The Saad Truth with Dr. Saad - Yonatan Green - ＂Rogue Justice - The Rise of Judicial Supremacy in Israel＂ (The Saad Truth with Dr. Saad

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00:01:05.720 Hi, everybody. This is Gad Saad. It's been a few weeks since my last guest, but as always,

00:01:11.460 another fantastic guest today, Yonatan Green. How are you doing, sir?

00:01:16.580 Very well, Professor Saad. Thank you.

00:01:18.440 Please call me Gad, but I appreciate the lovely courtesy. Your parents taught you well.

00:01:22.880 All right. You just came out with a book in October, Rogue Justice, The Rise of Judicial

00:01:30.960 Supremacy in Israel. How dare you criticize something of Israel? This might make you an

00:01:35.960 anti-Semite. Number one, there's the book. I'll say a word about that. That's a really good

00:01:41.180 point. I have kind of a disclaimer about that. But yeah, go ahead.

00:01:43.900 Okay. Yeah. So hold on. Hold on. You're currently a fellow at Georgetown University Center for the

00:01:49.880 Constitution. I am currently a scholar at the Declaration of Independence Center for the Study

00:01:57.500 of American Freedom at Ole Miss, because apparently the real ethos of freedom is now

00:02:02.960 largely in Southern universities in the South. So we could talk about some of those links.

00:02:08.800 You were the co-founder and executive director of Israel Law and Liberty Forum, kind of modeled after

00:02:16.440 the Federalist, born and bred in Israel, practiced law in Israel, but also, I think, in New York State.

00:02:24.940 Is that right? New York State? Licensed in the state of New York. Yeah.

00:02:28.100 Right. So and I think we discussed off air. The reason why it's important to mention this is because,

00:02:32.600 as we'll be discussing, you'll be talking about some of the differences and similarities between

00:02:37.200 the Israeli judicial system and the U.S. So you're well-placed to do that. I will now shut up.

00:02:43.200 Give us a big summary of the book. Wonderful. Well, thank you so much again,

00:02:48.120 God, if you insist, for having me on. I should say, first of all, yes, I mean, you know,

00:02:53.520 this is we are allowed to and often do criticize Israel. And, you know, this is kind of, I think,

00:02:59.260 one of the one of the things which is lost people sort of lose sight of that Israel is a real place

00:03:05.080 with real problems, real challenges, real things simply to be fixed. And many of these

00:03:10.000 exist well outside the Israeli-Palestinian conflict or the Israeli-Arab conflict. And this is kind of,

00:03:16.000 you know, people also, I think, sometimes like drawing everything into that specific context of,

00:03:21.000 you know, the war surrounding Israel or its enemies, etc. But Israel is just a real place with

00:03:26.500 real things going on. I know you visited there very recently. Right.

00:03:29.440 And I understand you had a overall a positive experience. Very much. I don't know if you were,

00:03:34.820 I don't know if you were quite, you know, had the horrible Tucker Carlson experience in the,

00:03:38.940 Well, can I mention this before you go on? Yes, please. Yeah. I was actually going to

00:03:44.420 comment on this when I saw, you know, Tucker was tortured and beaten and so on. I was driven by,

00:03:51.920 you know, the Israeli government, like real VIP service by Minister Shikli, the whole thing.

00:03:57.620 And I, and everybody knew me and people were taking selfies with me.

00:04:01.860 And yet I still had to go through the intense security. So no, they weren't mistreating you.

00:04:08.120 They even do it to God's side. Exactly. Exactly. This is, we might get to this a little bit later,

00:04:13.500 you know, sort of security measures, the balancing of security measures, you know, cost versus benefit

00:04:19.140 that actually just remind me of a great case directly related to airport security or sort of that

00:04:24.140 kind of immigration. So we can return to that. So yes, I've written a book called Rogue Justice,

00:04:29.580 The Rise of Judicial Supremacy in Israel. And here, I'll show you guys the, the, the book.

00:04:35.140 It's a big one. Well, it's a big one. It's a big one. 680 pages, I think.

00:04:39.440 It's yeah. Yeah. It's a little, it's a little bit less when you, less when you take out the index and

00:04:43.220 the, and the notes, but it's, it's a hefty tome and that ties in, I think, well, first I'll make a

00:04:47.320 disclaimer, which I guess is important, which is I'll make this really quickly, but this book is

00:04:50.840 extremely critical of a certain aspect of Israeli government. And it takes a particular problem,

00:04:55.460 which I consider and many consider to be fundamental. And I analyze it and I dissect it

00:04:59.860 and I lay out the argument of what's wrong, but that is not a condemnation of Israel per se. And

00:05:05.620 I, it's always important for me to say, Israel is a phenomenal place, an extraordinary,

00:05:09.400 marvelous country. It's, it's my home. It's where I was born, where my children were born,

00:05:12.820 where we will continue to live in the future. And, you know, and even its legal system and most of its

00:05:18.140 judges and most of its, you know, uh, people involved in government are, uh, capable and

00:05:23.400 well-meaning patriots. Um, so this is always an important kind of asterisk that I give not to make

00:05:27.160 it too easy to make this sort of a, a, a takedown of, uh, of Israel. And you mentioned how big the

00:05:32.080 book is. Well, this is an extraordinarily complicated problem with a, with a really sort of long history.

00:05:37.560 And, uh, you know, I like to say sometimes, even if we come out of this conversation, you're not

00:05:41.400 going to be a, you know, a heck of a lot that much smarter on the issue because the details matter a lot.

00:05:47.060 The details matter an extraordinary degree. And there's only so far you can get with all,

00:05:51.560 you know, all kinds of different slogans and headlines and broad sort of sweeping descriptions.

00:05:56.040 At the end of the day, I think both you, uh, God and any other sort of reader, uh, whether you're

00:06:00.900 with a legal background or not, when you read what the Israeli Supreme court has done and its proxies

00:06:05.880 have done over the past 40 years, uh, you'll have to pick up your jaw from the floor by the end of it,

00:06:10.940 because you'll be so astounded. And in some instances, so appalled that there'll just be no coming

00:06:16.440 back from that. And you'll ultimately end up feeling that this is something which is indefensible

00:06:20.340 and that completely needs to be, uh, revamped and fixed.

00:06:23.640 So give, so let's pick your top two or three examples, very concrete, understandable by the

00:06:30.680 average intelligent viewer who may not be into all the weeds. Describe to us that case and then

00:06:37.500 demonstrate how, say that's unique to Israel in comparison to say how it might have worked out

00:06:43.480 in a American context. Sure. Absolutely. So I'll give you sort of two easy ish examples,

00:06:48.980 right? Where these things would just be unimaginable in, in other countries, uh,

00:06:53.220 certainly the U S but also elsewhere. Um, in the, in the mid 1980s, the Israeli Supreme court,

00:06:59.220 I should say this, this book sort of recounts what's happened over the past 40 years where the

00:07:02.880 court also shifted its own perspective on a variety of things, meaning the court until the 1940s for

00:07:08.200 about half the country's existence, um, took a much more, uh, modest and sort of humble approach.

00:07:14.260 It was extremely robust and holding government accountable, executive government accountable,

00:07:17.980 but it was also very serious about simply, uh, um, uh, upholding the law and implementing the law

00:07:24.220 as it is and not as the judges would want it to be. So in the 1980s, the court developed a doctrine

00:07:29.400 called reasonableness, uh, review. And unlike what that word sometimes means in other jurisdictions,

00:07:34.640 what this meant in Israel was that the court could simply reverse engineer ad hoc, any government

00:07:40.800 decision, any executive government decision, and decide whether the government correctly balanced

00:07:46.540 the competing factors, meaning whether the government reached the correct outcome, the correct, uh, uh,

00:07:52.900 um, resolution, correct decision in its balancing of different factors. And of course, this is what

00:07:57.680 what government does. But the example I'm going to give you is that in the early nineties, the court

00:08:02.120 developed a, uh, doctrine, which they called the Derry Doctrine, because this was after a particular

00:08:06.480 politician called Arya Derry, who's still around, um, where the court compelled the prime minister,

00:08:13.840 this is similar to the president in the United States. It compelled the prime minister, Yitzhak Rabin,

00:08:18.140 he was a labor prime minister, left-wing prime minister. It compelled the prime minister, Yitzhak Rabin,

00:08:22.700 to fire, to dismiss two of his cabinet ministers because they had been indicted for, or they were

00:08:29.620 suspected of certain crimes. Now, the key point here is that statutory law didn't mandate this in

00:08:35.360 any way. Statutory law said that you had to fire a minister, a cabinet minister, if they were convicted.

