Jurisprudence

What Israel’s “Court Reform” Reveals

It’s only been a few weeks, but the lessons are starting to show up.

An Israeli protester waves the Israeli flag during clashes with Israeli police officers in a demonstration against the Israeli government's judicial reform plan on March 1, 2023 in Tel Aviv, Israel. Smoke rises around him.
An Israeli protester waves the Israeli flag during clashes with Israeli police officers in a demonstration against the Israeli government’s judicial reform plan. Amir Levy/Getty Images.

Under the guise of harmless constitutional housekeeping, members of the governing coalition in Israel are pushing through a list of “judicial reforms” that would fundamentally alter the way the country’s Supreme Court operates. Styled as a set of benign fixes that would, in the words of one prominent booster, “return a basic balance to Israel’s political system,” the reforms would include measures that would fundamentally alter the power of the court to protect the rule of law. They are being rammed through by the far-right coalition that came to power two months ago, without debate or negotiation. A process that should have played out over months, if not years, of considered debate has become a truncated circus.

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Among other things, the proposed measures would: require a supermajority of Israel’s Supreme Court justices (between 80 percent and 100 percent) to strike down any piece of legislation passed by the parliament (the Knesset) as unconstitutional; enact a Canadian-style “override clause” permitting the Knesset to overrule the court after the justices deem a law unconstitutional, requiring a bare majority of just 61 members of the Knesset; render the country’s “Basic Laws” (the closest equivalent to Israel’s constitution) immune from judicial review; overhaul the process of judicial selection to make it more political; and (perhaps most horrifyingly) do away with the bulk of laws prohibiting “fraud and breach of trust” by public officials that form the basis for two of three of Prime Minister Benjamin Netanyahu’s current criminal indictments. The proposal would also grant immunity to prime ministers, ministers, and members of the Knesset “for any crime they might commit in relation to their position while in office.” So that’s awesome.

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These days, the judiciary is on the defensive, and the normal business of the legislature and the executive branch has been waylaid by the juggernaut of this “judicial reform.” As a result, Israel seems to have whiplashed into a country whose three operational branches of government are now the settlers, the ultra-Orthodox, and Netanyahu.

None of the reform measures have made it past the initial stages of enactment. And still, in a matter of a few weeks, the overhaul drive has transformed Israel into what many Israelis have termed a nation they no longer recognize. A vigorous and furious protest movement has taken to the streets every weekend for the past nine weeks to try to forestall these reforms; protests last week resulted in crackdowns, including from those chomping at the bit to characterize protesters as violent leftist mobs. Pushback against the judicial reforms is increasingly coming from inside the house, from former Prime Minister Ehud Barak (who has called for Gandhi-style passive citizen resistance), and from the highest echelons of the army, police, the high-tech sector, and human rights groups. All have sounded alarms suggesting that these “reforms”—which they describe in terms of a “coup” or “revolution”—represent a break-the-glass moment for the rule of law in Israel, and for the future of its democracy.

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Analyses of the ways in which the proposed changes to the court’s power, jurisdiction, composition, and authority abound, and we would note here only that it’s clear the drafters of the new proposals appear to have treated the world’s constitutional democracies as a sort of glossy separation-of-powers spa menu, picking and choosing from existing systems without any regard for the fact that Israel has no formal system of checks and balances analogous to some of those of other countries: no bicameral legislature; no U.S.-style system of federalism; no separation between the executive branch and the legislative branch; and no Canadian Charter of Rights and Freedoms, or formal constitution. In short, the proposals are a smörgåsbord of random global checks and balances that have no meaning under the Israeli system of checks and balances. The explicit promise of the proposed reforms is that elected majorities can and should hold all power and that the judiciary, to the extent it does anything, serves that ruling majority. In the aggregate, these cherry-picked reforms look more like the judicial overhaul that took place in Hungary than the best practices of constitutional courts around the world.

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Netanyahu has been notably unsuccessful in his efforts to sell the public on his coalition’s judicial overhaul offensive. Opinion polls have shown a clear majority opposed to the reforms. In a late February survey, 60 percent of Israelis disagreed with a statement by Netanyahu’s chief reform proponents that the reforms were “the will of the people.” Only 32 percent agreed. The survey also showed that 63 percent of Israelis worry that the reforms will hurt the nation’s financial health, including 52 percent of Netanyahu voters. If these reforms are intended to shore up the will of the people, they are doing precisely the opposite.

It has little helped Netanyahu that his sales pitches have been picked apart by commentators for their misrepresentations. In one instance, he even bent the preamble to the U.S. Constitution to suit his narrative. Flush with victory after preliminary passage of some of the reform measures, Netanyahu noted that the preamble begins with the words “We the People,” which he then mistranslated into Hebrew as “The people—the majority—decides.” There is little question that the slant of his aside was intentional. Netanyahu is justly proud of his fluency in English and in the mechanics of U.S. governance.

