Israel's judicial reforms

A dispassionate guide for the perplexed

Apr 04, 2023

Hundreds of thousands of Israelis have protested a sweeping reconstruction of the country’s judiciary. Photo: Judith Levy

In response to Judith Levy’s remarks about the protests in Israel, readers had a request and a criticism. The request: “It would be nice if we got an explainer on what the proposed law says, what the current problems of the judiciary are, and then we could better understand how this exercise of unbridled democracy is undemocratic.”

The criticism: “As soon as I hit the label ‘racist’ I stopped reading. What comes after cannot be considered fair-minded. Make a case, don’t throw out labels.”

Let’s treat the criticism, first. The word “racist” is indeed often an empty epithet. In this context, however, it is a factual and indeed a legal description. This is the sentence in question:

Bibi’s essentially handed the racist Kahanist Ben-Gvir a militia of his own, because subordinating the entire domestic law enforcement system to him wasn’t enough. It’s hard to convey just how obscene and dangerous this is.

Israel is a multiethnic and multiracial democracy. To preserve its social harmony, Israeli law proscribes racist incitement. Here are the key aspects of this legal regime:

Penal Law 1977. Section 144 of the Penal Law criminalizes incitement to racism, defined as “an act intended to encourage persecution or humiliation, or expressing contempt or animosity for a group of people or its members, because of their race, color, origin, or affiliation to a specific ethnic group.”1 Violation of this law can result in imprisonment of up to five years.
Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law. Enacted in 2000, this law prohibits discrimination in the provision of goods, services, and access to public places on the basis of race, religion, nationality, land of origin, gender, sexual orientation, political views, or personal status. It also requires businesses and public institutions to post signs clearly stating that discrimination is prohibited.2
Incitement to Violence or Terror: Section 144B of the Penal Law addresses incitement to violence or terror, which includes the publication or public expression of praise, support, encouragement, or identification with an act of violence or terror. This offense carries a penalty of up to five years in prison. Section144F.(a) of this law stipulates, “If a person commits an [incitement to violence or terror] offense out of a racist motive, as defined in Subchapter A1, or out of hostility towards a public because of their religion, religious group, community of origin, sexual orientation or because they are foreign workers, he shall be liable to double the penalty set for that offense or to ten (10) years imprisonment, whichever is the lesser penalty.”
Defamation and Libel: These are fairly standard provisions related to defamation and libel, which can be applied in cases where racist incitement harms a victim’s reputation.

I couldn’t find comprehensive data on the frequency of prosecutions under these laws in Israel, but from what I can tell, the standard complaint is that Palestinians are disproportionately targeted by them. Whether that’s true, I don’t know. What I do know is that Itamar Ben Gvir has been charged and convicted of racist offenses, and not just once or twice. He’s been charged 45 times; he’s been convicted eight times; and there is really no doubt about it: If the word “racist” has any meaning at all—and it does—it applies to Ben-Gvir.

It’s not common for prominent political figures to be prosecuted for such offenses, and it’s all the more remarkable because Ben-Gvir is a lawyer who understands these laws full well. His legal speciality is defending Jewish extremists charged with violent offenses like burning mosques to the ground. But he nonetheless regularly commits prosecutable offenses.

Ben-Gvir, who leads a party called Otzma Yehudit, or Jewish Power, entered the Knesset in 2021. The key thing to understand about Ben-Gvir is that he’s a disciple of the late rabbi Meir Kahane and a supporter of Kahane’s Kach party. The party was banned in 1994 under Israel’s anti-terrorism laws. Ben-Gvir studied in Kahane’s yeshiva and was the head of Kach’s youth wing.

Who was Meir Kahane?

File:Jerusalem Kahane was right sticker.JPG — Jerusalem, sticker: “Kahane was right, about this there can be no debate!”

An American-born Israeli, Kahane served a single term in the Knesset before his party was designated a terrorist group in Israel, the United States, and the EU. Kahane also founded the Jewish Defense League, originally based in New York and responsible for countless murders, bombings, hijackings, brutal beatings, shootings, and other attacks against black Americans, Muslims, Soviet diplomats, and Jews who weren’t “Jewish enough” (including Holocaust survivors).3 JDL terrorism was so severe that Nixon feared it would threaten the SALT II negotiations. In 1976, Senator Abraham Ribicoff described the JDL as a “far greater danger to Israel than any Arab army.”

