As I write these words, hundreds of thousands of Israelis have spontaneously taken to the streets after news broke that Prime Minister Netanyahu ousted the minister of defense, Yoav Gallant, who had called to halt the government’s judicial reforms. This is a moment of great uncertainty and concern for Israel.
At a moment like this, the details are often neglected for the big picture. But every big picture includes a few details that hold special importance. In my response to Evelyn Gordon’s eloquent and carefully argued essay, I will focus on the most important details of the Levin-Rothman plan—and Gordon’s analysis thereof—and then take a step back to view the big picture.
In her essay, Evelyn Gordon lays out the case against Israel’s Supreme Court as it is currently constituted, and in favor (with some caveats) of the reforms proposed by Simcha Rothman and Yariv Levin. I am in agreement with several of her key arguments, but I’d like to focus here on three of the key points I believe she gets wrong. The first concerns appointments to the Supreme Court; the second concerns the relationship between the appointments and the proposed new rules for judicial review; the third concerns her argument that the Rothman-Levin reforms will set the clock back to the status quo ante 1995. This desire to un-ring the bell—and its disconnect from current reality—is, I believe, why we are facing an unprecedented crisis in Israel.
Before turning to any of these points, it’s necessary to understand that Israel at present suffers from not one but three serious constitutional problems—something that becomes clear from reading Gordon’s essay alongside Neil Rogachevsky’s incisive response. These are: the outsized power of the Supreme Court, the weakness of a unicameral legislature which is controlled by a coalition government, and the instability of the coalition government through the distorting effects of the coalition system. In other words, all three branches of government suffer from structural defects. Gordon is mostly correct in her diagnosis of the judiciary, but, like Rothman and Levin, her focus on this branch to the exclusion of the others points to measures that are apt to aggravate the defects of the executive and legislative branches rather than remedying Israeli separation of powers. I’ve discussed these issues at length elsewhere, and I will return to them presently.
Let’s begin with the aspect of the plan that has caused some of the most intense controversy: the restructuring of the judicial appointments committee. To reformers, this is the part that is most important. To defenders of the current system, and to those like myself who acknowledge the need for reform but object to many of the Levin and Rothman proposals, it is the most troubling. At present, Israel’s judges are chosen by a nine-member committee consisting of: the president of the Supreme Court; two other justices, selected by the Court; two members of the Knesset, chosen by the Knesset as a whole; the justice minister along with another minister, selected by the cabinet; and two members of Israel Bar Association, elected by the organization’s entire membership. This arrangement thus gives four seats to the elected branches, and five to judges and lawyers.
To Gordon, this situation means that “the justices command an absolute majority, because the Bar representatives almost always side with them.” For a long period, this was correct: the committee cemented the hold of a homogenous legal elite on judicial appointments; even if the four elected members of the committee opposed a candidate, they were rendered powerless in the face of the legal professionals. Yet Gordon neglects to note that this situation changed fundamentally thanks to a modest reform instituted in 2008 by then-Justice Minister Gideon Sa’ar, who at the time was a member of the Likud, and who joined the opposition in 2019. The Sa’ar reform required a seven-out-of-nine majority for appointing Supreme Court justices. Thus, instead of one based on an absolute majority, today’s appointment system is based on broad agreement created by two veto powers—that of the Court and that of the coalition government.
Since the 2008 reform, the composition of the Court has gradually changed. The efforts of the former justice minister Ayelet Shaked and civic organizations like Simcha Rothman’s Meshalim led to the appointment of Israeli jurists who reject the ideas of unbridled judicial power introduced by Supreme Court President Aharon Barak in the 1990s. Of the fifteen justices currently on the court, all but one were appointed since 2008. Six of these fourteen are considered conservatives, six liberals, and two swing voters. Of the last two, one is simply too recent an appointee to have a judicial record, while the other has proved himself to be a bona-fide moderate.
