The Key Judicial Reforms Tearing Israel Apart

The massive protests that filled Israeli streets in March and April ebbed somewhat after Prime Minister Benjamin Netanyahu agreed to protesters’ demands for a “pause” in his push for major changes in the country’s judicial system. But the conflict is far from over, and indeed, is scheduled to heat up again around the end of May, when, with national and religious holidays past and other pressing business (including a budget) largely disposed of, the Knesset will be free to turn again to the much-disputed “reforms” being proposed for the legal system.

And what are those reforms, exactly? Though Israel’s government superficially resembles that of the United States in many ways—it has a Supreme Court and justices, like us, and, as we’re frequently reminded, is a fellow democracy—things with the same names can significantly differ in more than just details. Who’s protesting what, who has the upper hand, and what, exactly, is on the table? Moment opinion editor Amy E. Schwartz sat down with seasoned Israel observer Michael Koplow of the Israel Policy Forum for a tour of the landscape.

First of all, just for simplicity, could you catch us up on the state of play? Is someone winning? Who’s ahead?

Right now, the two sides—those pushing for the judicial overhaul and those opposing it—are in a hiatus. Prime Minister Benjamin Netanyahu paused the process more than a month ago in response to a whole variety of things, including the weekly protests in the streets, the revolt from IDF reservists, and the flash protests when he fired defense minister Yoav Gallant for calling for a pause in the push for the legislation. So the idea was to get through Passover, get through Israel’s civic holidays—Yom HaZikaron, Yom Ha’atzmaut—and then resume. They were in a holding pattern until the budget passed, but now Netanyahu is going to have to decide what he wants to do.

If you look at the way the system is designed, it’s amazing that Israel took until now to get to this crisis.

There are signs that the ultra-Orthodox parties are probably going to go along with whatever he chooses. Some of the other parties in the coalition are not as certain, and there’s also a real split within Likud. On top of all this, we still have negotiations between the pro-overhaul and anti-overhaul sides taking place under the auspices of President Isaac Herzog at his residence. I think neither side wants to be the first to back out of the negotiations or to be blamed for tanking any potential compromise, but it also seems as if on the most contentious issue, which is how you select judges, the two sides are still very far apart. So a month from now, Netanyahu is probably going to have to make a choice, and it’s unclear, at least to me, what he’s going to choose to do.

Meanwhile, the streets are still full of protesters now from both sides?

That’s right. We still have the protests that have been taking place now for months against the judicial overhaul, and then in early May there was a demonstration of 200,000 people outside the Knesset in favor of judicial overhaul. So I think that’s probably going to be a regular feature going forward, protesters both for and against the changes.

Let’s go back a little. Two things that the reformers were considering that had people so worked up were the appointment process for judges and the judicial override. Are there others?

I’d say that there are four main things. One is how you select judges. Another is how you deal with Basic Laws. Another is the power of the Knesset to override the Supreme Court if it strikes down legislation, and the fourth is the role of legal advisers, including the attorney general.

On the first issue: Here in the United States, we have a system that is designed to respect different branches. The idea is that the executive branch, namely the president, nominates judges, and the legislative branch (in the form of the Senate) confirms judges.

In Israel, you can’t have such a system because the executive and legislative are effectively collapsed into one. The same Knesset majority of 61 or more who control the 120 seats in the Knesset and form the coalition also form the government. The result is that the same group of people who control the executive, namely the prime minister and the cabinet ministers, also control the legislature. As a result, Israel has this judicial selection committee where you have representatives from the Supreme Court, representatives from the Israel Bar Association, representatives from the government, and representatives from the Knesset. From this body of nine people, you have to get seven votes to appoint a Supreme Court justice.

No one confirms them, there’s no second step?