Describing the Jewish Defense League and its leadership as “contemptible,” the ADL wrote this profile of the group for law enforcement in 2001, following a thwarted JDL terrorist attack in Los Angeles:

The Jewish Defense League, also known as JDL, was established in 1968 for the declared purpose of protecting Jews by whatever means necessary in the face of what was seen by the group’s principals as their dire peril. The founder, national chairman, and leader of JDL was a then-38-year-old ordained rabbi from Brooklyn, New York, Meir Kahane, who, in 1990, was assassinated in New York by an Arab extremist.
In Rabbi Kahane’s gross distortion of the position of Jews in America, American Jews were living in a fiercely hostile society, facing much of the same dangers as the Jews in Nazi Germany or those in Israel surrounded by 100-million Arab enemies. Rabbi Kahane believed that the major Jewish organizations in the United States had failed to protect America’s Jews from anti-Semitism, which he saw as “exploding” all over the country. “If I have succeeded in instilling fear in you,” Rabbi Kahane said in the closing statement of his standard speech, “I consider this evening a success.”

To give you the flavor of it, here’s a (very) small sample of the violent attacks for which Kahanists have been responsible:

Kahanists are, explicitly, Jewish supremacists. Kahane and his followers sought to ethnically cleanse Arabs from Israel and the occupied territories and impose a Jewish theocracy on what they considered Greater Israel, which included not only the West Bank, East Jerusalem, and Gaza, but large parts of Egypt, Jordan, Syria, Lebanon, and Iraq. Speaking before an audience in Haifa in 1985, Kahane said:

No one can understand the soul of those (Arab) beasts, those roaches. We shall either cut their throats or throw them out. I only say what you think. … In two years time, they (the Arabs) will turn on the radio and hear that Kahane has been named Minister of Defense. Then they will come to me, bow to me, lick my feet, and I will be merciful and will allow them to leave. Whoever does not leave will be slaughtered.

A fifth of Israeli citizens are Arabs—roughly two million people—and the Arab population of the West Bank is about 3.5 million. (The Jewish population of the West Bank is slightly more than half a million, not including Jewish residents of East Jerusalem.) Present-day Kahanists, therefore, seek to forcibly transfer or otherwise rid the region of 5.5 million people—or, as Kahane referred to them, 5.5 million “dogs.” He also called them “cancer.” When asked whether he would implement this via “midnight deportations in cattle cars,” Kahane said, “Yes!”

Kahane sought to ban Jewish-Gentile sexual relations, which he described as “the incredible pollution of the sacred Jewish seed.” He took out a full-page ad in an Israeli daily spelling out his proposal for a law forbidding the “abomination of assimilation and communion with goyim.” He also sought to criminalize “anyone who declares that any verse or saying in the Bible, the Talmud, or the Commentary isn’t true.”

Laws proposed in the Knesset by Meir Kahane

Segregation at bathing beaches: Separate beaches to be set out for Jews and non-Jews, [the beaches to be] of equal standard. Any member of one people found at a beach set aside for the other shall be liable to six months’ imprisonment.

Status of non-Jews: They shall have no national rights, nor any share in the political process within the state of Israel. A non-Jew may not be appointed to any position of authority, nor allowed to vote in elections to the Knesset or any other state or public body. Non-Jews will be obliged to assume duties, taxes and slavery. If he does not agree to slavery and taxes, he will be forcibly deported.

Ban on mixed marriages: Jews or Jewesses, citizens or residents of Israel, are prohibited from marrying non-Jews, whether in the country or abroad. Such marriages will not be recognized.

Restriction of residence: A non-Jew shall not reside within the boundaries of jurisdiction of the city of Jerusalem.

Extramarital relations between Jews and non-Jews: Jews or Jewesses, citizens of Israel, are forbidden to hold intimate relations, full or partial, in any form, with non-Jews, even within a marital framework. Offenders against this article are liable to two years’ imprisonment. A non-Jew pursuing intimate relations with a Jewish whore or Jewish male is liable to fifty years’ imprisonment. A Jewish prostitute or Jewish male who has intimate relations with a non-Jewish male is liable to five years’ imprisonment.

Segregation of pupils: All education institutions in the Land of Israel shall be separate for Jews and non-Jews.

Preventing meetings between youth: Mixed summer camps, community youth and social centers, and all other mixed institutions, shall be abolished.

At the time, Likud Knesset member Michael Eitan correctly noted the similarity of these proposals to the Nuremberg Laws. In a 1972 interview in Playboy, Kahane agreed with the interviewer that there was no significant difference between his vision of racial purity and that of the Nazis. If the word “racist” doesn’t describe this program, it describes nothing.

Kahane connected his political agenda to the return of the Messiah. Had Israel expelled the Arabs, destroyed the mosque on the Dome of the Rock, and annexed the West Bank, he wrote, “without considering the Gentile reaction, without fear of what he may say or do, the Messiah would have come right through the open door and brought us redemption.” He also advocated the liquidation of Jews who stood in the way. The Torah, he wrote, “says to burn out the evil from our midst.” (Reform Judaism, he wrote, represented such an evil.)