The change in composition has had concrete effects. Take for instance the removal of the doctrine of standing—the principle that to bring a lawsuit one must be demonstrably affected by the law in question—which was nullified by Barak and his predecessors, and rightly seen by critics of the Court as one of the major sources of its overreach. Since his appointment, Justice Noam Sohlberg has reintroduced the requirement of standing, and in more than one case has convinced some of the liberal justices to go along with him.
Alex Stein, a former law professor, is another pertinent example. Since joining the Court in 2018, Stein has developed new interpretational theories that are strikingly different from the purposive interpretation advocated by Barak and his acolytes, which resembles in outcomes what Americans call “living constitutionalism.” Instead, Stein has pioneered a method of interpretation that adheres closely to the text of the law under consideration, akin to the originalist school of American jurisprudence. Justice David Mintz (appointed in 2017), meanwhile, has repeatedly emphasized that the Supreme Court does not have the authority to review Basic Laws or amendments to them. He has even cast doubts on the doctrine of judicial review altogether. And these are just a few examples of how, in the wake of the Sa’ar reforms, the Court has been gradually moving away from the excesses that its critics have long complained of.
In fact, the reformers and their allies tend to draw their most compelling evidence of Supreme Court overreach from the 1990s and the first decade of the 2000s. But now the Supreme Court is no longer ideologically homogenous, and it no longer has the ability to replicate itself in perpetuity. Moreover, the broadening camp of conservative justices may now start favoring more conservative appointees. In light of this dynamic reality, there is no justifiable reason to subordinate the appointments entirely to the governing coalition, as Levin and Rothman seek to do.
The prospect of the coalition government having absolute control over judicial appointments is particularly concerning in tandem with another key part of the plan, which involves changing the rules by which the Supreme Court itself operates. Unlike its American counterpart, Israel’s high court generally does not decide cases as a unit. Usually, cases are decided by a bench comprising anywhere from three to thirteen justices. The reform plan would require that only the court in its entirety could review legislation, and that invalidating a law would require a supermajority of twelve out of fifteen. Thus four justices alone could uphold any action taken by the government. Lo and behold—four is exactly the number of seats that the current government will be able to appoint during its tenure.
Together these two aspects of the reforms work like the two blades of a pair of scissors. In the Israeli system, justices once appointed remain in office until they reach the age of seventy, at which point they must retire. We can therefore anticipate the number of vacancies that will arise during the current coalition’s tenure. If the reforms are passed and the coalition fills three vacancies immediately, the new justices, plus only one of the conservative justices already on the court, will be able to prevent any legislation from ever being overturned. Once the fourth is appointed, the minority rule of the coalition appointees would be solidified. Thus the two blades of the scissors will come together and cut off any checks on the coalition’s power. Such a change wouldn’t restore the balance of power between the branches of government, but tilt it radically in favor of the executive.
There is also another, broader problem with Gordon’s case for judicial reform that goes beyond the details of any particular proposal. She writes that “the reforms are largely meant to restore the legal situation to what it was during Israel’s first several decades of existence (a time when no one questioned the country’s democratic credentials).”
This is a common argument among reform supporters. But the big picture is that no set of reforms, no matter how constituted, can achieve that particular goal. The Jewish state is approaching its 75th anniversary. If we follow Gordon in taking 1995 as the year that the judicial revolution was completed, more than a third of Israel’s history has elapsed since. Israel has changed dramatically—demographically, economically, and politically—since the 1990s. One cannot simply undo Aharon Barak’s judicial revolution any more than one can unscramble an egg.
One example of the impossibility of restoring the status quo ante are changes in political culture and norms. Formally the Knesset has always been able to enact any Basic Law it wants with only a simple majority, without any special procedures. But as a matter of political culture, for most of Israeli history no Knesset ever passed a Basic Law without a broad consensus in its favor. From 1958, when the Knesset passed the very first Basic Law, regulating its own procedures, until the passage of the Basic Law: Human Dignity and Liberty in 1992, every Basic Law was passed—usually with a majority of 80 or 90 MKs—after a lengthy, rigorous, and exhaustive process, typically lasting several years and sometimes over multiple Knessets.
