Netanyahu Courts Unchecked Power
Will Israel Become Less Free and More Democratic?
“As for the supreme power which he had pursued during the whole course of his life throughout such dangers and which at last and with such difficulty he had achieved, the only fruit he reaped from it was an empty name and a glory which made him envied by his fellow-citizens.”
- Plutarch [Caesar, 69]
Israel is about to enter into its 12th week of large-scale protests, called some of the largest in Israel’s history. The protestors are a broad coalition from within Israeli society, most of all Israel’s well-educated, secular middle class. At issue is a plan to reduce the power of Israel’s Supreme Court. Israel has never been able to pass a formal constitution, meaning it is governed by a series of “Basic Laws,” which have left the Supreme Court with an enormous amount of power to determine what it deems “reasonable.” After years of unstable, weak governments, veteran leader Benjamin Netanyahu has put together what is considered the most far-right government in Israel’s history, which has given Haredi [known as “ultra-Orthodox” in English] religious parties a great deal of power. Netanyahu has been embroiled in a years-long corruption trial, and Israel’s parliament, the Knesset, just passed a law to ensure he can continue to regardless of the trial or its results. Though is has been ruled that Netanyahu cannot be involved in judicial reforms due to his criminal problems, it is widely seen that these changes are designed to protect him.
Much of the talk about this says that it is somehow a “threat to democracy,” which is nonsense as courts are anti-democratic institutions which serve as a check on the whims of the people. In reality, what they mean is it will destroy what balance there is in Israel’s mixed government and give nearly unlimited authority to Israel’s unicameral legislature. Since Israel has a ceremonial President and no upper house, from a political theory perspective, these changes will give the demos unlimited power; Israel will become an ochlocracy, which means government by mob rule. The protestors are right to be concerned about neutering the court’s power. However, the court has accumulated excessive power over time and is in no way responsive to the public will. Talk of civil war is increasing in Israel, including from Israel’s President Isaac Herzog. An Israeli civil war seems extremely unlikely, however, it is rapidly approaching a situation where the military or police may get different orders from the parliament and the court, and will have to make a decision; this is the most common way a real civil war starts. At the same time, there is increasing unity from Israel’s Arab neighbors, so it is a bad time for Israel to be divided. Only time will tell if this ends in compromise, Netanyahu consolidating total power, or Israel being torn apart.
I am not going to give a background on Israel being as everyone interested enough to international politics to be reading this piece is familiar with the country. However, I do want to give some background on my views. I have always been sympathetic towards the Palestinians simply because there is a great deal of human suffering. However, I also recognize the law of conquest and that it is how anyone comes to control territory. I don’t believe Israel has any special right to control this territory due to historical or religious factors, but they do have a right to control the territory simply because they are able to. For the purposes of this article, I will not be discussing the Israel-Palestine situation except insofar as it relates to this specific political dispute. I hope that Israel and Palestine can find a lasting peace, however, it is not for me to decide on what terms they should make peace. Further, that only works if both sides can agree and only they can choose what they will agree to. I don’t like the governments of either side, though I don’t like governments in general. My goal here is to maintain neutrality and tell the story of the court changes and protests, and explain the relevant political theory.
Though Israel has historically been a secular socialist state, the Jewish population is divided between secular liberal internationalists and conservative religious nationalists. All of the major Jewish political groups are Zionist, meaning they believe Jews have a special right to create a country in this region for religious and/or historic reasons. Israel has a growing Arab population of just over 20%; they are generally politically marginalized, though an Islamist group, the United Arab List, was part of a broad coalition government formed in 2021, the first time an Arab group had been part of a ruling coalition. The Supreme Court has historically been mostly on the side of the secular Israelis, with an Op-Ed in The Washington Post describing it as “the bulwark of secularism.” Israel has suffered from years of political instability, with its fractious politics divided along ethnic, religious, and ideological lines and parties struggling to form stable governing coalitions. Since 2019 Israeli governments have lasted under a year on average. This appears to have changed following the elections of November 1, 2022, when right wing and religious parties had a strong showing. Netanyahu returned to power, saying, “Thanks to the enormous public support we received in the last elections, I was able to establish a government that will work for the benefit of all Israeli citizens.” This put people considered to be extremists into positions of power, with Religious Zionism party leader Bezalel Smotrich, a “self-declared homophobe” and settler activist becoming Finance Minister and also getting a high level defense position. Further, Jewish Power party leader Itmar Ben-Gvir, who has been convicted of charges incitement of racism and supporting a terrorist organization, is the National Security Administrator. Netanyahu attempted to make Aryeh Deri of the Shas Haredi party a minister despite the court ruling he was ineligible due to previous economic crimes; Netanyahu had intended to give him multiple high-level positions. Overall, the cabinet has a remarkable amount of legal problems: a confrontation with the court was inevitable.