Kahane was imprisoned for a year in the United States for violating his probation—he’d been convicted of conspiring to manufacture explosives—and arrested no less than 62 times in Israel on charges ranging from sedition to inciting riots. In Israel, he was imprisoned for six months for planning armed attacks on Palestinians. He met a predictably violent end in 1990, when he was assassinated in New York by an Egyptian-born American who was later implicated in the 1993 World Trade Center bombing. The Kahanist movement later achieved its ultimate expression on November 4, 1995, when the die-hard Kahanist Yigal Amir assassinated Prime Minister Yitzhak Rabin.

Itamar Ben-Gvir describes Kahane as “a saint.”

Further reading:

American, Racist, Jewish. An excerpt from a new book explains the very American racism of the notorious late Rabbi Meir Kahane.
Understanding Kahane. A new biography of Meir Kahane shows how integral he was to the American-Jewish story. Do recent events now show how integral he is becoming to the Israeli story?
Murder in the Name of God: The Plot to Kill Yitzhak Rabin
Fact Sheet: Meir Kahane and the extremist Kahanist movement

File:Itamar Ben Gvir 3 (cropped).jpg — Itamar Ben-Gvir, אלון נוריאל, CC BY-SA 3.0, via Wikimedia Commons

Kahane and Ben-Gvir

Ben-Gvir’s political platform is explicitly Kahanist. His party, Jewish Power or Otzma Yehudit, is a successor to Kach. He regularly and proudly presents himself as a disciple of Kahane.

The Kach party was ultimately banned through the passage of a new Basic Law prohibiting racist parties from entering the Knesset. Jewish Power has not included the most inflammatory elements of Kach’s platform, so it’s been permitted to run by the Central Elections Committee and the Supreme Court. But it’s completely understood that this party is the successor to Kach.

You can read the party platform here. Like Kach, the party stands for Jewish supremacy and the ethnic cleansing of Palestinians from the region. Among key elements of its platform are the replacement of secular law by Jewish law and “total war” against “Israel’s enemies.” Not only does it endorse the annexation of the West Bank, it proposes the reconquest and annexation of Gaza. It wishes to send “Israel’s enemies” (meaning Palestinians, all of them) “back to their countries of origin.” The military, it says, should abandon the policy of “containing the enemy” and replace it with “elimination and annihilation.” The “Jewish democracy” it envisions will “reject universal values.”

The party is composed of self-declared Kahanists. Michael Ben-Ari was denied a US visa in 2012 because of his ties to Kach. Baruch Marzel was Kahane’s secretary in the Knesset. Bentzi Gopstein was Kahane’s student, and regularly faces charges of incitement to violence, racism, and terrorism. Then, of course, there’s Ben-Gvir.

Ben-Gvir is a settler in Kiryat Arba, a notoriously extreme outpost populated by the most radical, violent, and heavily-armed settlers in the West Bank. Many were born in the United States. Ben-Gvir spent his youth spray-painting “Kahane Was Right” and “Arabs Out” on buildings across Jerusalem, sabotaging water heaters on Arab families’ roofs, and handing out eggs to throw at marchers in gay pride parades. Ehud Olmert claims to have once punched him in the face. As Ruth Margalit writes,

In 2011, he invited the press to a public pool in Tel Aviv, where he appeared with forty Sudanese migrant workers. He bought them all tickets to enter the pool, and, while cameras rolled, handed them swimsuits. “I want all the pampered Tel Avivians to understand that if we give human rights to the Sudanese they will come here,” he told reporters. Laughing, he called out to the migrants, in English, “Swim! Swim!”

Ben-Gvir has spent the better part of his life under Israeli police surveillance. Shortly before Yitzhak Rabin was assassinated, he vandalized Rabin’s car and proudly displayed the hood ornament he had seized before television cameras. “We got to his car,” he said. “We’ll get to him, too.”

Margolit describes a particularly disgusting episode in Ben Gvir’s career:

In 2015, Ben-Gvir, dressed in white, attended a wedding in Jerusalem for a young couple in his circle. After the ceremony, the music came on, and the men broke into an ecstatic dance, holding aloft not only the groom but also knives, assault rifles, and what appeared to be a Molotov cocktail, passing them from hand to hand. One of the guests then raised a picture of a baby, while another repeatedly stabbed the picture with a knife. The baby’s name was Ali Dawabsheh.
Five months earlier, in the West Bank village of Duma, Jewish arsonists had firebombed a Palestinian home, burning baby Ali and his parents to death and critically injuring his four-year-old brother. Many at the wedding were friendly with the main arsonist, who had since been convicted of murder and sentenced to life in prison. Ben-Gvir was his attorney.

The event became known as the “wedding of hate.”

The most infamous Kahanist attack of all was the massacre in the Cave of the Patriarchs. The murderer, Baruch Goldstein, was a JDL luminary from Brooklyn who had been on the Kach party’s list and represented it in the Kiryat Arba local council. He led Kahane’s campaign for the Israeli parliament. In 1994, Goldstein walked into a mosque in Hebron and opened fire on 800 Palestinians as they knelt in prayer, killing 29 and wounding another 125.

This is why Kach was designated a terrorist organization.