00:08:40.880 And anyone who knows a little bit about law knows that an indictment is just a prosecutor saying,

00:08:45.980 I'm going to take this person to court. And a conviction is after a judge and a jury and etc.

00:08:50.220 You have the entire criminal process where a person is held to be actually guilty of a certain crime.

00:08:54.420 And of course, the difference of these two things is astronomical. So, to make a long story short,

00:09:00.200 the court invented an entire doctrine where it can tell the prime minister, and imagine this in your

00:09:05.360 own country, wherever you're listening from, it can tell the prime minister or the president

00:09:08.380 who they can appoint to their cabinet, who they have to fire from their cabinet, and when,

00:09:15.280 without the slimmest basis in statutory law. And I'm saying that because we're not talking about

00:09:20.300 a situation where it says, you know, you can only be a cabinet minister if seven years have elapsed

00:09:24.880 since you were chief of staff or something like that. And we're not talking about these bright

00:09:27.460 line technical rules. We're talking about a pure judicial discretion, just to say, we think your

00:09:34.280 appointment to the cabinet, right? And again, imagine your favorite president, your favorite

00:09:38.220 prime minister in whatever country you're listening in, and they just appoint their cabinet,

00:09:41.260 they appoint their minister of treasury and minister of commerce or whatever it is.

00:09:45.080 And the court simply comes along and says, your appointment is unreasonable, and therefore you

00:09:49.800 have to fire that person. And this is not a theoretical issue. This has been employed by the

00:09:55.500 court dozens of times over the past few decades, where it has either compelled the government,

00:10:01.920 the prime minister to fire certain ministers, or has blocked their hiring. So this is one,

00:10:07.460 I think, pretty egregious example.

00:10:09.020 Okay, so let's do, that's, if I can interject for this first example.

00:10:12.080 Yeah, so if, from my understanding of the American system, so you've got three branches,

00:10:19.160 legislative, judicial, executive, the point is that these check on each other. Your case is saying,

00:10:26.020 I just violated that tenet, because the judicial is infringing on the executive. Is that,

00:10:31.880 did I just summarize that correctly?

00:10:33.720 Absolutely. You know, I'll say that there's two, really quickly, there's two elements to that.

00:10:37.420 I mean, one is just the law. One is just completely ignoring what the law says is or does.

00:10:40.960 And two is absolutely yes, what you're describing, meaning it is literally the court, you know,

00:10:47.160 intervening in the highest level of what it means to do executive government and just telling

00:10:51.940 executive government who to hire, who to fire, and what to do in that sense.

00:10:56.000 Okay, number two, and maybe I might slightly impress you as a non-lawyer.

00:11:00.400 Sure. We hear in the American system that there are sort of two ways by which justices interact

00:11:08.120 with the law. One is sort of, it's kind of a holy thing that I abide to. The other one,

00:11:15.660 it's more interpretivist, more activist. So in the case you're describing, in a sense, it's way more

00:11:22.180 than being an activist justice. I'm literally, I mean, I'm, I'm being an activist on steroids.

00:11:29.460 It's, it's, it's the, it is the complete and utter abandonment of law in the sense that we're

00:11:36.200 familiar with in a way I think that would be rejected even by the activists in the United States

00:11:41.900 or in Canada or in other Western countries. And I think your, your question of, I mean,

00:11:45.700 your point about interpretation, if you'll allow me this quick digression,

00:11:48.000 is actually a really good one because one of the first things the court did, one of its first big

00:11:52.980 moves in the early 1980s, was that the court invented a form of interpretation. And this is

00:11:58.340 critical because this is what judges do, right? It invented a method of interpretation called

00:12:04.200 objective purposive interpretation. Now you might be familiar with what Voltaire said about the Holy

00:12:09.580 Roman Empire, that it was neither holy nor Roman nor an empire. So objective purpose

00:12:14.080 interpretation, which today is the prevailing theory of interpretation on the Israeli Supreme

00:12:18.640 Court is neither objective nor purposive nor interpretation. Now I won't get too much into

00:12:22.740 the weeds here of, you know, legal theory and interpretive theory, but what I'll say is the

00:12:26.860 court simply said that every law needs to be interpreted according to its objective purpose.

00:12:32.220 And when the court says objective, they mean, and this is explicit, this is saying the quiet part out

00:12:36.920 loud. The court says objective purpose means the purpose that a law ought to have, the purpose that

00:12:44.340 a law should have in a democracy. And this can include purposes at the highest level of abstractions,

00:12:50.420 right? Justice, human rights, you know, abstract morality, whatever it is. And the law can be applied,

00:12:57.000 I wouldn't even call it interpretation, a law can be applied in direct contravenance and direct

00:13:02.980 violation of its actual text, of its actual purpose, meaning of the stated purpose for which it was

00:13:09.400 legislated and enacted by the legislature and by the people that voted for it. So this is, I mean,

00:13:14.880 this is just a really useful opportunity to mention that because this is key to what the court has done

00:13:19.560 over the past 40 years. Got it. Got you. Okay. You were going to say a second case and then we'll come

00:13:24.420 back. Yes. Case two. So, so again, this is kind of a little bit broad, but to put it very, very simply,

00:13:28.880 Israel doesn't have a constitution and it has nothing approaching a constitution, nothing remotely

00:13:33.680 similar to a constitution. Oh, I saw you, by the way, forgive me for interrupting. You sent me a

00:13:38.120 clip where you, you polled the people at how many people think there is a constitution. And I have to

00:13:45.580 say, I think if I were in that audience, I probably would have put up my hand and said, oh yeah,

00:13:49.300 surely there is a constitution. So why isn't there before you go on? So this is actually a great,

00:13:54.540 you know, this is such an important issue. And one of the reasons I wrote the book, but funny

00:13:58.720 enough, I was actually surprised because in that room, in that audience, this was at the Israeli

00:14:02.280 American council summit in Florida, not so long ago, there were a few hundred people in the room

00:14:08.100 and almost no one raised their hands to say that they thought Israel had a constitution. So that was

00:14:12.640 a little heartening to me. But, but I think they're certainly probably much more informed than,

00:14:17.360 than other, you know, just casual observers of Israeli politics and government.

00:14:21.260 Um, the why is kind of a longer historical question, but as a factual matter, which I'm

00:14:26.780 happy to get into, if you'd like to, you know, I wrote, I wrote a significant part of the book,

00:14:29.980 uh, talks about that, but just as a factual observation, Israel does not have a constitution.

00:14:35.900 It just doesn't have that document that we recognize as a constitution with a beginning

00:14:39.940 and an end, these different parts that have all these different aspects. And perhaps more

00:14:44.120 importantly, they don't have that thing, which was enacted as a constitution per se, you know,

00:14:48.440 that sort of conscious deliberate action where people come together by a large majority and,

00:14:53.040 and they say, we're going to enact some kind of super law, right? Some kind of supreme law of the

00:14:57.660 land, which stands over ordinary legislation, which actually constrains the legislature, et cetera,

00:15:02.220 et cetera. So this never happened in Israel and that's, uh, um, you know, uncontested. Nonetheless,

00:15:07.460 in 1995, the Israeli Supreme court came along and said, you know what?

