While the election was democratic, Bibi Netanyahu deliberately selected coalition partners from the ideologically dangerous far-right segment of the political spectrum plus added, for good measure, the even more outrageous religious-theocratic-far-right who wasn’t even needed to have a majority because he knew they would be perfect MK ‘lawmakers’ to bring about the most oppressive policies and legislation, leading to autocratic governance in the long run, possibly for 4 years or more. Israel’s majority citizens, believing deeply in democracy – given our past tragic history - inflicted on us by the very same ideologies 75 years ago, are ought to demonstrate not to repeat a grave historical event ending up with a dictatorship.
The Kohelet’s esteemed Think-Tank experts have not looked at the lawmakers who will carry out those laws they are proposing thus would have been far more to the point by strongly advising for a brand new, broadly-agreed-upon constitution if they honestly advocating for a democratic future in the only Jewish state and not an illiberal, frighteningly, far-right one.
Really grateful for a piece that actually explains the judicial / legislative tension and what the reforms would actually do. Most US media coverage conveys a lot of alarm but little substance when it comes to Israel's past three months. Thank you for publishing something informative! And happy to hear informative counter-opinions, as well. I hope Bibi carries on with the reforms eventually.
I knew there had to be more to this than what I was reading everywhere - thank you Free Press!! This article makes me grateful we have a Constitution in the US that spells out our checks and balances, despite imperfect execution. Both Congress and our Supreme Court have certainly made some terrible decisions in accordance with the times yet it seems we are always able to course correct. At the end of the day only Congress can make the laws while the Court determines Constitutionality. Court appointments are ultimately in the hands of the People through the elected Executive Branch with the political pendulum tempered by lifetime appointment. The journey is messy and slow but the road map is clear, and I pray Israel will find a solution to uphold their democracy. Onward Freedom Fighters!
It seems that people are protesting the override aspect of these reforms more specifically, but there is a clear push to make this appear as a more obtuse critique of the entire reform; so as to obfuscate the actual specific issues people are upset about. A fairly classic political tactic we see everywhere... This article simultaneously does a great job explaining the very legitimate reasoning for the reforms, but also seems to be a bit guilty of the same obfuscation of the singular issue being protested (the override) without really addressing how clearly problematic it is.
Elites in Israel rely on the high court to impose their vision on the rest of the country.
Elites in the US rely on elites in Israel to get Israel to fall in line with their foreign policy designs.
A challenge to the power of Israel's high court, then, is a challenge to the authority of the transnational partnership of elites, in which Israeli elites are the junior partner.
The thing is, the elites really do see that authority as rightfully theirs. That's why we've seen the apoplexy from such august institutions as The New York Times. For example, Thomas Friedman recently likened Netanyahu's judicial reforms to Putin's invasion of Ukraine!
I think Friedman had things backwards when he ominously warned that Israel might not survive such a mistake. Just look at how dangerously out of touch the ruling elites in the US have drifted, from urban crime to the Iran deal to the DEI industry and the war on merit.
Being under their thumb is terrible for America. For Israel, it could be fatal.
This conflict had to happen. Israel needs more than The Basic Laws; Israel needs a Constitution, with a Bill of Rights that provide better guide rails than what they have now. I look forward to the "constitutional" compromise that is coming out of this conflict. Let's hope it does not look like the 3/5th compromise of our Constitution, which guaranteed the Civil War since it was in direct conflict with the Declaration of Independence. But I have faith in Israel; after all I remain a proud American Zionist.
Given the high quality of The FP commenters, I do not hesitate to recommend Israeli legal scholar Netta Barak Corren's recently published analysis and recommendations, which is available on her website (luckily translated into English). It's a valuable resource for the educated reader looking to learn more about this unprecedented situation.
"For all its unruliness, no Knesset has ever suggested anything remotely like canceling elections."
There has never been a Knesset as hardline, Orthodox and extreme right-wing as this one, in which the Likud party is the quasi moderating 'adult in the room'. Limiting civil rights of Arabs, LGBTQ individuals or the non-Orthodox is not far-fetched in the least.
