The Struggle for Israel’s Democracy
GADI TAUB
Faced with the prospect of judicial reform, Israel’s progressive elite and its American allies are threatening to tear the country apart
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Tens of thousands of Israelis gather at Habima Square, protesting Prime Minister Benjamin Netanyahu’s government judicial reform plan. Less than three weeks in office, Netanyahu’s right-wing government has launched proposals to weaken the Supreme Court by giving parliament the power to overturn court decisions with a simple majority vote, to give parliament control over the appointment of judges, and to reduce the independence of legal advisers to the government.EYAL WARSHAVSKY/SOPA IMAGES/LIGHTROCKET VIA GETTY IMAGES
The Israeli election in November was, in large part, a referendum on the Netanyahu trial. The jury came back with a clear verdict: not guilty. Israelis, or at least enough of them, became convinced that the trial was a political affair, not a legal one: Israel’s left-leaning elites had given up on beating Netanyahu at the ballot box, and so turned to other means to expel him from politics.
But the majority of Israel’s voters did more than acquit Netanyahu in the court of public opinion. A majority of Israeli voters made clear that they will no longer put up with the hollowing out of Israel’s democracy by the administrative state—judges, law enforcement officers, legal advisers and the bureaucracy in general will have to stop substituting their own preferences and dictates for those of the Israeli electorate.
The Netanyahu trial and bottom-up demands for judicial reform have thus melded together into a hugely consequential showdown between patricians and plebs, between the old elites and the public at large, between the court and the elected branches of government—and at root, between the power of the administrative state and democratic politics. It is, as the press is now screaming in Israel and outside it, a struggle over soul of Israel’s democracy. Only the press has got it backwards. Yariv Levin, Netanyahu’s new justice minister, is not out to destroy democracy. He is out to restore it.
Back in 2017, a bestselling conservative Hebrew book articulated the growing frustration on the right in its title: “Why do you vote right and get left?” The book, by journalist and former Netanyahu aide Erez Tadmor, made the answer clear, and it became the operating manual for a new generation of Likud members. The reason the right never really rules, Tadmor argued, is that the left controls the important power centers outside of electoral politics: the mainstream press, the arts, academia, and above all the judicial system and its auxiliaries in law enforcement and Israel’s powerful bureaucracy.
At the summit of the judicial-bureaucratic power structure, which exists outside the purview of the consent of the governed, sits the Supreme Court, which in Israel holds powers more awesome than any judiciary in any Western democracy. In the court’s own view, there are literally no limits to its authority. It recognizes no limits on standing, and it exercises judicial review over any government action and any and all legislation, including judicial review of what the court itself declared to be Israel’s constitution—our so-called “Basic Laws.”
The Netanyahu trial and bottom-up demands for judicial reform have melded together into a hugely consequential showdown between patricians and plebs.
While the fact that Israel’s constitution has become whatever the Supreme Court declares it to be at any given moment may tickle the hubris of some foreign lawyers and judges, it is blatantly contrary to both the rule of law and to democratic practice. Imagine a U.S. Supreme Court debating the constitutionality of articles in the U.S. Constitution and overturning laws passed by Congress based on how “reasonable” the judge believes them to be, while also vetoing the appointment of new justices, and you’ll come close to understanding just how far the doctrine of unelected judicial supremacy has come in Israel, and why a clear majority of Israeli voters have had enough.
In his previous administrations Netanyahu was careful not to pick a fight with the country’s judicial oligarchy, preferring to spend his political capital on other subjects—primarily Iran and economics. He assumed, based on experience, that Israel’s judicial oligarchy would continue to abide by an unwritten rule: If a politician doesn’t try to reform the justice system, they will leave his person—though not necessarily his policies—alone. The flip side of this arrangement was, in any case, more obviously true: Try to advance a reform, and you almost always end up with a criminal investigation, often one that was fabricated, as in the cases of Yaacov Neeman and Reuven Rivlin, both of whom were among those barred from serving as justice ministers by contrived investigations that ended up with nothing. The judiciary had its own praetorian guard in the Office of the State Attorney, which cultivated a culture of promiscuous yet slow-moving investigations that made sure politicians didn’t step out of line.
After Netanyahu won his fourth term in 2015, the despair on the left reached a fever pitch, and the various centers of left-wing power began to clamor for Netanyahu’s head. The press led the way with investigative pieces accusing Netanyahu of corruption. Despite the speculative nature of these investigations, law enforcement pursued them with new vigor, leading, finally, to indictments.
The indictments had a paradoxical effect on the struggle for power between bureaucracy and democracy. First, they showed Netanyahu that the judicial oligarchy posed a direct threat to his political fortunes that could not be reasonably abated through the usual program of mutual noninterference. Second, the attacks by the judiciary on Likud’s undisputed leader had an energizing effect on his voters.
While removing a justice minister can be seen as a peripheral event, taking down a prime minster, and thus overturning the results of a national election, is a wholly different matter. It can fly, even with his supporters, when a prime minister is clearly proven to be corrupt, as was the case with Ehud Olmert, who ended up serving jail time. But when more than half the public feels its standard-bearer was framed and its ballots effectively shredded, it is unlikely to just accept that result. So both Netanyahu and his voters came to see, more clearly than before, the severity of the problem and the urgency in restoring the balance between the branches of government.