Correct. They consider, and that’s it. There are two groups that essentially have vetoes during the process. One group is the judiciary, because you have three judges on the committee, and so those three can prevent getting to the magic number of seven, and the government also has a veto because you have two ministers and then you have two members of the Knesset, neither of whom has to come from the opposition. In practice, one or both of those Knesset members is always from the coalition, meaning that, if you add the ministers, you always have a group of either three or four who represent the majority coalition. So the judges can prevent anybody from getting to seven, and the government can prevent anybody from getting to seven, and that has meant there has to be a consensus.

Doesn’t that provide balance? 

To many outside observers, it sounds balanced. The current Israeli government’s contention is that this is not democratic because judges are not accountable to the people’s elected representatives, that is, the Knesset—and so those elected representatives, who reflect the voice of the people more directly than judges do, should have a majority on the committee and be able to appoint judges without really having a check on their power. They’ve gone through a number of iterations of how they want this to work. The current proposal is that you would have a committee of 11 people. Six people on the committee would be either from the government or members of the Knesset from the coalition, and those six would be able to select the first two judges in any government’s term, free and clear. For additional judges after that, they’d have to get buy-in either from one of the judges or from one of the members of the opposition.

This is what they have proposed, and it passed the first reading in the Knesset. If they were to choose to go forward now, they could pass it in a second and third reading and that would become the new law.

How many justices are there on the high court? Are they term-limited?

Esther Hayut is the current president of the Israeli Supreme Court. credit: The Judicial Authority of Israel (CC BY-SA 4.0) / IsraelTourism (CC BY 2.0).

There are 15 judges on the high court, and they have an automatic retirement age of 70. That’s why Esther Hayut, the current president of the Supreme Court (the equivalent of the chief justice in our system), is due to retire in October. In some ways, that is actually adding even more of a contentious variable, because one of the other things the government is proposing as part of the reform is to change how you select the president of the Supreme Court. Right now, that position is simply held by the most senior member. They want the government to appoint the president of the Supreme Court, who, under the current and proposed systems, is always on the judicial selection committee.

If the government gets to appoint the first two justices on its own, and then after that, it has to get buy-in from somebody else on the committee, and it also has the power to appoint the president of the Supreme Court, it’s a good bet that the president of the Supreme Court will always vote with the government to confirm subsequent justices. So if this goes through as the government wants, it really would be a big shift in how judges would be selected in Israel.

Are the names of judges proposed by the government, or are they proposed by the judiciary itself?

It’s all done in this committee. Anybody can bring names, and then they have to get some sort of consensus.

The next issue is the Basic Laws, which serve as Israel’s quasi-constitution. Right now, the Supreme Court has the power to invalidate new Basic Laws if they conflict with an existing Basic Law, of which there are currently 13, covering a range of subjects from the structure of the government to the rights of inhabitants. The court  also has the power to invalidate amendments to Basic Laws if they conflict with existing Basic Laws.

Does the Knesset need a two-thirds majority to pass Basic Laws, or are they just like any other law?

Right now, not only do Basic Laws not have to have a supermajority to pass, they don’t even have to have an absolute majority of 61. They can pass with a simple majority of how many people are voting in the Knesset on any given day. The government is proposing that Basic Laws should be beyond the purview of the Supreme Court. The opposition’s argument is that because they’re treated as quasi-constitutional, you can’t do that without having a higher standard for passing Basic Laws in the first place, whether it’s a supermajority of votes to pass it, or, as some have suggested, that they have to pass in consecutive Knessets, so one Knesset can pass it, but it doesn’t become law until the next Knesset after an election passes it also. So that’s issue number two.

Where do Basic Laws come from in the first place? Were they there at the beginning of the state?

They’ve come over time. The first was in 1958, formalizing the structure and function of the Knesset. The most recent Basic Law was passed in 2018, designating Israel the nation state of the Jewish people. When a Basic Law gets added, the Supreme Court weighs in. I’ll note that this system actually operated quite recently when, after the March 2020 election, Netanyahu and Benny Gantz formed a unity government and created a new system in which there would be a  prime minister and an alternate prime minister, who would rotate.

