Latest / Logosofia no Dia a Dia / When a Government Defies Its Own Supreme Court
Transcript
- [Prompt] custom: The Israeli government on Sunday stated publicly that it does not intend to abide by a Supreme Court | Hosts: corn, herman [Response] Corn: On Saturday, the Israeli government voted unanimously to defy a Supreme Court ruling. Not a policy disagreement, not a jurisdictional squabble — a formal, public announcement that it will not comply with a specific court decision. The ruling in question ordered the reinstatement of the Second Authority Council for Television and Radio. The government says the council doesn't meet minimum legal requirements, so it has no authority, court ruling or not. Communications Minister Shlomo Karhi put it bluntly: "The judges of the Supreme Court are not the Knesset. The rule of law is not the rule of judges. Herman: Justice Minister Yariv Levin said a court ruling that contradicts the wording of the law harms the separation of powers. I read the i24 piece — the government's position is that a court ruling cannot create powers that aren't granted by law. So they're framing this as defending the law against the court, not defying it. Corn: Which is a tidy bit of rhetorical jujitsu. But the thing Daniel flagged in his prompt, and the thing that's being repeated across every outlet covering this, is the phrase "constitutional crisis." It's the headline on the i24 article with a question mark, it's what the Movement for a Better Government in Israel is calling it, it's the term everyone reaches for. And Daniel's question is: what does that actually mean? Not as a dramatic label, but as a concept. Where did it come from, what's the mechanism it describes, and what's the real message being delivered when people say Israel has arrived at one? Herman: And this is the first time the Israeli government has formally announced non-compliance with a specific court ruling. There have been tensions, there have been clashes, there was the whole judicial overhaul fight — but a unanimous cabinet vote that says "we will not honor this ruling" is new territory. Corn: Let's define the moment clearly before we go deeper. The Supreme Court ruled last month that the previous government's Second Authority Council — the body that oversees commercial TV and radio — had to be reinstated, even though its membership had dropped below the legal minimum. The government's response on Saturday was: no. They say a council that doesn't meet the statutory threshold cannot exercise authority, and no court ruling can change that. Herman: I think this is worth pausing on for a second, because the specific dispute here sounds almost bureaucratic on its face. The membership threshold — why does that matter? The law that created the Second Authority Council specifies a minimum number of members for the body to be properly constituted. The government's argument is that this isn't a flexible guideline, it's a statutory prerequisite. If you don't have enough people in the room, legally speaking, there is no council. It's like trying to convene a jury with only eight people when the law requires twelve. The verdict doesn't count, no matter what the judge says. Corn: That's the government's logic. And the court's counter-logic is that the previous council was properly constituted when it was formed, its membership dropped through resignations and expired terms that the government itself failed to fill, and the government can't use its own inaction as grounds to dissolve a body it doesn't like. That's the legal ping-pong. But the deeper structural issue is what happens when these two interpretations collide and there's no agreed umpire. Herman: This cuts to something structural about Israel that makes the whole "constitutional crisis" framing land differently here than it would in, say, the United States. Israel doesn't have a constitution. It has Basic Laws, passed by the Knesset over decades. The Supreme Court asserted the power to strike down laws that violate those Basic Laws in the nineteen ninety-five Mizrahi Bank ruling. That was the moment the court gave itself judicial review. But the foundation under that power has always been contested — it's precedent, not text. Corn: When the government says "a court ruling cannot create powers that are not granted by law," they're not just arguing about this one council. They're challenging the entire architecture the court built for itself since nineteen ninety-five. That's why this isn't just another round of the judicial overhaul fight. It's a direct shot at the premise that the court gets to decide what the law means when the government disagrees. Herman: Which brings us to what Daniel actually wants to understand. "Constitutional crisis" isn't just a dramatic way of saying things are bad. It's a term from political science that describes a specific breakdown — when one branch of government refuses to accept the authority of another, and there's no higher arbiter to resolve it. The system's self-enforcement mechanism