEAKER_04 1:28:11

Jonathan, thank you so much for joining us. What a wonderful book. Josh, we will have you back. We love your baseness. This was so exciting. That's all we have time for today. Thanks for letting us go a little bit over. Please like and subscribe and see you next time.