00:15:11.260 We're unhappy with the Israeli electorate and population for not coming, you know, for not

00:15:17.180 getting a constitution together. And therefore from now on, we are going to simply pretend that

00:15:21.920 Israel does have a constitution. And the court simply proceeds with pretending that a bunch of

00:15:26.340 laws, some historical laws, which were absolutely not a constitution and were never even meant to

00:15:30.380 be so, and were sort of explicitly known not to be so, which the Supreme court had ruled that they

00:15:35.220 were not so, et cetera. The court came along in 1995 and said, from now on, we're going to treat,

00:15:40.520 uh, uh, um, uh, Israel as a constitutional country. And on that basis, we're going to strike down laws.

00:15:47.900 So is that 90, 1995 moment where they said, let's pretend there is a constitution. Is that the catalyst

00:15:57.100 of what the rest of your book is about? Is that what started the, the, the rogue justice?

00:16:01.760 Uh, it's a wonderful question. I really actually make the, I almost make the opposite point in the

00:16:06.780 book that, um, even if all the cons, there's a really good question in, in 1995, there was a poll

00:16:13.700 among, um, law professors all across the Western world, uh, about which country had the most activist

00:16:19.500 court and Israel won. Israel was number one and the United States was number two at the time.

00:16:25.000 And this was a poll amongst legal scholars all across the world. And this was before the court had

00:16:31.480 ruled on this issue before the court had unilaterally and outrageously declared that

00:16:36.680 Israel had a constitution and started striking down laws. And I make that point to say the whole

00:16:41.280 constitutional issue is really important. And obviously that's a really, uh, significant power

00:16:45.360 that a court wields to strike down primary legislation, but I don't want us to pretend that

00:16:50.200 if all of this were fixed, then Israel wouldn't have legal troubles. And I really, I should really

00:16:54.140 say about the first half of the book is everything that has happened and that it still happens,

00:16:59.220 which has nothing to do with these sort of, you know, you know, uh, conventional or standard

00:17:04.460 constitutional questions about, you know, does Israel have a constitution and, uh, how does the

00:17:08.940 power, how does the court strike down legislation, et cetera. So critically the, the, the asterisk

00:17:13.280 that I'll give, and I can say some specific cases if you'd like me to, but since 1995, the court has

00:17:17.820 struck down dozens of laws. And these are, these are some of the most contentious, disputed, right?

00:17:24.540 Bitterly, uh, um, argued issues at the heart of Israeli society. Uh, um, and the court has

00:17:30.560 simply gone, gone ahead and invalidated these laws without, not only without the slightest

00:17:34.360 legal basis, you know, on its own terms, like without any sort of statutory, uh, uh, textual

00:17:39.600 basis, but also without the basis, uh, of the very notion of a constitution. And I will emphasize

00:17:45.200 in one last sentence, this point, there is no other country in the world like that. Meaning

00:17:50.700 there are countries in, in the world where there is no constitution or where courts do

00:17:55.400 not have the power to strike down laws. And that includes the United Kingdom, that includes

00:17:59.060 the New Zealand, that includes the Netherlands and Switzerland where Supreme, they do have

00:18:03.080 a constitution, but the Supreme court cannot strike down laws. Then you have countries like

00:18:06.500 Canada, the U S and others where you have a constitution. And of course, many European

00:18:10.480 countries are where you have a constitution and a court can strike down legislation. There's

00:18:15.180 only one country in the world where the Supreme court can strike down legislation, essentially

00:18:19.760 a power that it has granted to itself without the benefit of a, uh, um, conventional constitution

00:18:25.940 as we know it.

00:18:27.500 You're giving fodder to the Jew haters. We, we have enough reasons for people to hate us.

00:18:34.640 Don't, don't add plus one to it. Okay. So what's your second case? Was the, was that

00:18:39.620 encapsulated?

00:18:40.620 Yes. I mean, I can give a, just a random example, just, you know, one of the many laws.

00:18:44.800 Okay. No, that's fine.

00:18:46.740 Okay. Yeah.

00:18:47.340 Oh, sorry, sorry. I didn't mean to interrupt you, but, uh, okay. So

00:18:49.700 let's, uh, just mechanic stuff, nine U S justices in the U S Supreme court. How many

00:18:56.840 in Israel?

00:18:58.440 Um, so Israel has 15 Supreme court justices, but it is, I think profoundly different from

00:19:04.460 the U S Supreme court, a variety of ways. Uh, and just to, to mention the structural element

00:19:11.220 here, because I think also some of your writing has addressed these sort of institutional elements

00:19:15.480 and how they shape these, these different, uh, you know, processes. Um, in Israel, the Supreme

00:19:19.620 court, despite its name is really the court of first instance for the most important constitutional

00:19:26.680 or administrative, you know, challenges to government action. So petitions originate at the

00:19:32.640 Supreme court, the Supreme court, instead of it being the final stop, it's the first stop.

00:19:37.920 However, absolutely correct. However, it is also the final stop. So as high court of justice,

00:19:45.860 the Supreme, uh, the Supreme court has original jurisdiction to hear these challenges to laws,

00:19:51.160 most important issues, right? In Israeli society, et cetera. Um, but then there's no appellate

00:19:56.500 process. There's nothing above the court. So everything begins and ends with the Supreme court.

00:20:02.280 And, you know, lawyers will be familiar. There are many benefits to having cases wind their way

00:20:08.260 throughout the legal system, wind their way throughout courts. We, in, in legalese, we call

00:20:12.120 it percolation where courses take some time to sort of develop and mature and ripen, uh, through the,

00:20:17.680 through different, um, uh, tribunals and judicial tiers. So that's one element, um, which is worth

00:20:23.340 noting. Another is that the court, the Supreme court is an appellate, uh, uh, tier. So they do hear

00:20:28.240 appeals, but they also hear appeals as of right, meaning it's not discretionary like you have in

00:20:34.100 the U S Supreme court. Um, the, the, the, the Israeli Supreme court will simply automatically

00:20:39.460 hear appeals to many, many, many of Israel's most important cases that just originate in one court

00:20:45.060 below with the district court level. Who are they appointed by the prime minister? I love your

00:20:52.060 question. You're asking all the right questions, uh, uh, God, because the, and these are the kind of

00:20:56.020 where, where I think people have a hard time, uh, um, or I should put it differently. The information

00:21:01.820 is not so easily accessible. So this is why I think it's so, it's so important. I mean, and I

00:21:05.400 should emphasize again, right, the details here matter a lot. And I really urge you to read the

00:21:08.880 book, but, um, amazingly in Israel, Supreme court justices are appointed by a nine member committee

00:21:16.720 on which not only do the Supreme court justices, uh, uh, sit, meaning the Supreme court justices

00:21:25.140 are involved with the selection of their own successors and colleagues, but more importantly,

00:21:30.940 they have a veto power. So the, so the three Supreme court justices sitting on the committee

00:21:36.320 can actually block the appointment of any Supreme court justice. Uh, even if there's, you know,

00:21:42.400 wall to wall consensus at the, at the elected and political branches. So even if the Knesset,

00:21:47.880 that's the Israeli parliament, the Israeli parliament and legislature unanimously wants to appoint

00:21:53.040 a particular candidate, uh, uh, uh, the Israeli Supreme court, the justices themselves can block

00:21:58.960 any potential candidate and they have done so to devastating effect. Um, they've done so. And this

00:22:03.780 is a way that they've entrenched their power and they've managed to block out a significant, uh,

00:22:09.760 critiques of their jurisprudence. And is it a lifelong appointment?

00:22:15.320 Appointments are until the age of 70. So there's mandatory retirement at the age of 70 for justices.