collapses. That's what we need to unpack. Herman: Where does the term actually come from? The origin point most scholars point to is Carl Schmitt, nineteen twenty-two, "Political Theology." He opens with a line that's been quoted to death but still does the work: "Sovereign is he who decides on the exception." What Schmitt was getting at is that the real test of where power lives isn't in normal times — it's in the moment when the normal rules get suspended. Who gets to say "this no longer applies"? That's sovereignty. Corn: The constitutional crisis is the moment when two different actors both claim to be the one who decides on the exception. Herman: And that's what separates a crisis from a mere conflict. In a normal political fight, everyone agrees on who the referee is even if they hate the call. Think of a football match — the coach screams at the referee, the fans boo, but nobody storms the field and declares themselves the new officiating crew. They accept the call and move on. In a constitutional crisis, someone storms the field and says "I'm the referee now, and my ruling is the one that counts." The referee's authority itself is what's being contested. The scholar Mark Tushnet frames it this way: a constitutional crisis occurs when the constitution fails to provide a clear answer to a dispute between branches, and neither branch is willing to back down. There's no tiebreaker. Corn: The mechanism underneath that is what makes it self-reinforcing. In a functioning system, compliance is voluntary. The court doesn't have an army. It doesn't have a police force. It relies on the executive branch accepting that it has to follow court orders. When the executive says "no thanks," there's no Plan B written into the rules. The court's power is entirely reputational — it's a bluff that works only as long as everyone agrees not to call it. Herman: The classic American example is the Little Rock crisis in nineteen fifty-seven. The Supreme Court ruled in Brown versus Board of Education that segregated schools were unconstitutional. Arkansas Governor Orval Faubus defied the ruling and used the National Guard to block Black students from entering Central High School. President Eisenhower responded by federalizing the Arkansas National Guard and sending in the hundred and first Airborne Division. Nine Black teenagers walked into that school surrounded by federal troops. The crisis was resolved because there was a higher enforcement mechanism — the president with federal troops. Corn: Which is the contrast that makes the Israeli case so stark. Eisenhower could send the military to enforce a court order against a defiant governor. In Israel right now, the government itself is the one defying the court. The same executive branch that just announced non-compliance. There is no higher authority to call in. The president of Israel is a ceremonial figure — there's no federal troops moment available. Herman: This is where Bruce Ackerman's work comes in. He distinguishes between what he calls a "constitutional crisis" and a "constitutional moment." A crisis is when the system breaks down because no one has legitimate authority to resolve the dispute. A constitutional moment is when the people themselves resolve it — through extraordinary political mobilization that changes the fundamental rules. The nineteen ninety-five Mizrahi Bank ruling in Israel was arguably a constitutional moment. The court asserted judicial review, the Knesset didn't push back hard enough to stop it, and the new rule stuck. Corn: What's happening now isn't a constitutional moment — it's the crisis Ackerman describes. The government isn't trying to change the rules through legislation. It's simply announcing it won't follow a ruling it disagrees with. A constitutional moment requires the public to weigh in and settle the question. This is the government short-circuiting that process entirely. Herman: Which brings us to the sucker's payoff problem. This is the thing Daniel mentioned in his prompt, and it's the deepest insight in the whole discussion. When a government publicly announces it will ignore a court ruling, it sends a signal to every citizen: the people making the rules don't think the rules apply to them. At that point, obeying the law becomes a sucker's game. Why should I pay my taxes if the government can pick and choose which court orders to follow? Why should I honor a contract? Corn: It's contagious. Constitutional crises don't stay contained within the branches that started them. They leak into the social contract itself. The legitimacy of law isn't just about enforcement — it's about reciprocity. If the rule-makers defect, defection becomes rational for everyone else. And you can see this in places where the rule of law has seriously degraded. It doesn't start with citizens ignoring traffic laws. It starts with a government official saying "this doesn't apply to us," and then it spreads outward in concentric circles — businesses, local authorities, ordinary people. Each defection makes the