In the wake of the massacre, then-Prime Minister Yitzhak Rabin addressed the Knesset. Speaking not only of Goldstein but of those who sought to make of him a hero, he said:

You are not part of the community of Israel ... You are not part of the national democratic camp which we all belong to in this house, and many of the people despise you. You are not partners in the Zionist enterprise. You are a foreign implant. You are an errant weed. Sensible Judaism spits you out. You placed yourself outside the wall of Jewish law ... We say to this horrible man and those like him: you are a shame on Zionism and an embarrassment to Judaism.

Until recently, Ben-Gvir kept a portrait of Baruch Goldstein in his living room. He dressed like Goldstein for Purim. In 2010, he said, “He knew that Jewish blood was about to be shed, and so he protected his own people. Perhaps some were innocent—but war is war.” He not long ago told a television news station that Goldstein was a model to his children.

In the lead up to the election, Ben-Gvir tried to portray himself as a man who had moderated, leading some of his allies to criticize his “flexible” ideology. He insisted he wasn’t a racist: How could he be, he asked, when he not only wanted to expel disloyal Arabs but disloyal Jews? During his campaign, he whipped up a gender-segregated crowd with calls for the death penalty for Palestinians. The audiences responded with chants of “Death to Arabs.” He corrected them: “No, just the terrorists.” He removed Goldstein’s portrait from his living room, a condition for his inclusion in the coalition. (But subsequently his wife told a radio news broadcaster that it was still hanging in their living room, so who knows.)

His connection to Kahane is not subtle. He recently pitched up at a memorial for Kahane, in Jerusalem, where he spoke with a huge sign behind him saying, “Kahane was right.” He praised Kahane as being “about love. Love for Israel without compromise, without any other consideration.”

Throughout the 1980s and 1990s, Kahane was so reviled a figure in Israel that when he spoke in the Knesset, the Likud—Netanyahu’s party—would rise as one and depart the chamber. Ben-Gvir, too, was only recently considered an absolutely marginal and properly marginalized figure—someone akin, perhaps, to David Duke or Nick Fuentes.4

Netanyahu not long ago described Ben-Gvir as unfit to serve as a minister. Indeed, until last October, he refused even to be in the same photograph with him. Naftali Bennett likewise refused to run on the same list as Ben-Gvir: “It is so self-evident” that Ben-Gvir should be marginalized, said Bennett, “that I’m amazed that I have to explain it at all.”

Now Ben-Gvir is in Netanyahu’s cabinet. He’s Israel’s minister of public security, responsible for Israel’s domestic police and its paramilitary border police. What’s more, as Judith noted, as a concession in exchange for delaying judicial reform, Netanyahu has handed him control of the National Guard. The prospect of Ben-Gvir at the helm of a state-backed militia would be utterly preposterous were it not so minatory. We are speaking of a man who kept a portrait of Israel’s most infamous mass-murderer in his living room. A man whom former Prime Minister Ehud Olmert described as a more imminent danger to Israel than a nuclear-armed Iran.

Ben-Gvir’s party, Jewish Power, managed to enter the Knesset in the March 2021 elections by merging with Bezalel Smotrich’s National Union party. (As for Smotrich, he makes Ben-Gvir look moderate.) Together with the Noam party (a one-issue party devoted to opposing homosexuality), this became the Religious Zionism slate. The merger was at Netanyahu’s behest: He was determined to prevent Jewish Power from falling below the electoral threshold. In orchestrating this union, he transformed Ben-Gvir from disdained outcast to the most politically successful Kahanist in the movement’s history. Ben-Gvir then ran on the pledge to expel Palestinians he deemed traitors, deport rival lawmakers, and give Israeli soldiers immunity from prosecution.

Ben-Gvir himself did not serve in the military. He was issued an exemption. He was deemed unfit to serve—a man so racist that he should not hold a state-issued weapon. (This was the IDF’s judgment, not mine.)

So there you go—your case that Ben-Gvir is racist.

I hope you’ll now consider the rest of Judith’s essay fair-minded.

Further reading:

Before describing the proposed legal reforms in dispassionate detail, let me make a few political points. So much anti-semitic nonsense is written about Israel that when confronted with a figure like Ben-Gvir, one is tempted to assume he can’t truly exist: It must be an anti-semitic slander. Unfortunately, it isn’t. Every country has its lunatics, and these are Israel’s.

A large part of the protesters’ anger, clearly, devolves from the inclusion of figures like Ben-Gvir and Smotrich in Netanyahu’s coalition. “Any man who would get in bed with these people to stay in power and avoid a corruption conviction,” goes the argument, “is a man who does not have Israel’s best interests at heart.”

But Netanyahu could not have included these figures in his government had there been no one willing to vote for them. Ben-Gvir and Smotrich do, unfortunately, represent a strain of Israeli thought—and this, in turn, must be seen in the global context of the rise of the New Caesars.

