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.