Benjamin Netanyahu is the current prime minister of Israel. credit: World Economic Forum (CC BY-NC-SA 2.0) / Oren Rozen (CC BY-SA 4.0).

It was intended more for Netanyahu than it was for Gantz, because under Israel’s system, a prime minister who gets indicted is allowed to remain in office, but any other minister who is under indictment has to resign. Netanyahu was worried that when he rotated out of the prime ministership and Benny Gantz became prime minister, as had been agreed, Netanyahu would no longer be protected by his position and would therefore be required to resign from the Knesset. So they passed a new law that created a post of “alternate prime minister” and invested it with all the same rights as the prime minister. They had to amend the Basic Law on the Government to create this new position. That change in the law then went to the Supreme Court, which approved it, but had it not done so, Israel wouldn’t have been able to have that short-lived unity government and there would be no such thing as an alternate prime minister.

Issue number three, the proposed override of Supreme Court review, applies to all other legislation. The Israeli Supreme Court has struck down a law because it conflicts with a Basic Law 22 times. The government is proposing three changes. One is to create something called a “notwithstanding clause” that you could put into any legislation that would say this legislation is not reviewable by the Supreme Court. Number two is to change the way the Supreme Court hears cases to strike down legislation. Right now, the Supreme Court can strike down legislation in a panel of three judges, and a majority of them have to vote to strike it down. The government’s proposal is that going forward, the entire Supreme Court, all 15 justices, would have to hear a case to strike down a law and at least 11 of them would then have to vote to overturn it, so you couldn’t do it just with a majority of the panel.

Then, third, let’s say all this happens and the Supreme Court strikes down a law. The government further proposes to create an override mechanism, which right now doesn’t exist, where the Knesset could then override the Supreme Court with a vote of 61 members, that is, an absolute majority. That’s not terribly difficult for a government to do, given that you have to have 61 members of the Knesset to form a government in the first place.

Has the Supreme Court had the ability from the beginning to strike down laws, or did it emerge later, as with our system?

It developed over time. That was not something in existence until the 1990s, when Aharon Barak, as president of the Supreme Court, asserted the power of the Supreme Court to override legislation or to declare government action invalid if deemed unreasonable. That’s part of the issue here, that because Israel has no constitution, these things were never set out from the beginning, and so over time, the Israeli Supreme Court assumed these powers for itself. What the government now says is, “Who told you you could do that? This wasn’t done by consensus.” Aharon Barak himself referred to it as Israel’s constitutional revolution. What the government is saying now is this was a nondemocratic revolution and so we are now going to rebalance things.

Did this power to overturn laws arise in conjunction with the Basic Laws?

They really arose from the Basic Law that was passed in 1992 on human dignity. This is a well-known law, because it’s also the only thing that really enshrines any rights for Israelis. There is no Bill of Rights and there is no constitution. The Basic Law on human dignity enshrines some rights for Israelis, such as the right to assembly, and so once that was enacted, the Supreme Court started to say, “If laws violate this Basic Law, then we will strike them down.” Rulings like the right of women to apply to all positions in the army, for instance, flow from those dignity provisions.

What is the fourth issue?

The fourth issue is government advisers. In Israel, the attorney general’s term outlasts any government, and legal advisers in government ministries are appointed by the attorney general, not by the heads of those departments. Unlike in the U.S. system, the attorney general in Israel serves both as an adviser to the government, to say what’s legal and what’s not, and also as a prosecutor general. So for instance, when Netanyahu was indicted, the entire investigation and then the decision to indict had to be signed off on by the attorney general.

Governments do appoint attorney generals, but there’s a fixed term, so new governments generally can’t appoint a new one, , and it’s very, very difficult and controversial to fire an attorney general.