Upon Ben-Gvir’s appointment to the cabinet, Paul Gross, a lecturer in Israeli politics, wrote this:

That a disciple of Kahane is about to be appointed an Israeli cabinet minister is less the triumph of Kahane’s peculiar theocratic thinking than the result of a perfect storm: the rise of secular illiberal nationalism on the Israeli right (as in parts of Europe and the United States), making the Likud far less allergic to Kahanism; the disappearance of the old mainstream National Religious Party, giving Bezalel Smotrich and Ben-Gvir the opportunity to present themselves as the political home for religious Zionists; and—above all—the central figure of Netanyahu, and his personal interests. The Netanyahu of even five years ago (that is, before being charged with corruption) was too cautious, and sensitive to international opinion, to have been personally, openly involved in bringing Kahane’s political heirs out from the cold and into the Knesset. Today’s Bibi is a sworn enemy of the judiciary (which he once defended as a “pillar of our democracy”) and ‘liberal elites,’ and he desperately needs allies who will relish laying waste to these institutions and subverting democratic norms.

Israel’s antisemitic critics will argue—they do argue—that Smotrich and Ben-Gvir are exactly what Israel has really been all along, indeed that their philosophy is inherent to Zionism itself. Nothing has changed, they say: It’s just now out in the open.

This is also what critics of America, and particularly critics of American conservatives, say about the rise of Trump: They’ve always been rotten. The only difference is that now they’re saying the quiet part out loud.5 There’s a bit of truth to this: These personalities didn’t emerge out of nowhere. They draw on dark elements of American and Israeli culture that have always been present.

But on the whole, it’s a lie. There’s a massive difference between a culture that has a dark shadow and one that is given over entirely to wallowing in it. It’s a sufficiently significant difference to take you all the way from “Mr. Gorbachev, tear down this wall” to “Why shouldn’t I root for Russia?” It is, in short, all the difference in the world.

The majority of Israelis, across the political spectrum, are sickened by these people. Every democracy now seems to be plagued by figures like these, but the mettle Israelis have recently shown in standing up to them puts other democracies to shame.

Trump, Orbán, Erdoğan, Bolsinaro, Kaczyński, Modi, and now Netanyahu—the movements these figures lead have a great deal in common. As I’ve written before:

What unites [the regimes they would establish] is this: They are democracies, in the sense that their leaders derive their legitimacy from elections and the public’s widespread support. But their citizens don’t enjoy the rights and freedoms that most of us associate with the word “democracy,” and without which elections are meaningless. These rights and freedoms are not derived from democracy, per se, but from liberalism. Leaders in these regimes use similar strategies to stay in power, democratically, even while failing to protect these rights and freedoms.

The debate in Israel conforms almost precisely to the contours of the trends I’ve previously described:

Common to these movements are a particular set of ideas and dispositions.
First, they embrace the besieged fortress narrative. The people or the country is a besieged fortress, threatened internally by elites, minorities, and traitors, and externally by hostile foreign powers and spies. These enemies seek to thwart the People’s Will and deny the nation its rightful place in the world.
Second, phrases such as “the People’s Will” dominate public discourse. It is a key concept. A useful way to understand it is in terms of the philosophical contest between Rousseau and Montesquieu. Illiberal democracy is justified by what Rousseau esteemed as the volonté generale, or the will of the people as a whole. …
The New Caesars do not object to democracy. They object to liberalism, which they correctly believe to be in tension with democracy, not indivisible from it. Their political vision and rhetoric emphasizes the primacy of the popular will over individual rights and freedoms.
They thus have a tendency to view liberal traditions and institutions as obstacles to pure democracy. They often argue, for example, that independent courts are interfering with the implementation of the people’s will; that the protection of the rights of minorities runs contrary to the majority’s legitimate desire to abrogate these rights; that property rights and free markets create disproportionally powerful and wealthy elites, both to the majority’s detriment and against its will; that a free press is undemocratic because it is too readily captured by elites, whose interests—not the people’s—this press then serves. They object, too, to the inherent inefficiency of liberal institutions: Checks and balances on power prevent the expeditious implementation of the people’s will, reducing government to a fractious talking shop that cannot redress legitimate grievances.
… These regimes are, at least at first, genuine democracies, where rulers enjoy real popularity.
[But if] you’ve conflated democracy with liberalism, you won’t grasp that a democratically-elected government can indeed be one to worry about.

Whatever the merits of the judicial reform proposals—and there are a few merits, here and there—Israelis are absolutely right to be wary of them, if only because they emerge from a faction that is not, by disposition, liberal. They would be fools to fail to learn from other countries’ experience:

Over time, the New Caesars bring every countermanding power center under their control, making it harder and harder to oppose them democratically. So early treatment is essential. By the time the Caesar is proposing constitutional referenda, it’s too late. If he wins, it’s game over.

Control of the judiciary is always high on the agenda, so this is suspect from the outset.