When the judiciary is effectively neutered and 61 'you scratch my back I'll scratch yours' potentially corrupt MKs have free rein to legislate away any rights they wish, we should not be surprised if elections are 'tweaked' to allow Netanyahu to stay in power indefinitely.
Thank you so much FREE PRESS for providing us access to all sides of the issue. Barri, after reading your book about antisemitism I now understand how this all works. Once the legacy and mainstream media refers to the legitimately elected government in Israel as "FAR right " or unhinged fascists it provides the conditions for the real antisemites to mainstream their Jew Hate. The rest follow. Jews in the diaspora need to pay very close attention and stop seeing Israel through your limited American lens.
I live in Israel and vote "right wing", and I can confirm this is indeed the most extreme hardline government in the country's history, one that won the parliamentary majority (legally, through the vagaries of the Israeli political system, there are no claims here of "stop the steal" or voter fraud), but crucially NOT the popular majority. Anytime you hear claims of "the will of the people" those are bald-faced lies.
Thank you TheFP for publishing this explanation of what is going on in Israel. Also, I'm glad to see that articles are kept in chronological order, rather than putting the ones with the most likes/comments first. I didn't notice this article until today, so I must have missed it when it was on the "front page". I am hopeful others will see it also as I think it presents a sober, fact-based rebuttal to the article by Matti Friedman. I don't understand the hatred against Netanyahu. I don't doubt that he has his personality flaws, especially after having so much power for so long. Yet, I also don't doubt his love for Israel and the Jewish People.
For years Netanyahu opposed such judicial reforms, this is public knowledge (and don't forget, he was more recently the PM for a dozen years and refused to pursue reforms during that time). So why the 180 now?
1. Only now does he need to neuter the judiciary, in order to extricate himself from his legal woes (he has been indicted for breach of trust, bribery and fraud).
2. He has alienated every single one of his former centre/right allies through lies and deceit, and is now left only with the ultra-orthodox (who will support any government that will give them the huge budgets they need for their large nonworking communities as well as automatic exemptions from service), and the "messianic" far-right religious (who would like to annex the entire Judea/Samaria, a process which would then lead to actual apartheid, not the lies that Israel is subjected to currently, but the real deal). If Netanyahu cannot appease these coalition partners - whose ultimate goals require the neutering of the judiciary, to avoid those pesky "human rights" issues - he is out of power, this time likely for good.
Kudos to Koppel and Kontorovich for their brief but clear explanation of why judicial reforms are so needed in Israel. One aspect which they allude to but do not explain and develop sufficiently is that Barak's basis for his self-declared juristocracy is a verbal sleight of tongue in which he deftly but deceptively redefines "democracy". The Jeffersonian democracy of government by the consent of the governed or Lincoln's formulation of "government of the people, by the people, and for the people" -- concepts deeply familiar to Americans -- are dismissively disparaged by Barak as "formal democracy".
In its stead he posits "substantive democracy" by which he means rule by the judicial system, as headed by the Supreme Court, unfettered by the presence or absence or plain meaning of laws passed by the legislature or policies favored by an elected government. Rather the views and values of the "enlightened" and "progressive", i.e., the elite slivers of society are to guide the promulgations and pronouncements of the court. And who better than to posit what the are these views and values than the justices of the court who, under the Israeli system, effectively propagate themselves by blocking the appointment of any contrary judicial philosophies.
Some additional reading to understand Barak's distortion of democracy:
Shortly after he reached the mandatory retirement age (70) Barak published a book, "The Judge in a Democracy" in which he explained his anti-democratic judicial philosophy. Two reviews:
Richard Posner, a distinguished US jurist, judge and law school professor, reviewed the book and the title of the review says it all: "The Enlightened Despot"
In addition, two articles by one of Barak's long time critics, Jonathan (Yonasan) Rosenblum, and whose own legal knowledge would really irritate Barak especially since Rosenblum is ultra-orthodox (Rosenblum is a graduate of University of Chicago and Yale Law school, long before the latter wokified into ridiculousness).