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Also troubling for Netanyahu is the unprecedented opposition to the “reform” proposals among heretofore-lockstep U.S. supporters of Israeli government policy and of the prime minister. From Congress to the mainstream Jewish community, many have been stunned into uncustomary silence; others have broken with long tradition and voiced outright criticism. Among them was Netanyahu stalwart Alan Dershowitz, who early on said that had he been in Israel, he would have joined the protests in Tel Aviv, calling the “reform” a threat to civil liberties and minority rights.

One may well ask how the American conservative legal movement that has so vehemently objected to any talk of Supreme Court reforms in the United States feels about these measures in Israel. But to ask that question assumes a consistency in constitutional thought and values that has not been very much in evidence in recent months. Indeed, the very same Wall Street Journal editorial pages that have inveighed time and again against any efforts to reform the U.S. Supreme Court as partisan and outcome-oriented are now fairly teeming with respected conservative thinkers who support the notion of stripping Israel’s high court down to its studs.

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The same conservative legal movement stalwarts who howl at the prospect of turning the U.S. Supreme Court into a “partisan political body” are bizarrely sanguine about doing the same thing in Israel. The seeming lack of awareness—both of the fact that the U.S. constitutional system and the Israeli one are not directly comparable, and that you can’t be for tyranny of the majority in one land but opposed to it in another—is fascinating. More likely, the willingness to accept a religious juristocracy in America while dismantling a secular juristocracy in Israel illuminates a consistent theory of governance that has less to do with judicial independence and majority rule than the preference for religion and rejection of pluralism and liberalism worldwide.

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Also, consider the role of the Federalist Society, Leonard Leo’s $1.6 billion debate society–slash–“wine locker at Morton’s steakhouse” outfit. Religious Zionism member of the Knesset Simcha Rothman, legislative point man for the overhaul, is an Israeli lawyer who posits that these matters of Israeli judicial reform are very specific to Israel. But, of course, that’s only partially true. In recent years, the Federalist Society has imported its signature brand of big money, dark money, free-floating political nihilism, and judicial hardball into Israel’s domestic debate about its Supreme Court. It did this by helping set up its own mini-me, Israel’s Law and Liberty Forum, which enthusiastically backs the proposed judicial coup, and the Kohelet Policy Forum, a libertarian think tank that has pushed hard for these reforms and which reportedly wrote the draft legislation. The two principal donors to the Kohelet Forum? A pair of American billionaires who have poured money into American election-denialists and also far-right judicial reform in Israel.

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Mounting a counterattack to criticism of the “reforms,” Tablet Magazine published a piece last week headlined “Biden Sets Israel on Fire.” Hailing the “reform” as a blueprint to “make the country’s democracy more dynamic,” Lee Smith darkly suggests that the “Biden-Obama faction” is behind the mass protests on Israeli streets, providing “prestige and money” to protest organizers in a plot aimed at “bringing down Bibi” in a “coup [which] looks and feels like the anti-Trump operation.”

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In the recent past, Tablet has featured opinion pieces by several senior figures of the Kohelet Forum, including Kohelet Chair Moshe Koppel; Eugene Kontorovich, head of the forum’s international law department; and attorney and former Kohelet researcher Shimon Nataf, who now serves as legal counsel to Rothman. Blaming the protests on Obama and Biden while pouring U.S. dollars into the judicial reforms is some next-level cynicism.

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Certainly there has been some principled pushback in American legal circles, conceding that the reforms being pushed now in Israel are not originalist, or textualist or modest, and that the express objective is to eviscerate a liberal court that has protected minority rights in the face of rising power to religious and ultra-nationalist majorities. But there has also been a good deal of football spikes and false equivalency suggesting that the American conservative legal movement’s interest in Israeli judicial reform has less to do with a love for originalism and checks and balances than a love for unchecked power for conservative governments.

If unchecked power is indeed the goal, Israelis may have just granted us a preview as to how it might look. In an astonishing and alarming juxtaposition this week, Netanyahu took to national television to equate largely peaceful anti-judicial-reform demonstrators in Tel Aviv with a barbarous swarm of militant settlers who torched, shot, and stabbed their way through the West Bank village of Huwara a few days before.

The 400 settlers, who left some 100 villagers injured, several critically, and destroyed scores of homes and vehicles, were unhindered by Israeli troops in carrying out the vigilante violence. In Tel Aviv, on the orders of Netanyahu’s far-right national security minister, police stormed unarmed protesters, arresting dozens and deploying horse-mounted riot troops and water cannons, at one point tearing off a demonstrator’s ear with a stun grenade.

Israelis, shocked by both the tacit approval of what was described as a pogrom juxtaposed against the crackdown on protesters, cannot help but imagine—and dread—how the proposed “reforms” might look in practice.

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