Learning from Judicial Activism in the Holy Land

Rogue Justice: The Rise of Judicial Supremacy in Israel, by Yonatan Green (Academica Press, 698 pp., $40)

Yonatan “Johnny” Green’s Rogue Justice is the book Americans needed when they watched, bemused, as Israelis took to the streets in 2023 over something called “judicial reform.” It’s an exegesis of what happens when a high court is allowed to become a super‑legislature—and why Americans who think “the courts will save democracy” should be careful what they wish for.

Green writes with the zeal of a convert. As he recounts, his own “red pill” moment came when he read Daniel Friedmann’s assessment of the Israeli Supreme Court and realized that Israel’s legal elite had taught him a carefully curated version of reality. That shock ultimately led him to found the Israel Law & Liberty Forum—essentially Israel’s Federalist Society. That gave him a front‑row seat to the country’s legal wars, as well as access to a deep bench of sources across the ideological spectrum.

The book is organized in three parts. “Foundation” details the structural oddities that made Israeli judicial supremacy possible, especially the way judges are chosen and the court’s centralized control over the entire judiciary. “Ascendancy” traces how, beginning in the 1980s, the court discarded traditional doctrines of interpretation, standing, and justiciability, and armed itself with tools like the “reasonableness” doctrine and what Green calls the “Deri doctrine” of judicial impeachment. “Supremacy” then shows how the court crowned itself constitutional overlord—without a written constitution—through its invention of a “pseudo‑constitution” and aggressive judicial review of Knesset (parliamentary) legislation.

For American readers, the most striking chapter may be the one on judicial appointments. Israel’s Supreme Court justices are effectively appointed by three justices and two bar representatives, who together constitute a majority of the selection committee (which also has two cabinet ministers and two Knesset members). Because appointments require seven of nine votes on that committee, the sitting justices hold a veto. As Green shows through episodes like the blocking of the eminent scholar Ruth Gavison, they use that veto power to enforce ideological conformity. No one explains the perversity better than Northwestern’s Steven Calabresi, whom Green quotes: “The Israeli Supreme Court, by selecting its own successors, is a judicial oligarchy.”

That line should send a chill down the spine of anyone who has ever complained about American judges “legislating from the bench.” Unlike in the United States, where appointments are overtly political but ultimately accountable to elected officials—see my own book on judicial politics, Supreme Disorder—Israel combines maximal judicial power with minimal democratic control.

Green notes that in almost all developed democracies, either courts cannot strike down laws or the judges who wield such authority are chosen, directly or indirectly, by the people’s representatives. Israel is the outlier.

Equally important is Israel’s lack of a constitutional moment. Green reminds us that the Jewish state, born in war and improvisation, never had its Philadelphia. Drawing on the comparison explicitly, he observes that Israel had no constitutional convention, no Federalist Papers, no Hamilton or Madison; its institutional order accreted from Ottoman remnants, British colonial law, and ad hoc necessity.

“Israel had many founders, but no framers,” Green writes. That absence made it easier for later jurists—especially Aharon Barak—to smuggle in a “constitutional revolution” without anything so crass as a democratically adopted constitution.

Green is careful, even generous, in how he describes the Israeli court and legal bureaucracy. He stresses that most judges and prosecutors are capable and patriotic, and that for much of Israel’s history the court performed its core function admirably.

But the heart of the book is his painstaking demonstration that, over the last four decades, the Court has “methodically and unilaterally accrued political power at the expense of the elected and accountable branches of government.” “Lawlessness” is its defining trait: a willingness to subvert texts, precedent, and basic democratic norms in pursuit of its own vision.

Americans will recognize many of these themes, if not the extremes. Where our Supreme Court stretched “substantive due process” or invented tiers of scrutiny, Israel’s discovered unwritten rights in vaguely worded “Basic Laws” that were never enacted as a constitution. Where our administrative state blurs the line between lawmaking and law enforcement, Israel has a “Legal Counsel to the Government” who operates as an unelected veto player over the elected cabinet, backed by a court that treats legal bureaucrats as Platonic guardians and elected politicians as presumptive malefactors. Where some American scholars flirt with theories of judicial supremacy, Israel lives under it.

Most powerful is Green’s account of how Israeli judicial politics became a “death by a thousand cuts” story: seemingly technical doctrines on standing, justiciability, and proportionality gradually made the Supreme Court the final word on everything from welfare eligibility to military strategy, often with little concrete benefit to actual litigants or minorities. The recent saga over the “reasonableness” amendment to the Basic Law—which tried to limit standardless judicial second-guessing of government decisions but was struck down in a 736‑page, 8–7 ruling as the country reeled from the October 7 atrocities—serves as the capstone example of an institution unwilling to accept any external limit.

My lone complaint is that Rogue Justice may be too thorough for its own good. Dense with case law and institutional detail, it may intimidate those who don’t already care about Israeli legal arcana. Green knows this and structures the book so each chapter can stand alone, but I worry that judicial-reform junkies will be the only readers who make it all the way through.

That would be a shame, because the story he tells isn’t only about Israel. For Americans, Rogue Justice functions as both mirror and warning.

We’re fortunate to have a written constitution, a pluralistic judicial appointments process, and a healthy culture of intellectual dissent about judicial power. But we aren’t immune to the temptations Green chronicles: the allure of making courts the primary policy battleground, the deference to “experts” over elected officials, the casual assumption that democracy is safest when insulated from the demos.

Green closes by urging Israelis to reclaim their constitutional future through a constituent assembly or other process that would enjoy popular legitimacy, not more judicial improvisation. American readers should draw a parallel lesson: the rule of law ultimately depends not on robed guardians, but on a political culture that insists that the most consequential questions be resolved by the people themselves, under law they can recognize as their own.

Photo by YAHEL GAZIT/Middle East Images/AFP via Getty Images