00:22:19.780 So from your perspective, is that at least a saving grace of the Israeli system? Or do you believe

00:22:27.220 as per the American system, you could be 97 and you know, like no longer recognize your spouse,

00:22:33.400 but you're still sitting on the court. Right. We're not talking about anyone in specific particular,

00:22:37.160 right? Exactly. No, not, not to mention anyone specific. Um, I think the, the honest answer is

00:22:44.680 that there are genuine to that specific question of life tenure versus, you know, mandatory retirement

00:22:49.580 age. There are genuine pros and cons to each approach. And I'll give you something which is

00:22:54.060 not so intuitive, but I think you'll like this. This is kind of up your alley because of the mandatory

00:22:58.980 retirement age in Israel, you can predict, right? Right. Barring, you know, tragedies or whatever it

00:23:06.640 is, or people, you know, voluntarily resigning, you can predict the exact timeline of when seats will

00:23:13.880 become available on the Supreme court. And that has a variety of effects on the entire process on

00:23:19.780 the way that, you know, other judges are appointed on the way that people plan their careers. If they

00:23:23.600 want to make a, you know, if they want to make a move for the Supreme court, um, maybe more importantly,

00:23:28.400 this defines who will be Supreme court, uh, sorry, chief justice of the Supreme court, because today,

00:23:34.380 the way it works that I won't get into this, but the way, the way today, the way it works is that

00:23:37.420 the chief justice, uh, is selected based on seniority. So who's been on the Supreme court the

00:23:42.360 longest. So if you, if you go right now to the Wikipedia page, at least in Hebrew of the Israeli

00:23:47.140 Supreme court, it will tell you who the Supreme court justice is supposed to be for the next 30 years.

00:23:52.960 Right. Because at least in theory, we know exactly when each one, right, resigns or sorry. Yeah.

00:23:58.600 Right. When each one retires, we know exactly what the seniority, what the, uh, right, uh,

00:24:03.320 how much time each one has spent on the bench at that time. So we can know exactly who the chief

00:24:07.160 justice will be. And this causes a whole variety of weird sort of power dynamics and sort of, you

00:24:12.020 know, the different relationships on the court, the relationships off the court, right? Imagine

00:24:15.580 you're a justice on the court and you know, the 20 years from now, you're actually supposed to be

00:24:19.740 chief justice. And imagine how that affects the different, I mean, so there's a variety of issues

00:24:22.860 here, which are not immediately obvious. And they're really getting to these sort of weird game theory

00:24:26.760 situations. Have, have any of the things that, you know, you, you write against in the book,

00:24:34.460 have they, have they either been changed or look promising to change, or it really is sort of

00:24:42.020 bureaucratic inertia never to be moved an inch? Uh, this is, uh, again, such a wonderful question

00:24:48.960 because, you know, I say that the book is not, I don't know if you're familiar with the 2023,

00:24:53.240 you know, judicial reforms and the counter protests. And I don't know if this means much

00:24:57.460 to you. Obviously this was sort of a big headline, right? I like to say on October 6th,

00:25:01.980 uh, 2023, this was the biggest issue, not just in Israel, but it was being covered pretty,

00:25:06.260 you know, uh, abroad as well. So in 2023, there was a, there was a slew of proposed reforms to the

00:25:13.480 judiciary, including some of these elements like judicial selection, um, like the unreasonableness,

00:25:18.940 right, uh, standard, which we mentioned earlier and the judicial impeachment, that means judicial,

00:25:24.080 right, barring of a cabinet members, et cetera. Um, so far it would seem that the, I mean, this is

00:25:30.680 getting to the weeds, but the court has struck down some of those changes as well. Meaning the

00:25:34.940 very efforts to change the, to directly change the court's power by a significant majority in the

00:25:41.320 Knesset and the, in the Israeli parliament has been blocked by the court itself. So we're in a sort of

00:25:46.300 weird, um, uh, not a catch 22, but we're in a weird circle where attempts to curb the court's

00:25:52.400 power are themselves blocked by the court's excessive power. Um, I will, I want to add one

00:25:59.580 more sentence, which is not directly related, but it has to do with something you said earlier,

00:26:03.340 uh, which is sort of adding, adding ammunition to the Israel haters and the, uh, and the, uh,

00:26:08.020 right. And the critics of Israel is that, is it okay if I address that just for one,

00:26:11.060 please. First of all, I think, uh, you know, it is a good point and I've been sort of told before,

00:26:15.440 this is one of the reasons that I make my disclaimer in Israel really is a, uh, an extraordinary,

00:26:19.220 phenomenal place. Um, the first sort of irony about that is that you have then people, especially

00:26:25.720 on the left in Israel, the judicial supremacists in Israel have been the first to decry the end of

00:26:32.620 Israeli democracy and to say that Israel is a, you know, authoritarian dictatorship the moment anyone

00:26:38.240 tries to change any of this, right? So the moment anyone tries to suggest that, oh, maybe the judges

00:26:43.140 need to have less power, or maybe some of this has been, you know, not really defensible or

00:26:46.840 legitimate. And we need to roll this back a little bit. They're the first ones to sort of get on the

00:26:50.740 world stage and they'll say anywhere they can, especially in English, especially to a foreign

00:26:54.200 audience, Israel is about to become a theocracy, a dictatorship. Israel is a, uh, you know, a pace

00:26:59.700 away from being Iran. If, right. If politicians are more involved with the selection of justices or

00:27:05.460 right. Something outrageous like that. So that's always a little bit ironic to me,

00:27:08.660 right. That the other side sort of does this very, very freely and really the drop of a hat.

00:27:12.800 Um, but more importantly, I think that the, the broad vision is Israel is a democracy, uh, and it,

00:27:19.100 it is a functioning democracy and it is to, to, uh, most, uh, uh, in most senses still does function

00:27:24.500 as a, as a democracy, but it does have this very egregious significant flaw in its democratic character.

00:27:31.320 And that flaw is not because it has, uh, you know, totalitarian, uh, uh, you know, totalitarian

00:27:38.800 inclined, um, politicians. And it's not because the public don't have democratic intuitions. It's

00:27:44.700 because you have a judiciary, uh, and, and, and proxies in a judicial supremacist sort of legal elite,

00:27:51.120 which has completely abandoned this idea of majoritarian, uh, democratic self-rule in a democratic

00:27:59.640 country. And this idea that the court is there to apply the law and not to impose its views on the

00:28:04.660 rest of society. So this is a democratic, this is a flaw in Israel's democracy, but it shouldn't be

00:28:08.720 taken as, you know, this is some kind of, you know, Israel is a irredeemably, irredeemably and

00:28:14.220 irretrievably, uh, terrible. Now you, this book is, this is the, the first edition. This one is in

00:28:20.240 English, maybe with the hope of translating in Hebrew or is it already existing in Hebrew and you

00:28:25.440 translate it in English? Absolutely. Um, but which one is it? At the moment, it's only in English

00:28:32.080 and it absolutely will be translated into Hebrew. So why English first, if you're trying to reach the,

00:28:37.520 uh, the Israeli? That's such a good question. I think there are two and a half answers. The last

00:28:42.840 half answer is that when I, uh, was going to join the Georgetown center for the constitution as a fellow,

00:28:48.880 the professor I was working with there, professor Randy Barnett said to me,

00:28:52.580 why don't you write a book on the Israeli legal system? And I said, sure. And I think it was,

00:28:56.780 we never really even raised it, but it seemed kind of obvious that if I'm at Georgetown University

00:29:00.000 working on a major research project, it seemed to make sense that it would be in English. It was

00:29:03.520 also based on an article that I had written in English, um, about the Israeli legal system at

00:29:07.180 the time. So that's the half, that's the half at the end, but that's not, I think that's not the

00:29:10.880 real reason. The, the, the true real reasons that at the moment the book is in English and it will,

00:29:15.220 I think later on be in Hebrew is two. One is that despite the fact that I think that many Israelis

00:29:21.100 don't sufficiently understand these issues, or at least it's not sort of presented, there's nowhere

00:29:25.660 that presents these issues to them in a sort of analytic and analytical, rigorous, serious way.

00:29:31.980 Um, Israelis are generally both, you know, have some baseline level of familiarity with these issues

00:29:37.740 and they have, um, significant resources to educate themselves, right? In Israel, in Hebrew.