What the government is proposing is twofold: to make legal advisers and ministries political appointees, so they would be appointed by the ministers themselves; and to make their input advisory rather than legally binding. Currently, if a legal adviser says to a minister that he or she cannot take an action, then that has the force of law. The government wants to change that so that a minister could take the advice or leave it. More recently, the current government has also proposed that the attorney general’s term should expire with the government’s, so that each government can appoint its own attorney general.

If you look at the way the system is designed, it begged this crisis from day one.

Another proposal is that the attorney general position should be split from that of a prosecutor general, so you won’t have the same person giving the government advice and also deciding whether or not to indict ministers from the government. This proposal has actually been floating around Israel for a while. The current system does create a difficulty. Here in the United States, when a president is investigated, we generally appoint a special counsel. There are now dueling special counsels looking into both Donald Trump’s and President Biden’s handling of classified documents. In Israel, it’s the attorney general who determines whether government actions are legal or illegal, and also decides whether or not to indict prime ministers or other cabinet ministers.

Has there ever been a situation in Israel where the government rejected the advice of the attorney general? 

Gali Baharav-Miala is Israel’s current attorney general. She was confirmed under Naftali Bennett. credit: Tomer Jacobson (CC BY-SA 3.0) / Oren Rozen (CC BY-SA 4.0)

No. That would likely cause the government to fall. We’ve seen things tiptoe up to the line recently: For instance, Avichai Mandelblit, who was attorney general in 2020, had Netanyahu sign a conflict of interest agreement that obligated him not to weigh in on issues impacting the judiciary, because he is under indictment. Then the Knesset basically passed a law saying that Netanyahu effectively could weigh in on judicial issues, and then he announced he was going to weigh in on judicial issues. So the current attorney general said, “I guess this is all right,” but we haven’t really had a situation where the attorney general has said, “Absolutely this is not okay,” and the Supreme Court has said the same thing and the prime minister has gone forward.

More recently, Attorney General Gali Baharav-Miala ruled that Aryeh Deri, who was appointed as both interior minister and health minister in this government, shouldn’t serve. That went to the Supreme Court, which said, “Correct, Aryeh Deri should be fired,” and Netanyahu complied. So we haven’t yet had a constitutional crisis in the absence of a constitution. But if the judicial overhaul goes forward, we’re almost certainly going to have such a crisis, because if these elements are passed by the government, I suspect the Supreme Court will strike one or many of them down, and then the question will be, what does the government do?

Then would the government just appoint a bunch of new justices who would come to heel? 

Potentially, or the government backs down. Honestly, nobody knows, because this is unprecedented.

Does the Israeli Supreme Court, like ours, sit on top of a system of lower courts?

It does. You have magistrate courts, district courts and then the Supreme Court. So there are three levels. Unlike our federal system, Israel doesn’t have an additional layer of state courts. The Supreme Court is also the first court for some issues. For instance, cases about rights violations in the Palestinian territories go straight to the Supreme Court.

Can Palestinians bring cases even though they’re not citizens? 

They can, and it’s not just about standing—for Palestinians or anyone. In the U.S. court system, you can only bring a case if you have standing, if you have some immediate and reasonable connection to the case. It doesn’t work that way in Israel—a lot of the petitions that go to the Supreme Court challenging government action are brought by NGOs that don’t necessarily have standing. Things like creating an alternate prime minister get challenged right away by NGOs, whether they have standing or not. So actually, one of the problems in Israel is that you don’t have nearly enough judges, and the Supreme Court hears just an enormous amount of cases. The proposed judicial reform doesn’t address that.

So does this court spend a lot of time looking at cases brought by or on behalf of Palestinians in the West Bank asserting rights violations? 

Yes. One of the reasons that the right doesn’t particularly like the Supreme Court is because in their view, the Supreme Court has prevented Israelis from doing things that they would like to do in the West Bank. For instance, when a settlement is built on private Palestinian land, the Supreme Court may rule against it, and we’ve had settlements or neighborhoods of settlements that have been evacuated and demolished due to Supreme Court order.

And the government so far has always complied with the Supreme Court’s orders?