With the assistance of a compliant judiciary, the New Caesars and their corrupt entourage set the price of participation, and the price is loyalty to the regime.

Even more suspect is Netanyahu’s behavior. He barely won the last election. His rickety coalition could collapse at any moment. He took 64 seats in the 120-seat Knesset. But he is behaving in the manner of a New Caesar:

… when a politician like this wins an election, the victory is not understood as it would be in a liberal democracy. It’s understood as a comprehensive mandate for any and all of the New Caesar’s policies, without limits. Those who challenge their policies are not viewed, as they would be in a liberal democracy, as the loyal opposition; nor is a robust opposition viewed as an integral, necessary aspect of a healthy democracy. Opponents are viewed as enemies of the will of the people—that is to say, one step short of outright traitors. On this basis, all of this is justified so long as it keeps the disloyal opposition out of power. How many election cycles does it take to complete the process? Two or three is a good start. It doesn’t happen overnight. But it happens faster than you realize. And then there’s no getting rid of them.

For these reasons alone, prima facie, I was wary of these proposals even before I closely studied them. I was, however, open-minded. As I sat down this weekend to master the details, I was open to the argument that the reforms were less objectionable than they’ve been portrayed.

Having studied them, however, I’ve concluded that they’re worse.

The reforms

Here are the key elements of the proposed reforms:

The power of the Supreme Court to review and throw out laws would be weakened. A simple majority of one in the Knesset could overrule court decisions.
As of now, Supreme Court judges are appointed by a nine-member committee comprising three Supreme Court judges (including the Supreme Court president), two representatives of the Israel Bar Association, and four elected representatives. Elected politicians hold a minority vote. Under the reform proposal, the government would increase its representation on this committee and gain the decisive say; the two representatives from the Israel Bar Association would be replaced by two “public representatives” chosen by the justice minister.
The coalition intends to change the manner in which the president of the Supreme Court is elected from a seniority system—the longest-serving justice is appointed president—to a simple majority vote by the Judicial Selection Committee. This would give the government broad control over the court’s agenda.
Under current law, ministers are obliged to follow the advice of their legal advisers, who are guided by the attorney general. This would no longer be true.
As of now, legal advisors to government ministries are appointed through a formal tender process and subordinate to the attorney general (like other civil servants in Israel). This would become a political process: Legal advisors would be appointed and dismissed by the ministry’s director-general, in turn directly appointed by the minister.
The Supreme Court would no longer be able to judge legislation, appointments, or other government decisions on the grounds of “reasonability.” (This is the standard the court used recently, for example, when it ruled that Netanyahu’s appointment of Aryeh Deri as a minister was “highly unreasonable” owing to his extensive criminal convictions. Likewise, in 2007, the court ruled the government’s failure to reinforce classrooms in Sderot against missile attacks “unreasonable” and ordered then-Prime Minister Ehud Olmert to reinforce the schools immediately.)

Another reform, already been passed into law, removes the power of the attorney general to pronounce a sitting prime minister unfit for office.6

The coalition is advancing a number of other bills related to the judicial system and balance of powers. One widens the authority of the Rabbinical Court to permit it to arbitrate in civil matters using religious law, subject to the consent of both parties. One limits the ability to dissolve the Knesset through a no-confidence vote. Another makes key public service positions political rather than professional appointments. Finally, there is a bill prohibiting criminal proceedings against sitting prime ministers.

If you’d like an even more detailed explication of these reforms, try these:

Remarks

Under the current framework, all legislation is subject to judicial review by the Supreme Court, which can veto legislation if it contradicts Israel’s thirteen Basic Laws, particularly the Human Dignity and Liberty Basic Law. These laws are meant to be part of the future constitution, and in effect function as Israel’s Bill of Rights.

In 1992, Likud passed a Basic Law that put the concepts of “Jewish” and “democratic” on an equal legal footing. The law codified rights of liberty, dignity, freedom, property, and movement from and to Israel. This is what people mean when they speak of the “Judicial Revolution.” Dan Meridor, who at the time was Likud’s justice minister, recently said, “Likud approved it, was proud of it and said we’d continue it.” (Meridor is staunchly opposed to the reforms.)

Whether this was, in fact, a revolution is debatable. Here’s an argument that it was not:

The court used this Basic Law to retroactively annul laws that were seen to conflict with these provisions. It also began applying the test of “reasonability” as grounds for annulling legislation.

Advocates of reform argue the Judicial Revolution represented an undemocratic encroachment on the will of the people by an unelected elite. What’s more, they say, because the system for appointing judges gives significant weight to the Chief Justice and other members of the court, this elite is self-perpetuating.

They are correct. An independent judiciary is an undemocratic encroachment, by an unelected elite, on the will of the people. And the system is self-perpetuating.