00:29:45.500 And that is simply not the case in English or in any, any other foreign language. And we're,

00:29:50.380 one of the things that I noticed, one of the reasons that I wrote this book is because you

00:29:54.380 had this incredible gap between how important this issue is for Israel and how contentious it is for

00:30:01.660 Israelis. Um, while at the same time you had how little people outside understood it and how few

00:30:07.580 resources anybody had. You mean, meaning if anybody wanted to just get a grasp of, okay,

00:30:11.740 what's this argument about? What are people protesting about? What are the, right, what are

00:30:15.900 the reform proposals about? What do people want to change? And there's simply nothing out there

00:30:19.500 which could offer that to people in the West and especially English speakers. And that is something

00:30:23.580 that I wanted to provide to people. And this is, I should, this ties into a key point that I make

00:30:28.940 in the introduction is that I think people don't realize or recognize how insulated Israel is.

00:30:35.900 When I say insulated, I don't mean BDS and that sort of isolation or whatever. That's a whole

00:30:40.700 different issue. What I mean is all democratic countries have peers. They have peers, either

00:30:47.740 territorial or, and I mean, I mean, democratic peers, they have peers who are either territorial

00:30:52.140 and geographic or cultural and sort of, you know, ethno cultural or whatever it is, or linguistic.

00:30:58.620 Right. And so there's really, really almost no democratic country in the world, which doesn't

00:31:03.020 have some kind of very easy, accessible way to communicate with other democracies, to read the

00:31:09.020 rulings, to read their laws, to read the headlines in the news, to read their books, uh, to get on

00:31:14.220 a webinar and listen to what people are saying or whatever it is. And for Israel, there's none of

00:31:17.580 that. Israel has no democratic neighbors, obviously it has no, there's no sister country in the world,

00:31:22.940 which is sort of a Jewish state or a Hebrew speaking state. Um, and I think that's really

00:31:26.620 significant. And what that means is that it's very hard for people to look inwards to really understand

00:31:32.060 what's happening inside Israel, certainly for, especially for domestic issues. And it's very hard for

00:31:36.460 people, for Israelis to look outwards and to understand what's happening in the rest, um,

00:31:40.940 of the world. So that's a very long answer. I'll just give my second reason, which I think is

00:31:44.140 important. The second reason this book is in English is because this book would have to be

00:31:49.100 a very different issue in Israel, uh, very, sorry, very different book in Israel. And this might relate

00:31:53.500 to the parasitic mind, which we can talk about. I was going to ask you, uh, you promised links to

00:31:57.820 parasitic empathy. So we'll get to that. Exactly. So I think this is our good segue. This is our perfect

00:32:03.340 segue actually. So writing for a foreign audience, writing for a Western audience,

00:32:09.020 there are a great many things which I don't need to explain why they are bad. Meaning I can present

00:32:15.100 to you a certain ruling in the court's own words, and I can present to you a certain doctrine that

00:32:19.900 the court has developed. And I can, you know, in some, in some cursory way, say that what this

00:32:24.540 violates or why this is a problem or how this doesn't align with other countries. But you as a

00:32:28.620 Westerner intuitively understand because you've been brought up on certain ideals of separation

00:32:33.100 of powers, democratic self-government, rule of law, et cetera, you understand why this is a problem.

00:32:37.580 And here's a great example, right? If I say to you, the court tells the prime minister who to fire and

00:32:42.460 who they can't appoint as a cabinet member, as a minister, right? As the head of a department,

00:32:46.700 without the most remote textual statutory basis, just the court just says, because I don't agree.

00:32:52.620 And the court literally says this, anyone in a Western country intuitively immediately

00:32:57.100 understands this is an egregious violation of separation of powers, among others, right?

00:33:02.860 Among a host of other problems. And these issues are not as intuitively obvious to an Israeli. So

00:33:09.900 for an Israeli book, there's a great deal more that I'd have to explain. I'd really have to educate a

00:33:15.020 lot of the readers as to what happens in other countries, as to the theoretical foundations of a

00:33:22.140 great deal of democratic thought and of liberal thought and self-government, et cetera, something

00:33:28.220 which is way less obvious to an Israeli audience. And now, if you'd like me to, I can sort of give

00:33:33.180 the connection here, which I think is-

00:33:34.940 I'm all ears.

00:33:36.060 Okay. So, I mean, very briefly, and I really want to hear what you think of this, but

00:33:39.980 I think Israel is a fascinating case study from the perspective of the parasitic mind, because you

00:33:45.660 really have this ideology of judicial supremacy, which has managed to penetrate massive parts of

00:33:53.500 Israeli society, especially in the sort of legal establishment and the Israeli parts of the Israeli

00:33:58.540 elite, et cetera. And this view says, in a nutshell, that, you know, democracy means, or, you know,

00:34:06.700 Western liberal democracy means being, giving final say, or having final say for a group of unelected

00:34:17.260 former lawyers in gowns. And this is the fundamental premise of these people, and they say it. I mean,

00:34:22.940 they say that, you know, this is not a secret. They say this, you know, for us, democracy means

00:34:26.940 that we need juristocratic gatekeepers who will have final say and who will tell the electorate,

00:34:34.140 it doesn't matter what the majority is or what the legal basis is or anything like that.

00:34:37.420 These are sort of shamanic, a shamanic priestly caste who knows what's right and who will tell

00:34:44.460 society at large in the electorate how to act, what is right and wrong, what are, you know,

00:34:49.820 legitimate policies and what are not. And this is, you know, the process of the way that this ideology

00:34:56.700 has really spread. And it's really gradual. And you've sort of seen the way it sort of slowly

00:35:01.580 took hold in different places. The way this has spread throughout Israeli society,

00:35:06.220 and today really constitutes the moral baseline for a very large political sociological group in

00:35:14.060 Israel. And I think there's, there's something there to be, there's some parallel there.

00:35:17.820 So I, as you're describing this, what came to mind, and you'll tell me if the analogy is a correct

00:35:23.980 one, it reminds me of Plato's position about philosopher kings, isn't it?

00:35:29.340 Absolutely.

00:35:29.740 Right. I mean, democracy is too important to be ruled by the idiots. That's why us,

00:35:35.820 the smart philosophers, yes, of course, we believe in democracy, but democracy as ruled by the

00:35:43.100 appropriately smart people.

00:35:44.860 Correct. Absolutely. And there's some enormous ironies here. First is that, you know,

00:35:51.980 that's sort of exactly the point that, and this is something that Israelis, I think many Israelis,

00:35:55.900 unfortunately don't get, that this dilemma, or this question has been essentially resolved in

00:36:05.100 democratic theory, right? Sort of democratic, modern democratic theory says, or modern democratic

00:36:10.620 theory rejects the idea of philosopher kings, or enlightened despots. After all the Aristotelian

00:36:16.140 sort of questions about this, et cetera, meaning ultimately we come down on, no,

00:36:19.500 the notion of philosopher kings, the notion of unelected guardians who will have final say,

00:36:26.220 is not something which we can reconcile with democracy and liberty and self-rule, et cetera.

00:36:31.100 So, and in Israel, you know, the Israeli judicial supremacists, including the Supreme Court,

00:36:36.780 have essentially adopted a view of Aristotelian, sorry, not Aristotelian, platonic guardianship.

00:36:47.820 There's a wonderful irony, it's a little tidbit, but there's a very senior Israeli politician

00:36:52.300 who had just become Minister of Justice. This is, I think, I think in 2021, maybe,

00:36:57.820 from the left, or from the center left, and he said, he quoted the question of who will guard the

00:37:03.660 guardians, right? And I'm sure you're familiar with what that means, right? Who will guard the guardians,

00:37:08.140 right? If someone has power, who will supervise or oversee their exercise of their power, right? Whoever

00:37:13.740 wields ultimate power, who will supervise them? Of course, in a democracy, the answer is a demos,

00:37:18.620 meaning, ultimately, you do not have an alternative method of supervision beyond the demos. If you're

00:37:24.380 supervising the demos, then you're no longer a democracy. But this politician is a very senior

00:37:29.100 politician, and he's a judicial supremacist. Upon becoming a Minister of Justice, he said,

00:37:34.220 who will guard the guardians? I'll tell you who. We will. I will. I will guard the guardians. But what

00:37:40.540 he meant is, I will protect the judges. This is what he was saying. He was saying,

00:37:44.700 who will guard the guardians? I will. And he didn't even understand the irony that he was

00:37:49.980 completely distorting the meaning of that sentence and saying, I will protect the judges. I will guard

00:37:54.780 the guardians. I will protect the judges from, you know, intervention by the law, right? Or by

00:38:02.700 politicians, God forbid, telling judges what the law is and how they should apply it, etc. So there's

00:38:09.100 certainly some, there's certainly some ironic uses there. So if you were to now guess of people of

00:38:17.340 all political stripes in Israel, who are going to receive a copy of your book, are you able to

00:38:25.740 predict whether you're, you'd be more likely to be invited to cool kids parties on the left versus the

00:38:32.700 right? Or would everybody be equally upset by you because you're upsetting the noble status quo?