But the indictments and later trial also threatened to neutralize Netanyahu’s ability to act. It is difficult for a prime minster to reform the judicial system and put checks on politicized law enforcement when he himself is facing a trial. How would he escape the obvious suspicion that he is trying to save himself and is willing—as the left dramatically phrases this talking point—to “smash the justice system just to save his own skin”? True, judicial reform is unlikely to interfere with an ongoing trial, except maybe by making the judges more hostile. But perception is crucial here, and so Netanyahu seemed caught in a bind. The question came down to this: Will voters support a reform, or will enough of them see it as cynical, self-serving move on his part?
Last year’s election turned precisely on that question. And the voters gave a clear answer.
First, Likud’s base issued its verdict: The most recent round of Likud primaries drove almost all vocal critics of the judicial system up the party’s list. Other right-wing parties then made judicial reform a condition for joining Netanyahu’s coalition. All these parties, each crucial to the existence of the coalition, represent minority sectors—national-religious, ultra-Orthodox and Mizrahi traditional and Orthodox—that had been shunned at one point or another by a court that purports to protect minorities against the tyranny of the majority. Judicial reform galvanized support for the right and gave it a clear majority in the Knesset: 64 seats in the Netanyahu block versus 56 in the Never-Bibi block, including the anti-Zionist Arab parties, most of which historically do not join coalitions.
Netanyahu is a savvy politician, and he seemed to have realized the enormity of the wave of public anger against Israel’s imperial Supreme Court. He likely calculated that he could either ride that wave or be drowned under it. And when it became clear his own electorate would not forgive him if he procrastinated, he went against his careful and conservative character—and his personal legal interests—and put his weight behind judicial reform.
Until the ministerial appointments were announced, many on the right were still pessimistic. Netanyahu never touched the judicial oligarchy before, they said, and he’ll find a way to avoid it this time, too. More worrying, some said, he will use public anger as leverage to intimidate the court with the specter of reform, then drop the reform in exchange for a plea deal.
Both sides of this argument, though, agreed on what the litmus test would be. Yariv Levin, an introvert with a reputation for honesty and calm determination, came second after Netanyahu in the Likud primaries. He is a lifelong critic of judicial activism. Netanyahu’s intentions, everyone knew, would be made clear by this test: Would he, or would he not, appoint Levin to be minster of justice?
At the end of December, he did.
Netanyahu is a careful man, and a cautious pragmatism has been the hallmark of his five previous terms in the prime minister’s office. However, it now seems he will stand behind Levin’s plan to break the rule of the judges. It also goes without saying that the oligarchy is not going to take this lying down. Hence the war drums beaten wildly by the chorus of the press, academia, NGOs, leftist politicians of every stripe, and virtually every other bastion of a declining ruling class. Petitions, propaganda videos, interviews, nonstop coverage, demonstrations, opinion pieces, and more, all happily amplified by an American mass media that proudly announces its affiliation with the Democratic Party and sees Netanyahu as an ally of the Republicans.
Longtime President of the Supreme Court Aharon Barak—jokingly referred to on the right as the “President of the Deep State”—emerged from retirement and gave a series of threatening TV interviews. He declared, strangely, that the announcement of the reform by Levin was “illegal” and that Levin himself is a “criminal”; that he would have resigned if he was in office and the reform was enacted; and that he “regrets that Minister Levin didn’t ask me first,” as if elected representatives need his permission to carry out their policies. He called the reform “a string of poison beads.”
The current president of the Supreme Court, Judge Esther Hayut, should not be publicly criticizing proposed legislation. Nevertheless, she chimed in with a combative speech of her own, giving no indication that she understood that a majority of Israelis have a problem with her court.
A petition by former attorneys general and state attorneys (many of whom were also Supreme Court judges) followed. The reform, they said, will “destroy” the Israeli justice system. Cheered and promoted tirelessly by the press, and financed by U.S.-based NGOs such as the New Israel Fund, demonstrations were orchestrated and a permanent struggle was announced, apparently modeled on the campaign by American elites to remove Donald Trump from the White House. Professors and left-wing think tanks rushed to provide talking points explaining to the public why the reform would spell the end of Israel’s once-flourishing democracy.
As if to prove what many on the right have been saying—that there is an ethnically and racially tinged element to the struggle between the court and the other branches of government—the court moved to force Netanyahu to dismiss his minister of the interior, Aryeh Deri, the leader of the Orthodox Mizrahi party, Shas. Deri had long ago been convicted for bribery, and returned to politics after the required chilling period of seven years. He was then investigated for more than six years, ending with a charge that turned out to be a minor technical income tax reporting violation. He ended this long and arduous legal procedure in a plea deal, which did not include a formal commitment not to return to politics yet was nevertheless granted in a context that led the judges to believe he planned to retire. No one protested Deri’s decision to run in the last election at the head of his party. But then, after Netanyahu formed a government dependent on Shas, the relevant petitions materialized right on cue, and the Supreme Court then disqualified him, after the reform was announced, on dubious legal grounds.