Yes, although sometimes it takes years. For example, for years the Supreme Court has ordered that Khan al-Ahmar, a Bedouin town between Jerusalem and the Dead Sea, must be demolished because it was illegally built. Successive governments have delayed, delayed, delayed, including the current one. They’ve said that for a variety of reasons, either they don’t want to carry it out, or it shouldn’t be carried out now, or they’re negotiating with the residents. The Supreme Court has ordered demolitions of both Israeli and Palestinian communities. Either the orders are carried out or the government appeals, but they’re never just blatantly ignored. The Supreme Court is the last word.

The government’s proposed “notwithstanding clause” could make any legislation unreviewable by the Supreme Court.

This is one of the reasons why the government wants to create an override mechanism. It argues in essence that the Supreme Court is inherently less democratic than the Knesset, so therefore the Knesset should be able to  override the Supreme Court if it deems it necessary.

How does the Supreme Court relate to the religious courts or to religious law?

Religious courts have jurisdiction over personal status issues—things like marriage or divorce and conversions, although there are times where the Supreme Court has stepped in and said the state has to recognize things that religious courts don’t necessarily want to recognize. On conversions, for instance, the Supreme Court has ruled that the state has to recognize conversions done outside of Israel by non-Orthodox streams of Judaism. That’s something that, obviously, religious courts in Israel did not want to do. So there are situations where the Supreme Court will step in, but generally issues of personal status are left to the religious courts.

Lots of these legal structures were inherited either from the Ottomans or the British. The Ottomans weren’t alone in this; many empires before the 20th century left different religious groups to their own devices on personal status. That was the case under the Ottomans, and Israel inherited it.

Can those religious courts and their decisions be appealed to the Supreme Court? Do they feed into the system in some way?

They’re a separate system, but the Supreme Court can weigh in on larger issues of wider policy, for instance on conversions. I don’t think there’s a mechanism to appeal individual cases from religious courts to the Supreme Court.

As Americans, we come to this whole thing thinking, well, where are the checks and balances? You said at the beginning of the conversation that you can’t have the executive and the legislative branches check each other, because they’re one. If you look at democracies, is that more typical, or are we more typical? Who’s the outlier?

As president of the Supreme Court, Aharon Barak spearheaded a constroversial “constitutional revolution.” credit: Youtube / James Emery (CC BY 2.0)

So in a parliamentary democracy, by definition, there’s going to be overlap between the executive and the legislative. What makes Israel more complicated, if not unique, is that unlike, say, the UK, it has a unicameral legislature—that is, with only one house. When you think of parliamentary systems, many of them have an upper house and a lower house, and that operates as a check because sometimes the same party or the same faction doesn’t control both. We know that very well here in the United States, where the majority in the House and Senate are often—and currently—divided between the two parties.

In Israel, there’s also no federal system. There’s just a Knesset. Israel’s not divided into provinces, it’s not even divided into districts. The entire country is a single district. People aren’t electing their local representatives to the Knesset. They’re voting for a party, and then it’s proportional representation. Some of the parties have primaries—Likud, for instance, and Labor—so the people who are members of that party, if they vote in the primary, have some say over the list of candidates but no local representative.

So if you have an issue, you can’t call your representative to get constituent service, as we might.

I suppose you could call your party. Again, Israel is not the only system in the world that has proportional representation without districts, but when people talk about proportional representation versus other systems, that is one of its drawbacks. So a lot of these different layers and checks that are in other parliamentary systems don’t exist in Israel.

Finally, there is the absence of a constitution. If Israel had a constitution that clearly laid out different rights and responsibilities, both in terms of the different branches to each other—what we would call horizontal accountability—but also that set out rights like a bill of rights—which we call vertical accountability—that would mitigate some of these problems. But Israel is one of only three democracies in the world that doesn’t have a written constitution. The other two are the United Kingdom and New Zealand.

A month from now, Netanyahu is going to have to make a choice, and it’s unclear, at least to me, what he’s going to choose to do.