next one easier to justify. Herman: That's the real mechanism. It's not a dramatic collapse that happens in a day. It's an unraveling. The term "constitutional crisis" isn't hyperbole here — it's a diagnosis of a specific condition. One branch has refused the authority of another, there's no higher arbiter, and the signal to the public is that compliance is optional. That's the machinery Schmitt was describing, even if he'd have rooted for the other side. Herman: Apply that machinery to July fifth. The Supreme Court says the council is valid and must be reinstated. The government says no, the council doesn't meet the legal threshold, and a court ruling can't create authority where statute says there is none. Who decides what "minimum legal requirements" means? The court says it does. The government says the plain text of the law does, and the court is misreading it. There's no agreed arbiter to break the tie. Corn: That's the textbook condition. Two branches, both claiming the authority to interpret the law, neither accepting the other's claim. No higher referee. This isn't a policy fight about broadcasting regulation — it's a fight about who gets to say what the rules are. The Second Authority Council is almost incidental. It's the terrain the battle happens to be fought on, not the thing anyone's actually fighting about. Herman: The Movement for a Better Government in Israel called this the straw that broke the camel's back, and the timeline backs that up. The erosion has been visible for years. The twenty eighteen Nation-State Law downgraded Arabic and elevated Jewish settlement as a national value, which the court declined to strike down. Then the twenty twenty-three judicial overhaul — the government tried to change how judges are appointed and limit the court's power to review legislation. That brought hundreds of thousands into the streets. Mass mobilization, general strike threats, reservists refusing to serve. The government paused parts of it but didn't abandon the project. Corn: The difference is qualitative. The judicial overhaul was about changing the rules for the future — legislating new constraints on the court. Saturday's vote isn't about future rules. It's about a specific ruling, right now, that the government is simply refusing to honor. That's not legislating. That's defying. And the distinction matters because one is a political fight conducted through the system's own procedures, and the other is stepping outside the system entirely. Herman: Hungary and Poland show where this road goes. In twenty thirteen, Hungary passed the Fourth Amendment to its constitution — it directly overruled Constitutional Court decisions the government didn't like, retroactively nullifying them. In Poland, twenty fifteen, the government simply refused to publish the Constitutional Tribunal's rulings, which meant they had no legal effect. They didn't argue with the rulings. They didn't appeal them. They just declined to print them in the official gazette, so legally they didn't exist. In both cases, the European Union triggered Article seven proceedings — the so-called nuclear option that can suspend a member state's voting rights. Corn: In both cases, Article seven went nowhere because it requires unanimity among member states, and Hungary and Poland protected each other with mutual vetoes. But the point is, there was at least a supranational body that could theoretically intervene. Israel has no equivalent. No higher authority exists above the Knesset and the Supreme Court. The crisis is entirely self-contained — and entirely self-reinforcing. There's no EU to even threaten sanctions. There's no higher court of appeal. There's just the two branches staring at each other across an unbridgeable gap. Herman: Which brings us to the citizen. This is what Daniel was getting at, and it's the part that keeps legal scholars up at night. If the government publicly announces it will ignore a court ruling it disagrees with, what's the argument for why a citizen should obey a court ruling they disagree with? Tax law, contract law, traffic law — all of it rests on the same premise: the system works because everyone accepts that the rules apply to everyone. Corn: It's the sucker's payoff made systemic. The government just signaled that compliance is conditional. If the rule-makers get to opt out, opting in becomes irrational. That's not a legal problem anymore. It's a legitimacy problem. And legitimacy, once it starts draining, doesn't drain in neat, predictable stages. You don't get a memo announcing that the rule of law has been downgraded from version two-point-oh to version one-point-five. You get a thousand small decisions by individuals who've done the math and concluded that following the rules makes them a sucker. Herman: This is where I think an analogy helps. Think of it like a queue. Everyone stands in line because there's a shared expectation that cutting is wrong and will be punished. The moment someone cuts to the front and nothing happens, the queue