Gordon points to the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation—both enacted in 1992 by slim majorities—as exceptions, but she overlooks two very important details. First, the votes for the laws took place when many MKs were on the campaign trail, and therefore not present to vote. Second, neither was passed in the face of vehement opposition, but with only about twenty of 120 MKs objecting. Most of the absent MKs simply calculated that the laws would pass even if they were absent, and felt that they could afford to miss the vote.
More importantly, the Knesset was embarrassed by these slim majorities, and in 1994 voted to amend both Basic Laws simultaneously. During the deliberation over these amendments, MKs stated explicitly that they wanted to create another opportunity to vote on these laws because the slim majority present at their passage detracted from their legitimacy. The 1994 Knesset did something else at the same time: it formally recognized the Supreme Court’s power of judicial review, with 80 out of 120 votes in favor of doing so. Only a full year later, in 1995, did the Supreme Court use this power to review a law on the grounds that it conflicted with the Basic Law: Human Dignity and Liberty.
But these norms have since deteriorated. In the past decade, Basic Laws have been amended with less than 72 hours of deliberation, often just to make it possible for an incoming coalition to divvy up cabinet posts in a way that satisfies the various competing interests of its members. And now the coalition is seeking a fundamental change in the relationship among the branches of government in the span of two months, in the face of intense opposition, relying only on its slim majority (64 MKs).
Nothing like this would have happened in earlier decades, before 1995. Restraining the judiciary won’t restore the sorts of unwritten norms that were once in place, and the result will be governments that are restrained neither by the court nor by custom.
Something similar has happened with the role of small parties in the governing coalitions. Small parties have always been part of the Israeli system. Never has a single party won a majority of the seats in the Knesset, so the ruling party has always depended on an alliance with smaller parties. But pre-1990s, the small parties didn’t ask so much. They focused on fulfilling limited and usually modest objectives that were important to their constituencies. That gradually changed during the 2000s and in the past several governments reached new heights. Small sectoral parties have used their leverage to make ever-larger demands, including asking for major ministries and enormous budgets. In the current government, two-and-a-half of the four most important cabinet positions—the ministry of finance, the ministry of defense, the ministry of public security, and the foreign ministry—have been given to representatives of minor parties (all but the foreign ministry, with Bezalel Smotrich holding both the finance ministry and a secondary ministerial position at the ministry of defense). Meanwhile, the ultra-Orthodox parties secured unprecedented budgets for a schooling system that teaches almost no secular studies and whose graduates fail to join the military and the workforce, all while demanding legislation that would reserve 20 percent of all government positions for ultra-Orthodox appointees, even if they lack the necessary qualifications.
Such changes in political culture don’t lend themselves to straightforward remedies, and are unlikely to be reversed. In aggregate, they render the executive branch more reckless, less representative of the popular will, and less willing to work for the good of the people as a whole. Removing the checks provided by the judiciary, without introducing any alternative checks and balances (which the reform does not), seems even less wise under these circumstances.
A democratic regime is not a mathematical equation where one can change a particular factor or coefficient and expect to get a predictable outcome. Changes to a system often have unforeseen and inadvertent effects, and remedies to existing problems often lead to more severe ones. The modest reform instituted by Gideon Sa’ar in 2008 did not leave most opponents of the judicial revolution satisfied. But over the course of fifteen years, it has yielded results. In the fullness of time, it is apt to bring even greater balance to the judicial system. This does not mean that further adjustments are not necessary, and I proposed several such amendments in my writing. These should, however, be prudent, carefully considered, and surgical. A rash, sweeping constitutional change—a judicial counterrevolution—is likely only to upset further Israel’s fragile constitutional balance. An even worse outcome is what we see today in Israel’s streets and everywhere else: a social rupture that threatens to bring down the regime itself.