The new government did not waste time moving against the court, with Justice Minister Yariv Levin announcing a plan on January 5th, which the government hoped to rapidly pass. The most egregious aspect of the reforms is to allow the Knesset to re-enact any law overturned by the court with a simple majority of 61 votes. This reduces the court to an advisory role. This is concerning as the court is the only check on the power of the Knesset; without a formal constitution, an upper house, a strong executive, or a powerful court, it means the ruling coalition in Israel can legally do literally whatever it wants as long as it gets 61 votes. The “Basic Laws” which serve as a de facto constitution can be easily changed; these reforms are known as “Basic Law: The Judiciary.” Of course, they may face protests or government employees refusing to follow orders or criticism from their US sponsors, but there would be no legal barriers to enacting laws that restrict the rights of anyone in Israel in any such way as the Knesset should choose. This seems unwise even from their perspective, like the famed “Nuclear Option” in the US Senate reducing votes to requiring a simple majority, which inevitably then gets used by an opponent after a future election. It seems especially unwise being as members of the coalition government represent some religious and ethnic minorities. However, this would give the Knesset legal power to change the voting system however they want, for example, they could disenfranchise Arab Israelis wholesale, though it would likely cause riots and terrorism. If they wanted to be somewhat more subtle, they could make candidates pledge allegiance to “a Jewish and democratic state,” which is common phrasing Israel uses in its laws; in this way, without banning Arabs from running for office or voting, the Knesset could cause most Arab politicians and voters to boycott the election thus ensuring a permanent right wing majority.
These judicial reforms would also remove a system where judges are selected by other judges, and make the majority of people on the selection boards political appointees. This would be less of a problem in a more balanced government, but as it stands it makes the Knesset the sole source of authority. Further, it would cancel the “reasonableness” doctrine, which makes it unclear on what grounds the court would even judge cases. In short, whereas the US Supreme Court [ideally] judges cases based on if the law falls within the US Constitution, since Israel lacks a formal constitution they have up to now been making judgments based on whether or not the law is “reasonable,” as determined by a panel of judges who select themselves. I have to admit it is amusing that it is the government’s position that they don’t need to behave in a reasonable fashion. The Lawfare blog writes, “the complete abolition of the doctrine of patent unreasonableness would not allow the Supreme Court to review even totally irrational decisions.” Any, if you’ll excuse me saying it, “reasonable” person should be concerned about the government changing the law so that it will be unrestrained in making “totally irrational” decisions. Lastly, the power of “legal advisers” within the Israel government would be restricted; currently people in this position are responsible for the government’s interpretation of laws, and this would reduce them to simply being political advisers. It appears that the rulings of legal advisers have had a role similar to that of Executive Orders in the United States in that they direct the government about how to follow a law.
I understand the government’s position, in that Israel’s Supreme Court has so far been completely removed from the democratic political process. It is able to be insular and is in no way responsive to public opinion. This is the result of Israel failing to ever pass a constitution and being left with only two power centers within the government which are completely separate from each other. However, while aspects should be reformed, this sort of bare majoritarianism is extremely problematic. The Israeli public is right to be concerned, as this could be followed by serious human rights problems and no checks on government corruption. Already, the first law in the package of reforms passed, which protects politicians who are facing legal charges; of course, this appears targeted to protect Netanyahu specifically.
Protests started immediately after the judicial reform plans were announced. The protestors have came from across Israeli society, including establishment groups and figures, such as reserve fighter pilots, tech workers, and former Prime Ministers. A full 2/3rds of Israeli’s believe that the court should have the ability to overturn laws. There are concerns about every aspect of governance going forward. It’s not creative or original, but women have been out in the street in Handmaid’s Tale costumes:
This is at least somewhat less ridiculous than in America, being as Haredi groups tend to have more traditional views on women than anything you would find in evangelical Christianity [in fact, women are actually a lot more integrated into society in evangelical Christianity than in more traditional religious groups.] It is concerning for the rights of women and everyone else, since if the judicial reforms pass there is nothing holding the line on women’s and minority rights. Though it hasn’t been a major subject of protest, there is also a lot of concern about annexing the West Bank, since Netanyahu’s government has hardcore pro-settlement figures in positions of power. There has even been debate about banning evangelism [it didn’t pass, and it needs mentioning, that while I am a secularist and believer in religious freedom, going to the one Jewish country in the world to preach Jesus to the Jews is a dick move, and further, banning proselytizing is common in this region where there are so many challenges keeping the peace between religions.] The problem is less anything that the government is currently trying to do and more that there is no way to know where this might end once the check of the judiciary is removed.