00:38:43.420 No, I don't think everyone will be upset with me in the sense that I think, you know, this book

00:38:48.700 clearly aligns with some more right wing critiques of the court, certainly in Israel. I think also

00:38:54.620 elsewhere, I should say, this is a side note. I don't know, have you read A Conflict of Visions by

00:38:59.740 Thomas Sowell? Thomas Sowell is my man. I basically spend every day saying something

00:39:04.700 laudable about him, but yes, go ahead. So this shows my ignorance and sufficiently knowing.

00:39:10.220 But, you know, I always liked that, you know, Thomas Sowell, I think, identified that there are

00:39:17.980 reasons why certain political camps gravitate towards more judicial power or excessive judicial

00:39:23.740 power and why certain political camps gravitate away from it. So putting that aside, and so I think

00:39:28.940 there are genuine reasons why the left tends to sympathize more with judicial supremacy or

00:39:34.540 judicial supremacists or activism or whatever you want to call it, and the right tend to sort of

00:39:38.460 resist it a little bit more. But putting that aside, I don't think that's the issue. First of all,

00:39:42.460 I think my book will be attractive to readers on both sides of the aisle, so to speak. And I think

00:39:47.580 I'll be invited to all the parties, also because I'm a very friendly guy and I get along with everybody.

00:39:52.380 But also, you know, the way the way I write the book, even though it's highly critical,

00:39:59.420 and it lays out an argument, and I'm unabashed about that, this is not a neutral discussion of

00:40:03.580 sort of, well, you know, here are the different arguments on all sides. No, this is the objection

00:40:07.900 to the situation. However, it is not a polemical rant by Yonatan Green, you know, it's not a 600 page

00:40:16.780 op-ed by Yonatan Green saying why all these things are bad. The vast majority of the book is an analytical

00:40:22.140 presentation of the issues in the court's own words, for example, in the words of the court's

00:40:27.740 critics, including, you know, Israel's top legal scholars, legal scholars from elsewhere in the

00:40:33.820 world who have criticized these things. So I think it is presented in a way which will be

00:40:38.700 understandable, but also acceptable to a lot of people, even if they disagree with the bottom line,

00:40:42.940 or even if their intuition sort of disagrees. And finally, I should say that people who are on the

00:40:47.180 other side and much more sympathetic to the Supreme Court, I think they can still appreciate the book as

00:40:52.140 an explication of the other side's view. Meaning after having read this book, they can say,

00:40:57.580 okay, now I get where the other side is coming from. Maybe, you know, maybe they're wrong, maybe

00:41:02.380 there are justifications here which Yonatan is ignoring, but there are, you know, issues which

00:41:07.420 the other side, there's some merit to the objector's argument.

00:41:12.300 Are there some templates within how you present your arguments that would allow law students or

00:41:22.540 legal scholars from any country to say, I'd like to read this book, not so much because I care about

00:41:29.740 the weeds of case number 473 that Yonatan is bringing, but because he's using a methodology that I can

00:41:38.460 use to highlight to my law year three students.

00:41:42.780 So I would like to say yes, but don't take it for me in the sense that I'll say two things. One is when

00:41:48.540 I address these different issues, take judicial selection or take, right, statutory interpretation

00:41:53.820 or standing and justiciability, which are sort of threshold requirements in courts, et cetera,

00:41:57.580 or constitutional law. I tried to give some baseline presentation of the issue or some of the

00:42:03.020 the theoretical aspects, some of the right, you know, broader, broader aspects. But I'm saying,

00:42:09.260 don't take it for me because I think some of the reviews of the books, including by some leading

00:42:14.700 legal scholars, have made exactly this point that they think that readers can benefit from the book,

00:42:21.260 even if they're not lawyers. But more specifically, even if they're not particularly that interested in

00:42:26.620 Israeli jurisprudence or in Israeli current affairs, meaning there's, I believe, or I hope that there

00:42:32.860 is, you know, much to learn, even for someone who just generally wants to understand these issues

00:42:37.660 in a broader way and not just in the specific context of Israel. I did want to, I did want to,

00:42:43.820 I guess, add one more quick response to your question earlier about sort of which parties will

00:42:48.540 I be invited to or who will I be shunned from? This is a really important, I think, question,

00:42:54.940 or really important element of all of this, which is that in Israel, and I think this is such a key

00:43:00.060 lesson for other countries as well. In Israel, the court's judicial supremacy or judicial supremacism

00:43:07.500 has created clear winners and losers. There are clear groups in society and there's a clear political

00:43:15.340 camp, which is the beneficiary of the court's judicial supremacy. And in this sense, this is one of the

00:43:21.500 reasons why you have, in Israel, it's some parts of the Israeli political left, which is so bothered

00:43:29.900 or so outraged by any attempt to change anything within the court's power, to curb the court's power

00:43:36.700 in any way. Because it's not about principled issues, because I think the principled arguments are

00:43:41.820 clearly on my side or on the side of the objectors of the court. But in terms of the benefits which

00:43:47.260 have been given to these parties, those are very, very hard to take away. It's very, very hard to

00:43:51.100 tell somebody, well, you've been given this sort of free access to lawmaking because all you have

00:43:56.140 to do is petition the court. And now you get your way. You don't have to compromise. You don't have

00:44:00.060 to negotiate. You don't have to build coalitions. You don't have to win elections. And you're still

00:44:03.980 going to get your policy outcomes. And now we're saying to these people, well, actually,

00:44:07.980 if we succeed in curbing the court's power, you will no longer have that benefit, including some of the

00:44:13.100 policy outcomes, which you consider less favorable. So in that sense, there are certainly some parties

00:44:20.540 to which I will not be invited.

00:44:23.260 I'm going to link my question to my stuff on parasitic mind and suicidal empathy. And then I

00:44:29.580 want to link it, as I promised, off air to some evolutionary psychology stuff. And then we could wrap it up.

00:44:34.940 So the most recent addition to the US Supreme Court was chosen because she has lady parts of color,

00:44:46.060 which would be a manifestation of certainly parasitic thinking, right? Diversity, inclusion,

00:44:50.700 equity, also of suicidal empathy. We need to be kind to marginalized people. Do you see a similar

00:44:59.420 reflex or instantiation when choosing whomever's going to go on the court? Or is the cabal so,

00:45:07.180 you know, a star chambery in that this kind of diversity, you know, are we getting the Falasha

00:45:14.300 Ethiopian Jewish woman to get on the court because we want to be diverse or that reflex doesn't exist

00:45:22.060 within the dynamics of the Israeli Supreme Court?

00:45:25.020 Um, I'll say two things. One is that, at least at the judicial selection level,

00:45:32.460 for better and for worse, there's some elements of, we'll call it sectorial representation,

00:45:38.780 in the sense that, you know, you'll have different voices that say, well,

00:45:41.660 there aren't enough people from these backgrounds, then there aren't enough people from those

00:45:44.780 backgrounds. And there aren't enough people with, you know, it's not quite skin color,

00:45:47.900 but it might be right, whether it's an Arab Supreme Court justice or a woman or someone who's orthodox

00:45:54.780 or ultra-orthodox.

00:45:55.580 So there's a lot of Mizrahi versus Ashkenazi or something.

