Why Did Israel’s Judiciary Become an Enemy of the People?
In the Israeli elections
of March 2020, the third out of four in just two years, parties seeking to oust
Prime Minister Benjamin Netanyahu won a slim majority and quickly set about
preparing to elect a new speaker of Israel’s Knesset. But in an unprecedented
move, the outgoing speaker, a member of Netanyahu’s governing Likud, refused to
hold the vote. Then he suspended the legislature.A few days later,
Israel’s High Court of Justice ordered him to hold the vote. Instead of
complying, the speaker, Yuli Edelstein, resigned. The country was plunged
briefly into legal-political pandemonium.While experts warned of a
constitutional crisis, senior Likud figures lashed out at the court. Edelstein said: “The High Court decision constitutes a gross and arrogant
intervention of the judiciary in the affairs of the elected
legislature.” The justice minister himself, also a Likud man, called
directly to defy the court’s order. A third
Likud minister fumed: “The Court has
officially taken control of the Knesset and turned the Speaker into a rubber
stamp.” The Trumpian
anti-judiciary sentiment surely reflected Netanyahu’s desperation to stay in
power. But those screeds were just the top layer of a long-term, multipronged
assault on the legitimacy of Israel’s judiciary. The effort represents a
confluence of right-wing interests and helps advance a far-right nationalist
agenda. And the image peddled by the right of the judiciary as an enemy of the
people has been effective in part because its roots go back to the start of
statehood.In 1948, Israel’s new
leaders created an independent and secular judiciary along the Western model.
This was widely accepted in most quarters. The new state’s religious Zionist
leaders, however, viewed secular law as an infringement on the superiority of
Jewish religious law that they believed should define the emerging state. When
the Supreme Court was established, according to historian Alexander Kaye, the
two leading rabbis boycotted the ceremony. The Ashkenazi Chief Rabbi Isaac
Herzog (grandfather of Israel’s brand-new president, who bears his name), writes Kaye in The Invention of Jewish Theocracy: The Struggle for Legal Authority in
Modern Israel, viewed the establishment of the secular court as a
“catastrophic betrayal of the Jewish tradition.”Tension between the
religious and secular parties in Israel’s first Knesset (which began as a
constituent assembly) over the sources of Israeli law is among the reasons why Israel does not have a
constitution today. The most religious Israeli Jews insist on exclusion from
the country’s compulsory army draft and a monopoly on family law for the entire
Jewish population, alongside other interventions in public life. Attempts to
change their grip over the public sphere have kept these struggles alive over
the years: In 1999, over 250,000 ultra-orthodox Israelis protested
the Supreme Court for rulings advancing separation of religion and state. They called the justices “evil,” “stubborn,”
“rebellious,” and “wicked.” From the late 1970s, a
second group was becoming hostile to the Supreme Court (which doubles as the
High Court of Justice for claims against the state). Israel had been settling
on land conquered during the 1967 War for more than a decade when a landmark
High Court ruling upheld the claims of Palestinian villagers against the
nascent settlement of Elon Moreh, just outside of Nablus. The 1979 Elon Moreh
verdict stunned the settlers. A young woman named Daniella Weiss, later an
iconic settler figure, appealed to Minister of Agriculture Ariel Sharon
(“Shalom Arik!” she wrote, by hand). She argued that the court ruling
“threatened all settlements” and upbraided him for advising them to comply by
moving to a different West Bank area. The settlers convened sympathetic jurists
to hold discussions. Could the standing of
Palestinian petitioners be limited? Michael Sfard, an Israeli human rights
lawyer, noted in his book The Wall and the
Gate that the National Religious Party—the historic party
representing religious Zionist Jews and closely associated with the settler
movement (also forerunner to the Jewish Home, the party Naftali Bennett led
when he entered the Knesset in 2013) sought “emergency bypass laws” around the
court decision. Sharon soon asserted that the court should be relieved of “the burden of having to make
political decisions,” meaning that it should stop interfering in settlement
expansion. Instead, in the 1990s,
the Israeli Supreme Court began to play a more prominent and even more
controversial role in Israeli society. In 1992, the Knesset passed two Basic
Laws—adding to a cluster of existing laws with quasi-constitutional status—laying
out a set of human rights. The court, led by Chief Justice Aharon Barak, began
to issue rulings favoring LGBT equality, gender equality, greater separation of religion and state. In
1995, the court ruled that it could strike down laws found to violate rights
stipulated in the higher Basic Laws, establishing judicial review. The
combination of activism and liberal rulings was a legal turning point in
Israel from the earlier decades when there were hardly any constraints on
government and legislative power, and a less liberal society in general.While survey archives
show that public trust in the court ranged well over 80 percent in the
late 1990s, the constitutional revolution, as it came to be known, had critics.
