Supporters of Israel have been distressed by recent pictures from Israel. Some even called us from overseas asking, “What is going on?” Vast crowds demonstrating in Tel Aviv. Mobs barricading major streets, setting fires. Riot police using water cannons. Talk of dictatorship. Even of civil war.
This was due to the judicial reforms proposed by the right-wing government of Prime Minister Benjamin Netanyahu. The proposals would limit the power of Israel’s Supreme Court, increase their number and give the government the authority to appoint judges.
The left-wing opponents of Netanyahu’s judicial reforms portrayed them as an attack on democracy. They resorted to extremist vocabulary designed to frighten the citizenry and rouse the opposition: “Undemocratic,” “dictatorship,” “coup d’état.” Some even compared Netanyahu’s efforts to the Nazi Machtergreifung (seizure of power) in the 1930s.
This is the situation as it stands in May. Since the situation is in flux, it is certain there will be further developments in coming weeks.
The Supreme Court of Israel is known as the most powerful, most independent high court of any nation in the Western world. In the mid-1990s, the court independently began to exert its authority beyond its previous purview. A pattern of judicial activism followed in which the Supreme Court involved itself not only in matters of rights or civil liberties, but in actual government policy. In an extraordinary move, it applied the principle of “reasonability” to government decisions, thereby granting itself a legislative veto over any policy.
Criticism of the court’s overreach at the time was immediate. Such criticism was thwarted, however, by the quick removal of any justice officials who dared mention the need for reform. The judicial fraternity quashed any internal opposition.
Now, Netanyahu’s coalition has accused the Supreme Court of acting like an unauthorized second government that simply presumed it had authority to negate any and all decisions of the elected government.
Additionally, the coalition proposed changing the method of selection of Supreme Court judges. Currently, the Supreme Court and members of the judiciary have the majority voice on the selection committee. Basically, the judges pick the judges, guaranteeing the homogenous legal and political outlook of its successive members. And from the above, it is clear the Supreme Court has an agenda. Netanyahu’s proposal would have given the government the majority voice on the selection committee, a practice in line with the USA and most Western European and OECD nations. Even in the few nations who don’t allow government appointees, none allow the highest court to overturn legislation as the Israeli Supreme Court has self-arrogated.
While the Israeli Left decried Netanyahu’s move as an onslaught on democracy, the opposite is actually the case.
Most people would agree that democracies require a system of checks and balances to prevent abuses of power by any branch of government, be it the executive, legislative or judicial branch. The Left claims Netanyahu’s reform would create an imbalance of power, thereby threatening Israel’s democracy. But that claim ignores the fact of the judicial power grab by the Supreme Court during the past thirty years. There has been no check on the Supreme Court’s power. The Court has been taking advantage of that imbalance, doing exactly what the Left is now accusing Netanyahu of doing.
Ironically, it is precisely the proposed reform that restores representative democracy to Israel. Power is returned to the 120 elected members of the Knesset, or parliament, that had been usurped by an unelected panel of 15 judges, effectively an elitist oligarchy.
Former Harvard University Law Professor Alan Dershowitz, a constitutional law expert, and a self-professed liberal Democrat, said: “Even if all of the reforms were to be enacted…it would turn Israel…into Canada, New Zealand, or Australia, or many European countries….Reform will not undercut democracy. In some respects, it would make Israel more democratic.”
There has been a political shift in Israeli society. In the last five elections, right-wing parties received more votes than left-wing parties. Israelis have become more conservative. Left-wing parties see their future as bleak. In fact, some former major left-wing parties are today polling among the smallest.
With their slide downwards at the ballot box, leftists pinned their hopes for fulfilling their agenda on the highest appellate court in Israel. Through non-governmental organizations (NGO’s), they regularly challenged government policies by appealing to a sympathetic, traditionally left-leaning Supreme Court. Netanyahu’s reform would have ended these backdoor maneuvers by the Left.
In an ongoing, well-financed and coordinated campaign, using the most-extreme language, Israel’s Left came out against reform, demonizing Netanyahu and his proposals. Activists spoke of civil war, armed resistance and intimated assassinations.
The Israeli news media, as in most of the Western world, are predominantly left-wing and lent their services to the cause. Coverage was unabashedly and consistently anti-reform, even though all polls showed 60 percent of the population favored reform (not necessarily Netanyahu’s version, but some reform). School officials closed schools; the Histadrut (the largest workers’ union) called a general strike; some military reservists didn’t show up for training (they were technically absent without leave [AWOL]). Woke progressive advocates of all sorts joined the fray. LGBTQ campaigners too, as Gay Pride flags peppered the sea of Israeli flags at anti-government demonstrations. An amalgam of left-wing activists joined to thwart Netanyahu’s reforms.
Even US President Joe Biden publicly advised Netanyahu to end the reform campaign, thereby interfering in Israel’s domestic politics, adding fuel to the protests. Further, it caused a crisis in Israeli-US relations. How ironic. It’s a case of “rules for thee but not for me,” since Biden himself had considered tampering with the US Supreme Court. He commissioned a study about “packing” the Court, that is, expanding the number of justices on the Court to guarantee left-wing decisions and the progressive agenda for years to come. The US Vice-President Kamala Harris likewise has spoken publicly in favor of packing the Court with left-wing justices.
Though some major counter-demonstrations in favor of reform also took place, for three months, its chief proponent, Netanyahu himself, did not speak publicly about the reform. There’s a simple reason for that: Israel’s attorney general, part of the judicial fraternity, forbade him from speaking publicly in favor of the matter. Netanyahu had to recuse himself, the attorney general said, because he stood to benefit personally from its passage, a conflict of interest. None of the opponents of reform, including the attorney general and the judiciary, were muzzled in this way. Indeed, the current President of Israel’s Supreme Court, Esther Hayut, gave a fiery speech against reform in January 2023. How is that speech not a conflict of interest?
Professor Dershowitz commented that the anti-reform demonstrations are not about judicial reform. Most of the opposition to the reform is simply that a right-wing government is proposing it. “If exactly the same proposals were being made by a centrist…or left-wing government, no one would notice….There would be no demonstrations.”
The mere mention of soldiers not showing up for duty in protest was sufficient for many in the military establishment to warn the government to back down. Insubordination was viewed as a threat that could affect Israel’s defensive preparedness. Though the majority of the population was supportive of reform, many started to waver and began to advocate for more dialogue before continuing with the proposed reforms.
Woke, progressive militancy and shrill intimidation has worked in American politics in recent years. The Israeli Left borrowed a page from the American Left’s playbook and caused great consternation. As a result, Netanyahu temporarily froze the reforms.
The protests against reform were not about democracy at all, but rather about loss of power and influence. It is ironic that the proposals would, in fact, achieve a more democratic political system in Israel. What people saw on their TV screens was more a debate over Left versus Right; secularism versus religion; woke progressivism versus traditional values and morality; the same battles that are being fought in many Western nations.
To see it happen in Israel should not cause confusion or despair. It is even more a matter of sincere prayer. Our ideal should be that of the Psalmist, “Behold how good and how pleasant it is for brothers to sit together in unity” (133:1-3).