00:45:59.020 Yes, absolutely, versus Ashkenazi. So, right, whether you're from sort of Middle Eastern and

00:46:03.180 North African descent, or whether you're from European descent. So, and that absolutely certainly

00:46:09.420 exists. And I say for better or for worse, because that does sometimes come up, I think,

00:46:13.900 in a way, it's sort of less dominant in the conversation in a good way, and I'll explain

00:46:18.700 why in a moment, but also in a bad way. What really matters to the court is getting judicial

00:46:26.220 supremacists on the court. And in this sense, the court is willing either to be completely,

00:46:33.340 you know, to completely diversify its ranks, or to completely block any diversity on its ranks,

00:46:40.140 based solely on whether these people are judicial supremacists, and whether they will be critical

00:46:45.660 of the court's overarching theories, right? And so you have Ruth Gavizon, who was one of Israel's

00:46:51.420 who passed away in the summer of 2020, I think, unfortunately. Ruth Gavizon, and she's kind of the

00:46:56.940 star of one of my first chapters in the book, was one of Israel's most acclaimed law professors,

00:47:01.980 and she was a prodigy of Aharon Barak himself, who's Israel's sort of legendary chief justice,

00:47:06.540 who was the architect of judicial supremacy in Israel. And she was a law professor at Hebrew

00:47:11.580 University, she studied under HLA Hart in Oxford, and just easily one of Israel's greatest legal

00:47:16.460 minds, and she was a civil rights attorney, and she founded one of Israel's sort of civil rights,

00:47:20.220 major civil rights organizations. And she was a woman, and she was also of Mizrahi descent,

00:47:24.780 and she was blocked ruthlessly from joining the court, even though the political branches and

00:47:30.780 elected branches wanted her appointed, and tried to advance her candidacy. And she was blocked to

00:47:36.140 the court by Aharon Barak and his allies for the explicit reason that she's not part of the family,

00:47:43.420 and that she has an agenda. And what they mean by that is that she rejects the court supremacist

00:47:49.580 views. So it's sort of for better and for worse in the sense that, you know,

00:47:52.700 I think even when people do raise that issue, they're looking at the wrong thing. Meaning,

00:47:58.300 I think from the perspective of people who care about the rule of law, that it's not just that,

00:48:03.820 you know, we want diversity on the court, but it's not ethnic diversity, or gender diversity,

00:48:11.500 or whatever it is, it needs to be ideological diversity, and and jurisprudential diversity.

00:48:17.340 So I should say, fortunately, I don't think that's a major part of the conversation

00:48:19.980 in Israel right now. The flip side of that is, part of it is, is it's, it's because it's so

00:48:25.500 obvious to many people that there has to be an Arab member of the Supreme Court. Like,

00:48:30.700 it's not a question. Meaning when the, when the Arab member retires, then a new Arab member is

00:48:36.220 selected to the court. And not doing that is almost unthinkable today in Israeli, you know, societal,

00:48:41.740 you know, discourse, even on the right. So this is sort of the flip side of that is that

00:48:46.540 DI is almost a given in a way in Israeli selections. But I want, if you'll let me,

00:48:52.860 I actually want to say there's a broader element here, which we can, I'll say one word,

00:48:56.620 and then you can tell me whether we want to expand on that a little. I think suicidal empathy is a

00:49:01.420 major component of what the court does, and has done in Israel, and maybe also judicial supremacy

00:49:07.500 elsewhere in the world. Because so many of the court's rulings follow, and when I say rulings,

00:49:15.420 I mean, you know, lawless rulings, not society's decisions through legislation, which the court

00:49:21.020 simply enforces, but the court's much more ideologically heavy and ideologically saturated

00:49:27.660 value-based decisions are essential, essentially examples of suicidal empathy. So the court will

00:49:34.860 make certain risk-laden decisions for society on society's behalf, and they will reflect exactly

00:49:41.980 that, you know, we ought to care for X, and therefore we need to make certain sacrifices

00:49:47.500 on our part, sacrifices which can be ultimately catastrophic. Well, I mean, if I may toot my

00:49:55.900 forthcoming book's horn, one of the reasons why it has so resonated with people, and it's gone global,

00:50:02.140 you know, years before the book even comes out. I mean, it is coming out in May, but the reason why it

00:50:06.940 has gone so viral is precisely because it captured, I mean, I wouldn't have thought of applying the

00:50:13.660 concept of suicidal empathy to what we're talking about here, but the fact that you're able to do so

00:50:19.180 demonstrates its ubiquitous manifestations across so many settings, because most people feel as though

00:50:27.420 at the end of the day, I want to be able to stroke my hair while looking at the mirror and appreciating my

00:50:33.260 moral piety, right? And so if I can do that, you know, inshallah, the future will take care of itself.

00:50:40.380 But for me, I did the right thing by the noble migrants, or the noble felons, or the noble rapists,

00:50:47.660 right? I'm a good person because I care even about the downtrodden. So it doesn't surprise me that

00:50:54.700 in your context, we see a manifestation of suicidal empathy. Okay.

00:50:58.700 I just want to say, you know, first of all, an Israeli intellectual, Gadi Taub, you might know.

00:51:04.620 He's invited me on his show before. Okay. Yes.

00:51:07.260 He's wonderful. And he calls this, you know, narcissism or different, you know, forms of narcissism.

00:51:12.060 And I, I agree, but I, I'll add that there's a layer here, which this is for your next, next book,

00:51:16.540 maybe, or I haven't yet read suicidal empathy. And when I'm very much looking forward to reading it when

00:51:20.780 it comes out, but there's, there's this bizarre layer, which I have to add both in these really context and

00:51:26.540 the judicial context elsewhere, because what you're describing correctly as suicidal empathy,

00:51:33.020 what the courts do in Israel in a way is involuntary suicidal empathy, because it's one thing for

00:51:40.060 people to come and say, you know, we're going to make certain sacrifices, which are insane.

00:51:44.540 We're going to harm our own self-preservation in the interest of some lofty moral ideal,

00:51:48.700 et cetera, maybe fine, whatever. But in the Israeli context, and also we see this elsewhere,

00:51:53.820 we see this with the European Court of Human Rights, this is in Supreme Courts across the West,

00:51:58.060 where a court will impose, will impose certain suicidal empathy, will impose risks and costs

00:52:06.220 on society, sometimes with catastrophic results, in a way which society has never voted for,

00:52:13.180 has never, right, accepted or adopted, never actually wants. We see this, of course,

00:52:18.060 immigration is a huge example, not so much in the US, but across Europe, right? Judicial intervention

00:52:23.180 and immigration issues is a huge example. I'll give you one example, which you'll love,

00:52:27.260 and then I can sort of, I'll have gotten on my side of suicidal empathy here. I think it was

00:52:35.180 at some point in the 2000s, I guess in the late 2000s, the Supreme Court intervened in Israel's

00:52:42.540 decision not to treat certain Gazan women for cancer. And what I mean by that is, Israel, this is

00:52:49.180 after the disengagement from Gaza, and Gaza was its own sort of, you know, political territorial

00:52:53.420 entity. And yet, Israel was voluntarily treating certain Gazan residents for cancer in Israeli

00:53:01.900 hospitals. And this was a sort of, you know, this was an act of good faith or kindness or whatever.

00:53:06.540 And we can have a conversation about whether that's suicidal empathy or not,

00:53:09.500 but let's set that aside for a moment. The Israeli government selected some particular people

00:53:15.820 who were, in theory, they were going to give treatment to. And they said, I think it was four

00:53:19.420 or five women who they said, you will not receive cancer treatment. Why? Because they were relatives

00:53:25.180 of senior Hamas members, senior Hamas militant members. And I believe one of them was a sister of

00:53:30.300 Yahya Sinwar.

00:53:31.500 I was going to say, Sinwar would be the perfect example of taking out the brain tumor

00:53:37.820 manifestation.