But that is the point. An independent judiciary is only inherently troubling only if you believe the popular will should always take precedence over individual rights and freedoms. As usual, the debate has been confused by the conflation of the words “liberal” and “democracy.” Critics are appealing to the latter when the former is at issue.

The court’s ability to check the power of elected representatives is particularly important in Israel because it has a unicameral parliamentary system. The government’s survival depends upon its ability to command a majority in the Knesset. The Knesset is elected by popular vote, and in turn appoints the members of the government. Since Israel has neither an upper house, an independently-elected president with executive powers, a federal government, regional elections, nor even membership in a regional supra-governmental organization (like the EU), the judiciary is the only national institution capable of balancing the legislature and executive, which are effectively the same.

Without the Supreme Court, or with a severely neutered Supreme Court, political power in Israel would be entirely concentrated in the hands of the core of the ruling coalition—which, right now, is a half dozen-odd men. This small group of politicians would control all the levers of power. There would be no mechanism, internal or external, to limit them.

In its concentration of power, Israel is already unique among democracies. In a comparative study of the appointment of judges in democratic countries, Amichai Cohen and Guy Lurie found that Israel was the only country among all those studied that had no restriction, other than the Supreme Court, on the power of the ruling political majority in a unicameral assembly. They found that there are almost no democratic states in which judges are appointed by the ruling government without any independent vetting mechanism—the exception is Poland. They also found that there is “almost no country in the democratic world in which judges are appointed to the high court without any reference to a professional opinion.”

The transformation of legal advisors into political appointees would obviously compromise their independence. “Indeed,” Cohen and Lurie write,

there is reasonable concern that appointees will be chosen mainly for their loyalty to the minister and their willingness to provide amenable legal advice and interpretation, leading to a failure to comply with the law. If legal advisors are given the standing as political appointees, the maintenance of the rule of law in government ministries will be impaired.

That’s a recipe for corruption and patronage:

The proposed change will deal a blow to good governance in government ministries—for example, regarding the hiring of contractors or purchase of equipment, which may result in those close to the minister and their appointees being preferred on the basis of inappropriate considerations. Another example relates to the ethics of appointments in which legal advisors are asked to assess whether candidates have any personal, political, or business connections to ministers involved in the appointment, or to other members of the government.

Explainer: The role of legal advisors.

Changing the composition of the selection committee, likewise, would compromise the independence of the judiciary. Note that the current balance between political and professional members of the committee already gives elected representatives veto power over the appointment of judges, because seven of the nine members must assent to the appointment. Right now, judicial appointments require a compromise between the ruling coalition and the judicial branch. The reform would entail the complete control of the ruling coalition over the appointment of judges.

Explainer: How Israeli judges are appointed

Advocates of these reforms explicitly argue for diminishing the independence of the judiciary. I want to present their argument fairly, so let’s use their own words. Here’s an interview with MK Simcha Rothman, who’s leading the movement to curb the Supreme Court’s power:

Q: Even if the Court had indeed accrued power, surely it acts as part of the normal system of checks and balances that hedge in the legislative branch in a democratic system to check majoritarian tendencies?
A. Firstly, the Court never checks the left—only the right. That’s a function of the fact that there is little political input in choosing them to reflect the country’s political orientation. Judges are selected by their peers, which reinforces the left-leaning tendencies of the judiciary. They simply won’t select anyone but a moderately conservative judge.
Second, there are many limitations on Israeli majoritarian power. You need to build a coalition, which acts as a check. Then you need to pass a budget, and if you can’t that leads to elections. There is very little that can be done here using executive orders like the US president.
Q. Compare Israel with America. Surely SCOTUS can overrule the executive branch?
A: That’s because they have a Constitution, and the Court can’t act unilaterally to amend the constitution. Courts in general are also responsive to public opinion. Even the threat of court-packing gives the courts a hint that it shouldn’t go too far. So courts can serve as a check for a short period of time, but over the long term, they can’t stand against the will of the people.

Interpret that as you like—Americans will note that his grasp of the American system is rudimentary—but note that the court has struck down Knesset legislation only 22 times since 1997. Here are some of the most controversial of these “very left-wing” decisions:

The court struck down a law that allowed for the detention of illegal immigrants without a trial for more than three months.
The court declared that the compensation offered to Israelis evacuated from the Gaza Strip was too low, which violated their private property rights.
It struck down the mass exemption of ultra-Orthodox men from military service.

Furthermore, he seems to be arguing that an independent judiciary is legitimate in the US because the US has a constitution. Wouldn’t you think this means Israel, too, needs a constitution—as opposed to the diminishment of the independence of its judiciary? Similarly, it’s true that the “reasonableness” standard is too vague. That’s a legitimate criticism. But that doesn’t mean the standard should be eliminated: It means it should be replaced by a clear and codified one.

