The power of the legal system rests on the principle of rule of law. That states that law holds all government authorities in check. Legal officials serve rule of law, and their authority stems from its obligating power. For the legal system and legal officials to apply their authority to the branches of government and the institutions of society requires a broad interpretation of the law as well as well-defined limits to its authority.
There are four main tools the legal system uses to impose itself on the government's political decisions: stopping decisions at an early stage; all-inclusive judging; expropriation of considerations of what is "reasonable"; and unlimited interpretation.
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The early targeting of processes that do not align with its preferences can be seen in the system of legal advisors working in public service. They are all under the attorney general, who is also the chief prosecutor. Recently, their "counsel" – which is their own interpretation of the law – has in effect become a dictate. They can reject government policy and even Knesset laws, claiming that they are illegal (or there are "legal obstacles" to implementing them). Elected officials who are trying to promote the agenda they were elected to promote are afraid to be cast as violators of the law, and sometimes afraid of being prosecuted. The norm of everything being justiciable that the Supreme Court has applied to the public sphere makes it tempting to formulate even clear political victories in legal terms. Even when the judges choose not to discuss them, they make sure to stress that they have the authority to do so, and will do so whenever it is convenient.
Rulings like these deal with the balance between goals and values, between which exists an inherent tension. This is the core of politics, and to decide on the balance point of that tension, which changes with the circumstances, politicians are elected by the sovereign entity – the people. This is precisely the decision that is usually supposed to be outside the field of legal officials. They have no comparative advantage there. Leaving it entirely in the hands of the judges basically renders elections and a democratically elected government superfluous. This is an area in which important aspects have been confiscated by legal officials from the elected leadership and from social and cultural institutions. Only in certain extreme situations is it appropriate for the Supreme Court to decide that this balance is so unreasonable that the decisions by lawmakers are illegitimate. When the judges can rule on almost any subject, after creating a reality in which any clearly political matter can, in real time, be brought before them as the supreme appeals court of politics, it's no wonder that they have lost a great deal of the public's faith.
To make obvious political decisions like these and excuse them as legal rulings requires almost unlimited room for interpretation that is undeterred in ignoring the letter of the law. Former Chief Justice Aharon Barak himself decided that "in the proper cases, it is permissible and even appropriate to give a liberal interpretation to what is written, even when it supposedly contradicts the explicit wording." When we combine that determination to the many cases in which the Supreme Court has in effect done exactly that and to the perception of a "meaningful democracy," which was stitched together for the same purpose, we can allow nearly any "legal" dictate on nearly any purely political decision, in almost any direction the judges seem appropriate.
Among the justifications used by the enlightened sanctifiers of legal rule for the expropriation of national decisions by elected officials, it would be fitting to expose the failures of that which hangs on politicians' vested interests, their avoidance of making decisions, their lust for power, their lowly personalities, and the lack of functionality by the political and governmental systems. There is a grain of truth in this grim picture. First of all, the judges (who are human, remember?) have proved over and over that they are not proof against vested interests and ambitions of power. Secondly, the democratic regime (even "meaningful democracy") prefers the rule of the people over efficiency and better functioning. The IDF is more efficient than the government in many areas, and security is vital, but the General Staff do not aspire to foist its will on the nation. "Rule of law" and its justified application to decision-makers do not require "rule of lawyers" in every area of our lives.
Israel needs a strong and independent court that operates in its legitimate area as a guardian of civil rights and a check to the other branches of government, but also recognizes the importance of limits to its own power. The Supreme Court judges are "supreme" only in the legal system