Knocking out Deri—a key member of Netanyahu’s coalition—was widely perceived as a political move on the part of the court: an attempt to submarine Netanyahu’s new government by removing a key member, hoping this would force Netanyahu to choose between defying the court or destroying his own government. The target of the court’s action, Deri, could not have been more symbolically vivid to the supporters of the reform: Here was the leading Mizrahi and religious politician in the country, ever hounded by the justice system, being disqualified by an almost exclusively Ashkenazi panel, on grounds that demonstrated, once again, the plasticity of the legal arguments the court uses to subdue the cabinet and the Knesset. Some of the judges ruled against Deri using the vague “unreasonableness” standard, which the reform is calling to abolish (other causes were also cited, none of which stood on particularly solid legal ground).
Deri, however, is a seasoned politician and he swallowed the bitter pill without withdrawing his party from the coalition and bringing down Netanyahu’s government, probably figuring that the reform is the best long-term bet in the struggle for democratization, as well as for his own political prospects.
The chorus of anti-reform voices in Israel is now calling for more than just protest. Many, including leaders of the political opposition that lost the last election, are demanding civil disobedience, including a strike by the civil service. Here and there, threats of violence were delivered, thinly veiled as warnings against such a possibility. The chorus also spilled out of the Israeli press onto the international scene. The rallying cries of Haaretz editorials found their way to the pages of The New York Times, where the redoubtable Thomas Friedman called on President Biden to save Israel’s democracy from the forces of darkness, apparently oblivious to contradiction of calling on a foreign leader to force unpopular
The protest movement against judicial reform in Israel is not an effort to save democracy. Quite the opposite: It is an effort to save the power of the ruling progressive elite from democracy.
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To be clear, the protest movement against judicial reform in Israel is not an effort to save democracy. Quite the opposite: It is an effort to save the power of the ruling progressive elite from democracy. For anyone willing to look at the details, it should have been abundantly clear that the reform would, in fact, begin to fix the anomaly of the Israeli juristocracy and make some important strides toward restoring a reasonable balance between the branches of government, moving Israel closer to the norm among Western democracies.
The reforms propose to:
- Put an end to the untenable situation in which the legal counsels to the executive can block the implementation of ministerial policies (and also hold veto power over the prime minister’s decisions and the policy of the government as a whole);
- Restrict the ability of judges to strike down regulations, policies or appointments to what is illegal, and forbid them to annul what is legal, based on their assessment of “reasonableness” (i.e., the personal preferences of the judge);
- Legitimize the power grab in which the court declared Israel’s Basic Laws to be articles of a constitution-in-the-making, by granting them constitutional status and legalizing judicial review of laws based on these Basic Laws;
- End the court’s outrageous drift toward claiming judicial review over Basic Laws;
- Limit judicial review of laws to the full panel of all Supreme Court judges and only by an 80% majority of the panel (which for now should not be hard for the court to muster, as that is about the proportion of progressive and activist judges currently in the court);
- Grant the Knesset the power to overturn a decision to strike down a law with an absolute majority of its members (61); the reenacted law will be valid for only four years unless ratified by the next Knesset;
- Allow the court to prevent the Knesset from overriding its decisions by striking down legislation unanimously, in which case only the next Knesset will be able to reverse the court’s decision (effectively returning the question to the voters);
- Change the composition of the committee that appoints judges to break the veto power judges have on the appointment of their colleagues and give the coalition an advantage in the process. Given the rate at which vacancies come up, it will be a while before the overwhelmingly progressive composition of the court will be changed, and since coalitions come and go, the assumption is that each will get its shot at appointing judges and that the judiciary will eventually be relatively balanced.
All this is surely a step in the right direction, but it is hardly enough. Justice Minister Levin announced that this was only the first phase of his planned reform, with the rest to be revealed later on. One should hope that the next part—or parts—will include restoring the now-docile internal affairs department of the police to its former authority, along with a functioning mechanism for oversight of the Office of the State Attorney, which has amassed J. Edgar Hoover-style power, the destabilizing effects of which we now see unfolding before our eyes.
Far from “smashing” the justice system, the reform is likely to restore the respect Israelis once had for their Supreme Court, which they lost ever since the court has tried to dictate its progressive agenda from the bench, against the will of the deplorable citizenry. In a deep and important sense, the reform will complete the move began by Menachem Begin, who drove Labor from power in 1977 but left the bureaucracy in Labor’s grip. The old left-leaning Ashkenazi elite has thus managed to prevent full democratization, a task that has now fallen to Netanyahu.
Netanyahu’s voters have made their will clear: He will either shoulder this burden, or else lose his base. It is now up to the prime minister to steer this ship on the course to democracy. It may prove to be his toughest challenge yet. The threats of civil disobedience, even of civil war, seem far-fetched—for now. But you can never tell how far a desperate elite that is able to muster support from outside the country will go to keep from losing its grip on power.
Gadi Taub is an author, historian, and op-ed columnist. His Hebrew bestseller The Rise of Antidemocratic Liberalism: Israel, the United States, and the West is being translated into English.
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