The UK has basically had eight centuries to work this out if we start with the Magna Carta, and it was messy. They abolished the monarchy and beheaded the king, and then 11 years later they changed their mind, and then they chased off that king’s grandson and replaced him with somebody else. They’ve had their issues.

But they also have towering piles of precedent and a House of Commons and a House of Lords. So it’s not an apples to apples comparison.

Of course, in Israel this has all happened in a relatively short period of time.

Actually, it’s amazing that Israel took until now to get to this crisis, because if you look at the way the system is designed, it begged this crisis from day one.

Can you isolate a spark that caused it to happen now?

There are a few, but the biggest one is Netanyahu’s indictments. Up until he was indicted, there had been calls on the right to overhaul Israel’s judicial system, but he consistently said, “This is the crown jewel of Israel. It protects our rights, it burnishes our reputation overseas. I’ll never do anything to touch the judiciary.” And then he was indicted, and now we are where we are. I think it’s difficult to envision this happening had there been a different prime minister in office or had he not been indicted.

One last question. Is there a discourse about the ethical standing of Supreme Court justices in Israel, the way there is in the United States? Are there personal attacks on individual justices? Not on ethics as such, but there certainly is a discourse on this idea that Supreme Court justices historically have been overwhelmingly Ashkenazi, overwhelmingly secular, overwhelmingly from the center of Israel, not from the periphery, overwhelmingly on the left. Now that isn’t the case anymore. There aren’t enough Mizrahi justices, but in all other ways, the Supreme Court at this point is pretty diverse. Men and women, religious and secular, people who live inside the Green Line and outside the Green Line. Partially, that’s because the system now requires seven votes out of nine on the committee to put a justice on the high court. It used to be five votes, then it was six. Now it’s seven. As that happened, naturally you got a more diverse court.

Where did that movement come from? 

Yariv Levin is a prominent Likud member who could lead a revolt against Netanyahu if the proposed judicial reforms don’t go through. credit: GPO / Oren Rozen (CC BY-SA 4.0).

Raising it to seven was actually the initiative, about 15 years ago, of Gideon Sa’ar, who’s currently sitting in the opposition but is a longtime Likud member. It was part of the push to curb a general one-sidedness. So over time, you have this more diverse court, but there is still this line of argument that says the Supreme Court does not look like the government, does not look like the people, is democratically unaccountable. Esther Hayut, who’s currently the president of the Supreme Court, and Aharon Barak, who undertook this constitutional revolution, both get lots of ad hominem criticism. When he was president of the Supreme Court, Barak infamously said that he couldn’t find a single person in Israel of Moroccan ancestry who was fit to serve on the Supreme Court.

That’s been held up as a really strong example of the Supreme Court not representing all of Israel. Esther Hayut has been held up by the government and by people in favor of judicial reform overall as somebody who wants to prevent the will of the people from being enacted. So there definitely are personal attacks. Not over ethics, but over their perceived opinions or their perceived obstinacy on changing.

To wrap up, when are the next moves? What should we be watching for? 

Netanyahu has got all sorts of competing considerations. He has protesters in the streets and all the economic warnings and the objections from the security establishment. On the other hand, he has not only parties in his coalition but members of his own Likud party who say that they want to go ahead with this reform come hell or high water. So he’s in a political bind.

What happens if he decides not to go ahead with it? 

In theory, there could be a revolt within Likud where enough people defect to bring down the government. This is not an impossibility, because the person who wants this judicial reform the most is Yariv Levin, the justice minister from Likud, who also came in first in the Likud primary—not exactly a back-bencher. After Netanyahu, he’s the most popular person within the Likud grassroots. There’s also the possibility that even if Likud sticks together, one of the other parties in the government—I would point to the Religious Zionists as the most likely—could say, “If this doesn’t go through, then we can’t enact other policies that we want to enact, and so why are we sticking around?” There’s a lot to watch.