The older ultra-orthodox anger flared: A ruling favoring the right of secular
Jews to drive through religious neighborhoods on the Sabbath led to personal
threats, requiring a security detail for the chief justice. But some members of the legal
community were skeptical as well. Ruth Gavison, a prominent liberal legal
scholar, was critical of the activist turn. And in 2007, Prime
Minister Ehud Olmert appointed Daniel Friedmann, a conservative law professor,
as justice minister. Friedmann opposed judicial activism; he supported
restrictions on the right of standing, determining which issues would be
admissible (justiciable); and he initiated legislation for the grand target:
limitation of judicial review. But Olmert resigned two years later, to face
imminent indictment on corruption charges. Most of Friedmann’s changes were
moot. By the time Netanyahu won
his second term in 2009, opponents of the court consisted of three main
constituencies: ultra-orthodox Jews; the religious settler community, which continued West Bank expansion and fought occasional unfavorable court rulings
over the decades; and a smattering of critical professionals concerned with
legal theory and constitutional dilemmas—though many other academics supported
the court’s role. Netanyahu did not embrace
the cause immediately. But his populist governing style had evolved from the
1990s. From 2009 to 2013, he presided over a government that drove forward a
salvo of illiberal legislation that analysts from the Israeli Democracy
Institute called “unprecedented.”The drive included bills designed to target Israel’s
Arab Palestinian citizens, undermine left-wing nongovernmental organizations, and stifle calls for
boycott as a form of political protest. Perhaps most famously, there were early
drafts of the “Nation State Law,” which formally elevated Jews above other
citizens. Only some of the bills passed. But more importantly, opponents
challenged some of them in the Supreme Court, which the right wing viewed as
holding a hopelessly liberal bias. Accordingly, right-wing
parliamentarians began introducing a small cluster of bills targeting the court
itself. An “override clause” would have allowed the Knesset to reverse a court
ruling striking down laws the Knesset had passed (the idea was not new, but the
2012 version would make the override easier).
Another proposed limits on the court’s ability to rule on certain
matters; another, limits on the right to petition the court. There
was also early-stage meddling in the makeup of the judicial appointment
committee to favor government-friendly figures. Some have viewed Netanyahu as a
restraining force, since none of the bills actually passed. But a number of them were sponsored by Likud legislators in a party where little happens
without his knowledge—and approval.Netanyahu won another
election mid-decade and appointed Ayelet Shaked as justice minister. Shaked
hailed from the Jewish Home, a party whose support flowed largely from national
religious votes and West Bank settlers. She drew inspiration from Daniel
Friedmann, though she lacked his legal background (she trained as a computer engineer). She too advanced
the override clause, supported splitting the role of the attorney general
(understood to weaken the power of the position), and backed greater influence
of elected political figures on judicial appointment committees, among other
initiatives. Once again, hardly any of
the changes were passed. But Shaked had one concrete success, which will sound
all too familiar to American readers: She stated that 334 judges were appointed
under her term—nearly one-half of all judges in Israel (754 in
2019)—and boasted of appointing judges with conservative leanings.
She oversaw the appointment of six Supreme Court justices (of 15), several of
them conservatives. Now the idea of a
judicial counterrevolution became central to public discourse, with right-wing
media bitterly railing against judicial encroachment on “governability”—an
emerging term implying unrestrained government power. Meanwhile left-leaning
figures—along with many centrists and even moderate right-wingers—anguished
over the fate of democracy under the sustained assault. New think tanks such as
the Kohelet Policy Forum emerged to promote both heavily nationalist policies
and judicial constraints, running on largely anonymous private funding. Smaller
operations such as “Meshilut” (“governability”) followed, devoted primarily to
the issue of the judiciary. The founder of Meshilut has referred to the Supreme
Court as the “thought police”;
in 2021, he entered Knesset with the ultranationalist Religious Zionist party.
Meshilut shares
a funding organization with the most extremist settlement groups in Israel.
Referring to the right-wing efforts in general, Yonah Jeremy Bob, a legal
analyst for the Jerusalem Post, observed parallels to the Federalist Society.
“They figure out long-term strategies, getting smart people to law school,
trainings, judgeships, and influential legal posts,” he said. The top-down
emphasis on conservative judicial appointments could theoretically orient
individual jurists toward more conservative thinking. A former deputy attorney
general, Mike Blass, noted the potential for the aggressive environment to
influence people within the justice system when considering their career
advancement. The anti-judiciary
campaign is inseparable from Israel’s expansionist agenda. New Prime Minister
Naftali Bennett was the leader of Jewish Home, Shaked’s party, while she was
justice minister (their party is currently called Yamina); he has publicly
advocated annexation in the West Bank since 2012. Shaked sought to harmonize Israeli law with the parallel system governing
settlements—a technical obscurity but a powerful statement of her intention to
integrate the settlements permanently into Israeli law, which adds up to
sovereignty, or annexation, by other means. In 2017, Israel passed a highly
controversial law to legalize settlements built on private Palestinian land.