dissolves. Everyone rushes forward. The line doesn't erode gradually — it collapses all at once, because the only thing holding it together was the belief that everyone else would respect it. That's the logic of reciprocal compliance. The government just cut the line. Corn: If we take this framework seriously, it gives us a way to evaluate any "constitutional crisis" claim that shows up in the news — not just this one. First, which branch is refusing to comply? Second, what's the enforcement mechanism? If the answer to the second question is "nothing," the crisis is real and it's self-reinforcing. Herman: That's the diagnostic. And it travels. When Poland's government refused to publish Constitutional Tribunal rulings in twenty fifteen, the enforcement mechanism was supposed to be the EU — but Article seven stalled. So the crisis persisted. When you see a headline screaming "constitutional crisis," run those two questions. If there's a higher authority that can step in and actually compel compliance, it's a standoff. If there isn't, it's a breakdown. Standoffs can be resolved. Breakdowns change the system permanently. Corn: The second actionable piece is what Daniel put his finger on in the prompt. The real message from people calling this a constitutional crisis isn't about the Second Authority Council. Nobody's losing sleep over broadcast regulation. The message is about the collapse of reciprocal compliance. The government's action signals that the rules apply to everyone except the rule-makers. Herman: That's what makes this different from democratic backsliding measured on some index. You can track judicial appointments getting politicized, you can track press freedom declining — those are gradients. They happen by degrees. You can argue about whether a country moved from a seven-point-three to a six-point-eight on some academic scale. But a formal, unanimous announcement of non-compliance with a specific court ruling is a binary event. The gradient becomes a cliff. There's no "sort of" defying a court order. You either comply or you don't. And on Saturday, the government chose "don't. Corn: What should someone actually watch for in the coming weeks? Does the Supreme Court issue a contempt order or some equivalent? Does the Knesset act — either to back the government or to reassert its own role? And does the public mobilize the way it did in twenty twenty-three? The response to those three questions tells you whether this is a temporary standoff or a permanent shift in how the system works. Herman: Because the crisis isn't just what happened on Saturday. It's what happens next. If the government ignores the ruling and nothing happens — no consequences, no backlash that changes the calculus — then the new rule is that court rulings are advisory. And that's not a crisis anymore. That's the new constitution. Not written down anywhere, not debated in the Knesset, just established by precedent: the executive branch decides which rulings to follow, and the court's authority is conditional on the government's consent. Corn: One final question to leave you with — and it's the one that keeps me up. If the government can defy the Supreme Court with impunity, what happens to the next citizen who defies a court order? Not a minister, not a coalition whip — just someone who loses a civil case and decides the ruling doesn't suit them. What's the argument for why they should comply? Herman: There isn't one. That's the whole point. The legitimacy of law isn't stored in the court building — it's stored in the expectation that everyone plays by the same rules. Once the rule-makers publicly defect, that expectation evaporates. You can't lecture a citizen about the sanctity of court orders on Tuesday after the cabinet voted to ignore one on Saturday. And that citizen won't just defy court orders — they'll tell their friends, and their friends will tell their friends, and the expectation of compliance will unravel person by person, case by case. Corn: Watch the Supreme Court's response in the coming weeks. If it issues a contempt ruling or some equivalent and the government ignores it again, the crisis escalates from a single defiance to a pattern. If the government backs down — even partially, even with face-saving language — the system holds. Corn: It's the only word that can. Herman: Thanks to our producer Hilbert Flumingtop. This has been My Weird Prompts. Find every episode at my weird prompts dot com or wherever you get your podcasts. Corn: Rate and review if you're enjoying the show. It genuinely helps. Herman: Now: Hilbert's daily fun fact. Hilbert: In the nineteen sixties, Soviet irrigation projects shrunk the Aral Sea so drastically that the exposed seabed became a new desert called the Aralkum. Biologists surveying the dried lake floor in the nineteen nineties found a single surviving species of brine shrimp, Artemia parthenogenetica, persisting in isolated hypersaline puddles — the last remnant of an ecosystem that once supported a major fishing industry. Corn:...right.