Game of Chicken: Israel's Litigation Over Striking Down the Reasonableness Doctrine

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On September 12th, the Israeli Supreme Court, sitting en banc with all fifteen justices for the first time, heard eight petitions challenging a constitutional amendment that limits judicial review over governmental actions based on the reasonableness doctrine. Passed with only coalition support (64 out of 120 Knesset members), the amendment aims to strip the Court of the ability to deem government actions unreasonable, raising concerns over checks and balances in Israel’s parliamentary system.

The petitioners argue the amendment undermines Israel’s core constitutional identity as both Jewish and democratic by eroding judicial oversight, promoting corruption, and weakening the separation of powers. They claim it constitutes a misuse of constituent power, primarily serving political interests rather than maintaining constitutional principles.

The government contends that the Court lacks authority to invalidate constitutional amendments, asserting that doing so would be a despotic overreach. It argues the amendment strengthens democracy by limiting what it views as excessive judicial interference.

The Attorney General (AG) has taken an unprecedented position by supporting the petitioners, citing concerns that the amendment would irrevocably damage Israel’s rule of law and separation of powers. The AG emphasizes the need for the Court to act before losing key liberal justices, who are soon to retire.

The dispute highlights a broader struggle over Israel’s constitutional identity and the boundaries of judicial review. With both sides entrenched, Israel faces a constitutional crisis where neither party appears willing to back down.

Suggested Citation:

Game of Chicken: Israel's Litigation Over Striking Down the Reasonableness Doctrine, VerfBlog, Sep. 13, 2023