Merav Michaeli, the current head of the Labor Party (and Israel’s new minister
of transportation), asserted in an interview that the government knew the
settlement “regularization” law would be challenged, “and then they could
attack the Supreme Court.” Indeed, when the court struck down the law last June, Bennett responded: “The response to annulment of
the regularization law is two actions … Sovereignty over all settlements in Judea
and Samaria and the Jordan Valley … and an override clause that will return the
power to the representatives of the public.” Edelstein, the erstwhile Likud
Knesset speaker, said, “The High Court has lost it.”The public rhetoric has
become both broader and more extreme in recent years. As the corruption
investigations into Netanyahu unfurled, the right-wing media ire spread beyond
the court, to include the state prosecutor, the attorney general, and the chief
of police. In 2019, Shaked ran the instantly infamous “fascism” campaign ad: a sarcasm-laden spot boasting of her judicial
reforms and concluding, “Smells like democracy to me.”Finally, Netanyahu took
center stage. After the elections of April 2019, he reportedly insisted that potential coalition
partners agree to an immunity law for himself, paired with an override law to
stave off a judicial slap-down. That November, the attorney general announced
Netanyahu’s indictment; the same evening the prime minister unleashed a
full-blown deep-state narrative in a response speech. The state
prosecutor and the police were executing a “leadership coup,” he said, with a
“biased and polluted” investigation. When his trial began in May 2020,
Netanyahu delivered a more elaborate version from the
hallway of the Jerusalem district court, the thrust of which will sound quite
familiar to American ears accustomed to hearing Donald Trump’s laments:“What is on trial today
is an effort to frustrate the will of the people—the attempt to bring down me
and the right-wing camp.… The left has failed to do this at the ballot box.… Elements in the police and the prosecution joined forces with the leftist media … to
manufacture baseless and absurd cases against me.” Netanyahu rarely attacks the
Supreme Court directly, but just days before a new government was sworn in, he
told a TV interviewer that “the surplus power of the Supreme Court,
and the deep state, that’s what will happen here now.” Perhaps, but in the
meantime public trust in the Supreme Court has declined over time, while right,
left, and centrist Israelis are severely polarized on trust in the court,
according to the 2020 Israel Democracy Index. Fewer than half of
Israelis trust the state prosecutor, the attorney general, and the
police (though all rate higher than politicians themselves). Right-wingers
blame judicial overreach and the unwanted liberal agenda (inaccurate); the left
blames the top-down assault. Either way, riots in Israeli cities in May were an
alarming indication of what a breakdown of law really means.After Israel’s March 2021
election, Netanyahu was initially tapped to form Israel’s government. If he
had, the alignment of interests to undermine the judiciary would have been
complete. His coalition would have included the ultra-orthodox parties alongside
the Jewish supremacist, anti-liberal party called Religious Zionism. Bennett,
the annexationist, and Shaked—Israel’s most influential anti-judiciary minister
to date—would have been coalition partners too. Netanyahu may have sought to
weaken his corruption cases through friendly appointments to the key judicial
spots. Instead, as a parting gesture days ahead of the change of power, his
party unsuccessfully sought to ram through the law to limit standing
before the Supreme Court. Will a coalition
government led by Bennett take a different path? Gideon Saar, the new justice
minister, grew up in Netanyahu’s Likud before breaking away. He advocates
judicial “reforms,” though he has sought to convey a professional, rather than
populist or politically motivated, critique, and a middle ground. In his
inaugural speech, Saar explicitly positioned himself between the
“D9” camp (a common Israeli reference to a bulldozer model)—those who wish to
tear down the judiciary—and the “orthodoxy” that rejects all reform.
Negotiations for the new coalition nearly collapsed when Shaked locked horns
with Merav Michaeli of Labor for a key spot on the judicial appointment
committee. Michaeli eventually compromised in return for Labor control of the
Knesset’s Constitution, Law, and Justice Committee and a presence for the party
on the judicial appointment committee at all times. Michaeli pointed out that since
Israeli law does not provide sufficient protection for minorities (there is no law
directly guaranteeing general equality of all citizens), progress is
left to judicial interpretations—hence the importance of judicial appointments.Michaeli’s point touches
on the deepest and oldest problem: Israel refuses to commit wholeheartedly to
constitutionally grounded human rights. Blass, the former deputy attorney
general, wrote to me: “[Since] the political system has not learned to bridge
the gaps in Israeli society and create a written constitution that will
determine human rights and protections of those rights, and [define] the
authorities of the legislature and the judiciary … the stormy controversies will
likely continue.” The
reticence is not accidental. A more nationalist religious state and permanent
rule over Palestinians both benefit from a weaker judiciary and tenuous
constitutional protections.The new government will
not resolve the 73-year-old problem anytime soon, and expectations are low.
Asked what the first step must be to strengthen the judiciary, Michaeli said,
“Stop attacking it, and start respecting it, that’s all.”This article draws on an in-depth policy report by the author, published in July by the Century Foundation.
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