The protests have became increasingly contentious, though nothing severely bad has happened yet. On Thursday 82 people were arrested nationwide, which isn’t that many in a nation of Israel’s size. In early March, during a “Day of Resistance,” Netanyahu had to be airlifted to the airport due to protestors blocking the street. National Security Minister Itamar Ben-Gvir has described the protestors as “anarchists,” which is amusing given that they’re basically middle class normies. Tel Aviv police chief Amichai Eshed was cheered by protestors when he walked through the crowd in the uniform, after he was transferred by Ben-Gvir for being “soft” on protestors. Attorney General Gali Baharav-Miara overruled the decision, determining that Ben-Gvir had acted beyond his authority in managing the police to that degree. It is an interesting preview of what may be to come if the the differences cannot be overcome, with the political leadership and judicial leadership in different positions. This is especially true now that, contrary to a ruling of the Supreme Court and the opinion of a legal adviser, Netanyahu has said he will get involved in the legal reforms, and the Attorney General says he has acted illegally.
There as also been protest from outside of Israel, both from the scribbling class as well as leaders of key allies. Much of it involves the common feature where “democracy” is used to vaguely mean “good.” What they mean by “democracy” is a mixed constitution and what you would call “free government.” The Brookings Institute published a piece by Natan Sachs titled “Israel’s Majoritarian Nightmare Should be America’s Concern.” It does a good job of explaining the problems with this sort of bare majoritarianism. However, the piece makes the claim that “demos” implies a concern for taking care of the whole people, which is more a matter of opinion than inherently true, but both Polybius and Machiavelli do call “democracy” the “good” form of majority rule. Sachs writes, “The power of bureaucracies, elites, and courts should indeed be limited, but their function is vital to democracy.” It isn’t “democracy” they are crucial to, but a functional government with any amount of freedom and human rights. Sachs also makes the concerning point that without a powerful court Israel’s plan for safeguarding human rights is basically “trust me, bro.” Netanyahu says he won’t abuse power and minority rights will be guaranteed, but there are no actual protections besides the goodwill of politicians, the last thing you want to rely on.
World leaders are concerned about Israel becoming too democratic even as they use the opposite language, with French President Emmanuel Macron saying that if Israel follows this plan, “Paris should conclude that Israel has emerged from a common conception of democracy.” Macron also expressed concern about the possibility of annexation, though Netanyahu assured him it would not happen. The Biden Administration has been unusually verbose about Israel’s internal politics, with the White House describing Biden’s position as follows,
“[He] underscored his belief that democratic values have always been, and must remain, a hallmark of the U.S.-Israel relationship, that democratic societies are strengthened by genuine checks and balances, and that fundamental changes should be pursued with the broadest possible base of popular support.”
Secretary of State Anthony Blinken stated that, “Consensus is the best way forward.” While there is, as ever, a good amount of hypocrisy here, it is true that one of the main narrative justifications for supporting Israel is its status as a “democracy” in an autocratic region. While aspects of this are an illusion, these large-scale protests and whatever changes will come following the judicial reforms will make it difficult to continue to sell that narrative.
On Friday Netanyahu had a meeting with the British Prime Minister Rishi Sunak which was described as “low key.” No public statements were made, but the British released a statement saying it emphasized the following to Netanyahu:
“The importance of upholding the democratic values that underpin our relationship, including in the proposed judicial reforms in Israel…International concern at growing tensions in the West Bank…we encourage all efforts to de-escalate, particularly ahead of the upcoming religious holidays.”
None of these statements should be that concerning for Israel’s government- yet- but the major Western powers are watching them with a critical eye. American Jews, a major source of support for Israel, have been critical of the reforms, including the group the American Jewish Committee. While Republicans have generally been silent on the issue, there has been notable opposition from Democrats. Though in some ways Israel is a self-sufficient country it still relies a great amount on goodwill from the Western public, something which is put at risk from these proposed reforms and the ensuing protests. And of course, this is all before the Knesset has used new-found power to pass any controversial policies. With John Kirby, the National Security Council Coordinator for Strategic Communications, having recently made a bizarre statement about how LGBTQ+ rights are a core part of US foreign policy which they will “never shy from speaking up about,” this conservative religious government with a “proud homophobe” cabinet member could rapidly run afoul the Biden Administration.
