Protests in Israel on March 4, 2023. Amir Terkel/Wikimedia.
I was happy to read Evelyn Gordon’s essay on the need to reform the Israeli judiciary, one of the best explorations of the issues at stake in a perhaps unprecedented moment. Beginning with her seminal articles in Azure in the 1990s, Gordon has been one of the foremost analysts not only of the comings and goings of Israel’s politics but of the fundamental characteristics of its regime. This latest essay lives up to her own very high standard.
There’s much I agree with—and disagree with—in Gordon’s essay, though I should state frankly that I oppose the proposals for reform currently before the Knesset. But I’ll leave reflection on the nuts and bolts to legal scholars. I would like instead to focus on the politics of judicial reform, for the story of how Israel arrived at the current impasse illuminates the ways in which this impasse is the result of a deeper crisis of the political system itself.
Gordon does an excellent job tracing the outsized role of Israel’s Supreme Court since Aharon Barak’s judicial revolution of the 1990s, and the discontent with the court that has been growing on the right since then. But why now? After all, Benjamin Netanyahu’s Likud has been in power since 2009, excluding the interregnum of last year. During that time, Netanyahu, fanatically reformist on the diplomatic and economic fronts, showed no appetite for any major social or constitutional reform, and paid no political price for it. Indeed, Netanyahu fundamentally accepted the status quo on social and constitutional issues—wisely, in my view, since sometimes it’s better to leave bad enough alone if the alternative is worse.
Incidentally: just how bad was that status quo? Gordon’s examples of Supreme Court overreach are well taken. But such overreach did not inhibit Israel’s extraordinary run of political, economic, and cultural success over the last decade, even though the court’s understanding of the scope of its powers has grown steadily over this time, at least in theory. In practice, an informal balance of terror had been achieved between the court and the Knesset. Though arrogating to itself powers of interpretation and perhaps even the authority to cancel Basic Laws, the court had been constrained somewhat for fear of whipping up popular sentiment against it. This is hardly a Madisonian separation of powers. But it constitutes a species of separation of powers all the same.
Indeed, I do not believe it was inevitable that this balance would break down. Why did it? Netanyahu’s opponents would say that the prime minister disrupted this tenuous arrangement because of his ongoing corruption charges and a desire to neuter the court. But that explanation is hard to square with the fact that Netanyahu reportedly first sought to form a national unity government with Benny Gantz (which would never have favored judicial reform) after the last election before settling on a narrower right-wing/religious government. Gordon’s alternative explanation is more persuasive: “Netanyahu had no choice but to form an exclusively rightist/religious coalition. This also explains why coalition MKs are treating the reform as a matter of such urgency: they recognize this as a political opportunity that may not soon return.”
In other words, the Netanyahu reform agenda is better thought of as a project of a small minority that, because of the all-too-typical weakness of this government, has managed to capture the majority. And that is no way to introduce major constitutional reform in a country that hopes to operate by the consent of the governed. Thus, to partisans on the other side, it appears like the effort of an impassioned minority to impose its will on the country at large.
And this view has proved hard to refute. Judicial reform had not been a major plank of the Likud party before the last election. Opposition to the court has galvanized right-wing voters for a long time, but it hadn’t produced a political agenda. In the 2022 election, Netanyahu did not make restricting the power of the Supreme Court a major theme of his campaign. Fighting inflation, the incompetence of Yair Lapid, peace with Saudi Arabia, blowing up buildings in Iran: those were the main planks of his platform. Doubtless he’d prefer to be spending his time on those matters now. Indeed, Netanyahu’s lack of interest in this effort has been one of the most interesting aspects of this story.
In the grand scheme of Israeli politics, judicial reform has historically been a minority concern, promoted mostly, though not exclusively, by niche political actors who have long been devoted to this issue—in some cases representing a very small portion of the electorate. MK Simcha Rothman is a good example: he’s been focused on judicial reform for years, well before he entered the Knesset, and realized that the last election left him with a chance to pursue it. Although religious parties of various stripes, which have tended to be most concerned about the judiciary, have been growing in recent times, together they represent only slightly more than 25 percent of the Knesset.
Israel’s system of coalitions has always meant that governments have short shelf lives, and are at constant risk of being brought down by the smaller parties. For reasons of personnel and policy, that tendency has become the dominant fact of Israel’s politics over the last several years. Minority parties are as powerful as ever before. One of those minority leaders, Naftali Bennett, became prime minister even though his party had won only seven of 120 seats in the Knesset. Bennett’s short-sighted but successful gambit no doubt provided a powerful precedent for leaders of other small parties: they could get not only subsidies for their voters but the vision of the state that they want, without having to persuade a majority of voters to come along.
The most vehement critics of the court often speak of a judicial dictatorship, asking why fifteen unelected judges should be able to decide political matters that ought to be resolved by the people and their political representatives. Defenders of the court view it as a bastion against the tyranny of the majority and a defender of minority rights. I would say that the real problem lies with a different minority: Israel faces a kind of dictatorship of small parties in the Knesset, whose influence over the larger parties in the coalition is increasingly making all government unstable.
Throughout his time in office, Benjamin Netanyahu has been extremely adroit at managing coalition partners, catering to their most pressing concerns without subsuming the national agenda to their ideological wants. For whatever reason, the old formula has not worked this time. There’s a reason why many Likud rank-and-file voters, to say nothing of supporters of the parties outside the government, have been leery of judicial reform, as well as of other policies advanced by the ḥaredi or religious Zionist parties in the current coalition. This isn’t what they signed up for.
To be sure, the minority origin of a reform idea condemns neither its substance nor its political prospects. Many successful political programs or ideas, such as the supply-side economic movement of the 1970s in the U.S. and UK, began as niche ideas of a few intellectuals and politicians.
But judicial reform is not a mere modification of the tax regime, rather it touches on fundamental questions of the organization of the state. A serious campaign of national persuasion would have to be undertaken to win broad support for its political logic. Proponents of the reforms have complained that the attorney-general has prevented Netanyahu from speaking directly on the matter, since, owing to the corruption charges against him, he has a “conflict of interest.” But how could there not be a plan for dealing with this massive, but wholly predictable, political liability?
Aharon Barak had assiduously laid out the theoretical groundwork for his judicial revolution. And he had found precursors in decades of Supreme Court judicial construction. That change was indeed brought about, as Evelyn Gordon says, without majority electoral support. But Barak and his disciples had at least endeavored to persuade “enlightened public opinion” to support what they were up to. And they in part succeeded. A comparable intellectual and political effort would be required if one were serious about rolling back Barak’s revolution. Far from preparing the public mind for this major change, the reform agenda was not a priority for Netanyahu or most of his party.
At the time of writing, it is hard to predict how this spiraling crisis will unfold. But even if a compromise over the judiciary is reached, the deeper fissures in the Israeli order remain. Israel’s parliamentary system, the core of its regime, produces weak and distracted governments that are increasingly liable to capture by minority parties, who have every electoral and political incentive to indulge their most radical plans. This, in turn, seriously damages the cause of effective government as well as the legitimacy of the system itself. And, in this case, I fear the status quo is genuinely unsustainable.