00:53:38.380 Right. And healing. So this is, so this is, but this is where it gets juicy in terms of the

00:53:43.180 court's intervention. So the court, the government decides, you know what, this is nuts. Not just

00:53:47.820 were they treating Hamas relatives, right, for cancer, but this was during the negotiations for

00:53:53.180 the release of Gilad Shalit. Gilad Shalit was a captured, right, a hostage, a soldier kidnapped by

00:53:59.340 Hamas. He was being held by Hamas. So this is during negotiations. The government said,

00:54:02.780 we want to use this as leverage against Hamas leadership. We want to say, you're not going

00:54:06.940 to play ball in negotiations. So we're not going to treat your family relatives for, you know,

00:54:10.300 your immediate relatives for cancer. The Israeli Supreme Court intervened and compelled the Israeli

00:54:17.660 government to treat these Hamas relatives for cancer while Israel was negotiating for Gilad Shalit's

00:54:24.460 release with Hamas leadership. And that, and there are so many other examples. We could have a

00:54:29.260 whole other show just with examples of interventions in which the court compelled

00:54:34.060 the Israeli government and electorate and society to take on certain risks or to do certain outrageous

00:54:38.940 things. And I think this is another, this is an example just of the other layer of suicidal empathy,

00:54:43.580 not just people voluntarily making that decision, but that system being imposed on you by the judicial,

00:54:53.180 right, by the judicial establishment, sometimes by the bureaucracy, et cetera.

00:54:56.540 Right. Well, I appreciate you, your attempt to bridge my work with yours. One more attempt to bridge,

00:55:03.100 and then we can wrap it up. So as you know, in my own work, I apply evolutionary psychology to

00:55:08.940 understand all sorts of human behavior. And I mentioned to you offline that in my first book,

00:55:14.460 I, in the first chapter, I have a whole section where I do a content analysis of specific codes from

00:55:21.660 Haborabi's code, which, if I remember correctly, precedes even the Mosaic code.

00:55:28.220 And if you read some of those, I think there were 283 codes or something, something to that effect.

00:55:33.980 And if you read each of those codes, you could demonstrate that they adhere to certain evolutionary

00:55:40.220 principles. So for example, if your husband goes to war for a very long time, and then he comes back,

00:55:46.860 but you're with child, then you don't have to pay because they recognize that obviously there's such

00:55:51.820 a thing as paternity uncertainty and so on. Right. And so in your going, I know you didn't approach it

00:55:59.740 with that lens. But if I ask you now, in the book that you just wrote, would there be many, many

00:56:07.340 manifestations of you being able to say, oh boy, this is straight out of evolutionary psychology 101?

00:56:13.260 I think the answer is, it's almost a mirror image. I mean, I don't discuss this in explicitly in the

00:56:22.460 book, but I think so many examples in the book are the way in which law can go wrong, when simply

00:56:30.380 not congruent with human nature, correct, meaning the way it can contradict or violate basic tenets

00:56:36.620 of, you know, of human nature and human psychology, etc. And there's, there's a very good argument to be

00:56:42.060 made. And I think, you know, Hayek made, Friedrich Hayek made a very, in his, he wrote extensive

00:56:48.940 books about what it's called, I think, law and legislation. I'm now saying that he has a three

00:56:54.380 volume work, I think, on law and legislation. It's dense, it's dense to read. It's very dense,

00:56:58.940 and it's very, he condensed some of that for the Constitution of Liberty. But, you know, he has a

00:57:04.300 whole theory about the way law develops in societies, etc., and how those do reflect common

00:57:09.500 practices, which in turn actually reflect human nature. And of course, natural law to a great

00:57:13.660 extent, to a great extent, has a claim about how laws ought to reflect basic human nature or basic,

00:57:21.020 you know, fundamental rules of human society. And then finally, there's a really interesting idea

00:57:25.820 about the common law in England, and the way that developed, in the sense that is, you know,

00:57:31.260 specifically the common law in England developed among other things by these very incremental and

00:57:37.100 gradual rulings by these lower tier courts, right? So you'd have John and Paul would have a

00:57:43.180 disagreement over a contractual disagreement, and they'd come and the court would resolve it,

00:57:47.420 and that would be like one, and it would resolve it, that specific issue, it wouldn't create some

00:57:51.420 new rule. But over time, these rules would emerge, which you could look backwards at a whole series of

00:57:57.100 cases and say, okay, I now see a consistent rule. And this consistent rule, because it has emerged from

00:58:03.260 this amalgamation of these different rulings, which reflect real life disputes and behaviors,

00:58:08.220 etc. This also reflects human nature, or at least human behavior in a society. Okay. In Israel,

00:58:15.980 and more generally, in judicial supremacy, we see the exact opposite of that. We see courts way from

00:58:22.300 above, simply imposing without any pretext, even without even pretending to base what they're doing on

00:58:31.660 human behavior, on consistent, right, human nature, or on, you know, empirical human nature, or, of course,

00:58:37.340 on the law itself, on the words of the law, which, to some extent, has been driven by human nature in

00:58:42.620 some ways, right, when you have the people electing representatives, and those representatives

00:58:46.780 fashioning laws, etc. And you have a court, a court which simply acts as almost a despotic entity, which imposes

00:58:55.340 its ideas on society. So you have the potential for evolutionary law, which comes through judicial

00:59:01.740 institutions. But in Israel, we see almost the reverse and opposite of that.

00:59:06.220 Beautiful answer. What's next for Yonatan Green?

00:59:13.260 Well, first of all, what's next for our viewers is that they will order it, yes, of rogue justice,

00:59:19.100 the rise of judicial supremacy in Israel. Well, I'm very happy right now, you know,

00:59:23.500 this is an issue that I want to fix. And, you know, it's not just a complaint about the problem.

00:59:27.420 So I'm hoping that as many people as possible read the book. And that will bring us closer,

00:59:32.060 I think, you know, there's, there's no way to fix a problem unless you properly understand it. So in

00:59:37.340 my mission at the moment in life, is to bring people to a higher level of understanding of this

00:59:42.220 problem, both in Israel, and that frankly, also in other places as well. And hopefully, that will bring

00:59:47.020 us closer to having more functioning, free, and prosperous and flourishing societies.

00:59:55.260 Last question. Did you break your Jewish parents hearts by not becoming a doctor?

00:59:59.500 Yeah. First of all, I became a lawyer. So it's like, you know, it's all it's right. It's a drop

01:00:07.420 there. I just, you know, my, my mom is from England, and my dad is, is from the US. So I think,

01:00:12.140 you know, I'm sure there's somewhere in there where they're just every single day, they just wake up

01:00:16.220 and they're like, you know, never it's a lawyer, a lawyer, sorry, an author, what is this? It's a,

01:00:21.820 it's a pretend job. But you know, do you know, now that I've appeared on the God's odd show,

01:00:26.460 I was going to say, now I am no longer a disappointment. You know, there, I'm going

01:00:31.340 to tell you a quick story. So there's, I won't mention who it is. But there's a very, very, very

01:00:35.500 prominent physician, US Jewish, who came on my show a while ago. And then later, we were chatting. And

01:00:44.620 he said, you know, I was talking to my family. And they said, you know, God's odd, you've been on

01:00:51.820 his show. And he said, I suddenly felt as if they took me seriously, because I'm so get ready,

01:00:58.860 you're going to have newfound respect, son. Listen, you're not an absolute pleasure. Thank you for

01:01:05.020 reaching out to me, and making me aware of your work. I'm so glad that I responded and invite you

01:01:10.860 on your show. I hope you've enjoyed the conversation as much as I have. Please stay on the line so we

01:01:15.420 could say goodbye offline. And put up the book one last time for people to go and get it.

01:01:19.660 Yes, please. Absolutely. Rogue Justice, The Rise of Judicial Supremacy in Israel. You can look

01:01:24.060 it up online, Amazon, etc., in your bookstore. And leave reviews on Amazon, the good ones.

01:01:28.860 Thank you, sir. Stay on the line. Cheers.

01:01:31.420 Thank you so much, Professor Saad.

The Saad Truth with Dr. Saad - February 24, 2026

Yonatan Green - ＂Rogue Justice - The Rise of Judicial Supremacy in Israel＂ (The Saad Truth with Dr. Saad_970)

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