It’s the override clause, though, that’s so jaw-droppingly chutzpahdik. Netta Barak-Corren of the Hebrew University of Jerusalem puts it more dispassionately than I would:

The permanent override would be possible even in those rare, extreme cases of complete judicial consensus about the unconstitutionality of the law. .. a majority of 61 MKs (the sufficient majority for override under both proposals) is the minimal and bare majority that is held by every Government by virtue of its existence. If all that is necessary to override any Basic Law in Israel is a minimal coalition majority, and such a decision is not subject to any review or check, then Basic Laws have no significance. Any Government could override the fundamental principles of Israeli democracy, which will become intermittently valid in the best case, and entirely irrelevant in the worst case. The Basic Laws systematize the method of elections; the relations between the three branches of government; the status of the military; the State Comptroller; the State President; the characteristics of Israel as the nation-state of the Jewish people; its partial bill of rights; and more. The Levin-Rothman override clause states that none of these basic principles have any special validity. The sole provisions that the Knesset cannot override according to Rothman (only) are those concerning the extension of the Knesset’s term beyond its legal limits and the application of emergency regulations.
With the override clause, nothing will check the power of a bare coalition majority to increase the size of the Knesset, change the election system so that they are not general, nationwide, direct, equal, secret, and/or proportional, change or abolish the right of all or some Israeli citizens to vote or to be elected, etc. …
The novelty of the present proposals is that they remove the sole mechanism of review that has been applied to such decisions in the past—the High Court of Justice—without replacing it with any other check or review mechanism. The HCJ is not the sole possible check. It is possible to formulate other mechanisms, including electoral checks and balances. The problem is that the current proposals contain no checks and leave the state at the mercy of any ambitious coalition. (Emphasis in original.)

Critics of the reforms argue that diminishing the power of the judiciary would create a tyranny of the majority. But actually, it’s worse. “Theoretically,” writes Yitzhak Sokoloff,

the government is beholden to the public via the fact that it receives its mandate from the Knesset. However, in fact the situation is actually reversed. Since there are no regional constituencies, members of the Knesset are almost totally beholden to their parties for their political survival. Some parties, including those in the “center,” the Arab parties, and the ultra-Orthodox, have no primaries at all. Others, like the Likud, do have primaries but in reality, the standing of an individual member of Knesset is determined by the party leadership.

Critics should fear the tyranny of the minority—the minority parties that inevitably hold the balance of power in any coalition.

That’s a particularly disturbing prospect because some of these parties are no less radical than Hamas.7 (Some are Hamas, more or less, although the United Arab List is not apt to gain control of the agenda.) Parties in Netanyahu’s coalition have openly campaigned on the promise to eliminate secular legislation and transform Israel into a Halachic state (like a Sharia state, but Jewish.) Ideas like these have quite a bit of support among the ultra-Orthodox. Prominent figures such as Rabbi Eliezer Menachem Shach, for example, condemn those who “want a democratic state, a state of law and not a state of Halakha, therefore a state governed by idolatrous laws.” Some of Israel’s minority parties seek obviously illiberal aims, such as eradicating all legal rights for sexual minorities, or instituting a separate juridical regime for Israeli Arabs. Some don’t think Israeli Arabs should exist—never mind Palestinians in the occupied territories.

But these things are not negotiable in liberal democracies. A liberal polity can’t compromise on fundamental rights. If it requires a “judicial tyranny” to prevent these parties from having their way, so be it. If you understand the American Bill of Rights, you’ve already understood this.

If you believe that the only legitimate principle in governance is majority rule—without protection of minorities, separation of powers, rule of law, or an independent judiciary—then these reforms make perfect sense. Otherwise, this can only be understood as a nakedly illiberal power grab. One moreover assumes the far-right has no intention of relinquishing the power after they grab it, because they could not possibly wish to put these tools in the hands of their political opponents. (See: Israel’s judicial reforms are a double-edged sword.)

Amichai Cohen and Yuval Shany conclude a detailed analysis of the proposals in Lawfare with this warning:

The Levin and Rothman proposals would spell the end of Israel as a constitutional democracy with meaningful protections for human rights against rights-infringing legislation and with real checks on the powers of the Knesset. While the proposals nominally allow for some judicial review of legislation to continue, such review is extremely limited in scope—reducing Israel’s already-meager bill of enumerated and unenumerated constitutional rights to a bare skeleton of legal protections, and transferring to the Knesset the ultimate power to determine whether to follow constitutional law or not. Israel has many human rights challenges, its political culture is increasingly hostile to human rights and pluralism, and senior politicians have been heavily implicated in corruption. In light of these realities, dismantling the Court as a rule-of-law constraint on governmental power and as a defense mechanism for human rights and minority rights—albeit imperfect—could be disastrous for Israeli democracy.

I can find no reason to disagree.

A final point: More than 66 percent of Israelis believe the Supreme Court should not have its powers curtailed, according to a recent poll by the Israel Democracy Institute. Only 16 percent want to give politicians more control over who gets to be a judge. The claim that the public is clamoring for these reforms is false.