Ido Baum
I should start with a caveat: Israel’s judicial coup is ongoing. It is not entirely clear how it will progress, which parts of it will actually pass, and in what form. With so much uncertainty, it is very difficult to predict what will happen, or how Israel will be affected, in the next few weeks, let alone the next few years.
But three things are clear. First, the Israeli population has presented one of the world’s staunchest (and ongoing) protest movements against democratic backsliding. Second, despite several impressive victories, this resistance has so far been unable to thwart Netanyahu’s overwhelmingly right-wing and ultra-Orthodox governing coalition. Third, the fact that hundreds of thousands of Israelis who want to live in a liberal democracy rose up en masse to fight back has created a lively and relatively united pro-democratic front.
Over the next few years, Israel’s liberal-democratic and authoritarian camps will use legal and legislative measures to promote their agendas. Supporters of the government will focus on promoting the Jewish aspects of Israel’s identity.
Throughout its 75-year history, Israel has sought to balance liberalism, democracy, and religion. Now, this balance is crumbling, owing to demographic changes, economic growth, the ongoing occupation of Palestinian territories, and the rise of populist and extremist politics.
Israel must urgently establish a new equilibrium. The longer it takes, the higher the price will be for all citizens. Given the current entrenchment of both camps, I am not optimistic about the chances of charting a balanced course in the near future. I am also concerned that given the prevailing trends in Israeli society and politics, Israel will tilt away from liberal democracy, human rights, and social welfare, and toward greater financial support for the ultra-Orthodox population. It remains to be seen whether such a balance could preserve Israel’s fragile social cohesion in the long term.
Shlomo Ben-Ami
Netanyahu’s coalition of theocrats, religious nationalists, and Messianic settlers announced their plan to transform the judicial system almost immediately after their government took office six months ago. Whatever the government likes to claim, this is no simple reform. It would decimate the separation of powers, by giving the government control over the committee that selects judges. And it would destroy the Supreme Court’s ability to nullify unconstitutional legislation passed by the Knesset (Israel’s parliament, already a docile, government-controlled body).
Recognizing the threat to their country’s democratic order, hundreds of thousands of liberal Israelis have taken to the streets in protests that have continued unabated for months – even when Netanyahu claimed to be seeking a compromise with opposition parties. He did that after military reservists, including fighter pilots in an elite air force squadron and intelligence officers, joined the protesters by boycotting training, US President Joe Biden urged him to “walk away” from the reforms, and fears that Israel would suffer economically grew.
So, Netanyahu suspended the judicial overhaul. But, as the protesters who remained on the streets clearly recognized, he cannot be trusted. A coalition of anti-democratic forces needs an anti-democratic agenda. Not surprisingly, a new version of the reform is being debated by lawmakers.
This is a moment of reckoning for liberal Zionism. This attempt effectively at a judicial coup is the latest manifestation of the Kulturkampf that has gripped Israel in recent years. Jewish supremacists and right-wing parties are putting into practice their belief that Israel’s Jewishness is more important than its democracy, forcing liberals onto the defensive. Now, much to their own surprise, liberals have discovered that they can fight back.
Alas, even if the authoritarians are defeated this time – an unrealistic expectation, to be sure – the liberal tribe remains divided on an issue that poses an even greater threat to Israeli democracy: the subjugation of the Palestinian people and occupation of their lands. Protesters fear acknowledging this elephant in the room, lest their ranks diminish.
Nicholas Reed-Langen
According to the narrative being pushed by the Netanyahu government, Israel is a de facto juristocracy, ruled by its Supreme Court justices, and the executive – which already controls the Knesset – cannot enact policies without running into judicial roadblocks. To restore balance to the constitutional order, the government argues, it must reform the process for appointing judges and check the power of the courts, thereby putting power in the hands of democratically elected branches, and so back to the people.
So far, the Israeli people have refused to be ensnared by Netanyahu’s yarn. Protesters have taken to the streets of cities across Israel to defend judicial independence. They were not mollified even by Netanyahu’s announcement that the legislation would be paused. On the contrary, his concession invigorated those fighting for Israeli democracy, with over 100,000 demonstrating in Tel Aviv on June 24.
The scale of the resistance shows that Israelis are wise to Netanyahu’s ambitions. They have seen the reforms pursued by his nationalist-authoritarian counterparts in Europe – Hungarian Prime Minister Viktor Orbán’s attacks on the judiciary were so egregious that the European Union suspended funding to the country – and want nothing to do with them.
But Netanyahu may still get what he wants. Combined with the far-right Jewish Power Party, Netanyahu’s Likud party wields significant power over the Knesset, and he may still have enough influence to coerce his party into backing the judicial overhaul.
Nonetheless, it is clear that Israelis recognize that modern democracy does not mean raw majoritarianism. The fact that the government is not able to snap its fingers and enact fundamental reform is not an indictment of Israel’s constitutional structure, but rather evidence of appropriate constraints on the arbitrary exercise of power. If Israel’s Supreme Court’s justices must go down, they should go down fighting. That means striking down the legislation if it makes it through the Knesset, and reminding Netanyahu that the Supreme Court – not the executive – is Israel’s most respected institution.
Yofi Tirosh
In many respects, Israel’s judicial overhaul is already underway. Daily assaults on democratic institutions and the rule of law are eroding core features of Israeli democracy and society, even without the passage of the legislation that protesters are resisting. Legal councils in government agencies are already silenced and disregarded, despite possessing the authority to curb illegal policies.
Similarly, while laws aimed at protecting women’s “modesty” and keeping men and women separate in the public sphere are only in the draft stage, incidents of women being asked to leave a room or cover their bodies have become more frequent and egregious. And though the government has yet to annex the occupied territories, it has endorsed inhumane and unprecedented settler violence and has shed any prior restraint when it comes to the seizure of Palestinian land and resources.
The gradual unfolding of these new realities creates a significant challenge for Israel’s protest movement. Unlike a Knesset vote on an anti-democratic law, these changes do not occur in ways that attract media attention. Netanyahu is a master of evading, diffusing, and discrediting criticism that reveals his intentions. Exhausted from months of street protests, the Israeli public is uncertain about what is actually going on and where their country is headed.
Even so, there are reasons for optimism. Hundreds of thousands of Israelis have become more politically aware and engaged than ever before. The protests have created new avenues for collaboration, connectivity, and creativity. I hope that this translates into ongoing civic participation. October’s municipal elections will be critical; one hopes that the public rises to the occasion like the Israeli legal community did in elections this month for the Israel Bar Association, mobilizing to deny a government collaborator the top post.)
Once the protests stop this madness (I am confident that they will), we will need to update our understanding of how legal change unfolds. Recent events in Israel demonstrate that while laws on the books are important, legislation is not the only way to govern – or change a regime.