Throughout Israel there are increasing concerns about civil war. In America, we have a tendency of imagining that civil war arises at a “grassroots” level from public discontent, but in reality it is more commonly caused by a constitutional crisis. In this instance, there is no indication of what will happen if the government passes a law that ends the ability of the court to overturn laws and then the court tries to overturn that law. This would create a situation where the military and police will have to decide whose orders to follow, and since there is not an obvious answer it will be up to the conscience of individual commanders; the odds of them all coming to the same conclusion are slim. Such a situation can rapidly get out of control, especially if the court orders the arrest of the government or vice versa.
Without a formal constitution, Israel is like the Roman Republic in that laws and traditions have been established over time as innovations have been necessary. This situation amounts to a conflict between the plebeians and the patricians, since the court is drawn from the country’s elite and the common man has no say in its selection. This conflict could ultimately be a net positive for Israel. It is Machiavelli’s view that such conflict brought about most of Rome’s good laws. He writes,
“Those who condemn the disturbances between the nobles and the plebeians condemn those very things that were the primary cause of Roman liberty, and they give more consideration to the noises and cries arising from such disturbances than to the good effects they produced; nor do they consider that in every republic there are two different tendencies, that of the people and that of the upper class, and that all of the laws which are passed in favour of liberty are born of the rift between the two.”
[Discourses, I.4]
There are real problems with the court’s degree of power, but the government’s stance is also too extreme. It is only by reaching a compromise that Israel can develop better institutions than it has now. There needs to be a degree of public control over choosing magistrates while the courts are able to ensure that the basic rights of all citizens are protected.
If Israel cannot work things out and does slide into civil war it will be a matter of great concern for the whole world. For one thing, Israel has an unknown amount of nuclear weapons. Also, despite being a small country, Israel is extremely militarized and the great majority of the Jewish population has military training [Arabs are not conscripted in Israel and only a small amount volunteer for the military.] It is unknown how this would impact both Palestinians and Arab Israelis, as they would not necessarily be partisans, but such wars are bad for minorities. Israel is also on historically bad terms with many of its neighbors, though it has found a form of peace or at least detente with most states in the region. Still, there is an unprecedented degree of peace and cooperation developing among the Muslim states in the region, and them agreeing on how to “handle” Israel could be one of the biggest threats. Who knows what would happen to Israel’s ability to defend itself if its military was turned inward. At the same time, as was often the case with Rome, it is easy to imagine Israel somehow maintaining the forces to protect itself from external threats while simultaneously having a violent struggle for control of the country. There is no way to know what could happen, but when the Jews in this region turned against each other almost 2000 years ago it was profoundly brutal, and they retain a strong memory of that tragedy, which led to the destruction of Jerusalem. For now, Netanyahu is ostensibly trying to find a compromise, though he is yet to really offer anything.
It appears that Netanyahu will be successful at fully consolidating his rule over Israel, with his government having nearly unlimited power. However, the protests in Israel represent one of the greatest challenges the modern state has faced in its young and tumultuous life. It could result in outright destruction or in substantial improvement to the state’s institutions. I understand the position of both sides. Now that the creeping power of the court has been recognized and brought to the fore, one way or another it is only a matter of time before it is reigned in. The question is if the court is reigned in in such a way that makes Israel a more functioning polity for everyone involved, or if Israel ends up with a sort of brutal and unstable majoritarianism where an unchecked Knesset runs rampant. We may get a real example of what happens when a state becomes too democratic, and it is unlikely to be pretty.
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You say the courts are undemocratic, and they supposed to be, patrician plebian Machiavelli and all. In theory they should by virtue of the constitution protect from the tyranny of the majority, now courts are imposing in many places a tyranny of the minority. An unelected unnaccountable self selecting judiciary really is a problem and what I found about the controversy in Israel when it raged as you point out though not explicitly. Israeli liberals could have sought a compromise and demanded the drafting of a constitution (one that presumably would need to also guarantee eqaul rights for all), which by demography in the future could conceivably mean a coalition led by Arab Israelis which I doubt even secular liberal Israelis would be comfortable with, which is presumably why those voices never really got much say. If you going to have an unelected self selecting unnacountable court and its going to rule on the legality of legislation passsed by elected and accountable politicans, it needs to have either written or unwritten a set of principles. I didn't have much sympathy for the Israeli liberal side at the time because I wasn't reading enough liberal commentary demanding what should have been an obvious compromise.
I wonder how this might play into Biden's response. https://www.thenation.com/article/world/trump-israel-collusion/