There is a crucial difference between rebalancing the proper role of the judiciary versus complete evisceration, in a system with no other checks/balances on an intertwined executive/legislature with no formal constitution or direct representation. If you are interested in further discussion of this topic I recommend the Times of Israel's podcast What Matters Now, the first episode with Micha Goodman, in which he expands on this issue.
And just fyi, I'm sure you're not aware of this, but Mishpacha magazine is ultra-orthodox to the extent that women's faces are blurred or not shown. I personally read and enjoy it but would take any political/religious articles with a grain of salt, as their position on certain issues is quite extreme. In another comment I explain the ulterior motives of the charedi communities in Israel vis-a-vis their support for the proposed reforms, and I expect Mishpacha will toe the party line.
The details of the proposed legislation (like the override clause) would be subject to negotiation if the Opposition would show up where discussions are supposed to take place, namely, in the Knesset building. Instead they have chosen to boycott the proceedings, sow hysteria, and take to the streets. The reason for this is that the reforms would correct the most frustrating aspect of Israeli democracy -- that the Right continually wins elections but the Left keeps ruling, via the supreme and constantly exercised authority of the High Court. The Court has been the self-perpetuating "home court" of the Left for decades, where everybody has standing and every Government decision is disputed.
This is far more than a "left/right" issue, although it is understandable that many Americans view the situation through that prism. I have calculated roughly 1/3 of those who oppose these reforms are fully "right-wing", with the rest identifying as centrist and a smaller percentage fully left-wing (the Arab communities who constitute 20% of the population are definitely between a rock and a hard place and have been wisely staying out of the fray, although it's safe to assume they oppose the reforms since their civil rights would be in jeopardy). There has been no true left-wing in Israel since the Second Intifada traumatized a generation and the "Peace Camp" disintegrated; Noa Tishby discusses this phenomenon at length in her excellent book, which I highly recommend. And yes, today for the first time both she and Miriam Adelson - staunch right-wing supporters - publicly criticized the government and called for compromise.
As you say, using the term Left to be synonymous with the old "Peace Camp" is indeed out of date. On the other hand, Left/Right in Israel does cover alignments of opinion across a wide range of issues, and is reflected in the coalitions that form (or fail to form) after elections. And in Supreme Court decisions. In any case, I agree that the camps formed around this issue have blurred boundaries.
There is a small but growing right-wing protest movement whose members support reforms through dialogue and consensus. They are unhappy with the framing of the issue as a fundamental left vs right clash. One of the organizers insightfully pointed out this schism can be traced partly to years of incitement from Netanyahu referring to any opponents as leftists and traitors. I can tell you from personal experience that "smolanit" (or leftist) is a preferred insult amongst the younger demographic. Unfortunately it is a universal human tendency to gravitate towards charismatic populist demagogues rather than the quieter, more thoughtful and collaborative, less bombastic leaders.
The coalition came in and said: we're passing this judicial reform before the Passover break and we're not making any changes. Levin was clear on that from day 1. What should the opposition do in that case? Why is the coalition even proposing the override clause?
Every part of the proposed reform is intended to redress a critical issue, including the override. Back in 2003 a public committee headed by a retired Supreme Court judge considered how to mainstream Haredi youth into the job market. It came to the conclusion that Israeli society would be better off letting haredi youth work than refusing to let them work unless they go to the army first. That report became a law, approved by the Knesset 56-41.
I hate that decision and that law. I think it's wrong and wrong-headed. But the Knesset thought it was a better solution than doing nothing. The Supreme Court disagreed and, using incredible (non-credible) legal calisthenics, struck down the law on the grounds that it violated the "human dignity" of draftees. And here we are, twenty years later, with no solution.
The override clause is a 5th-rate solution to the court's inability to recognize that messy political compromises are nevertheless a better solution to messy social problems than purism dispensed by a bench of philosopher-kings. The clause is truly dangerous. We have to hope that at some point we can convince haredim that judicial appointments by the majority + the need for a supermajority to strike down laws are sufficient to create a court willing to acknowledge that Knesset's authority to legislate.
As soon as the President announced he was willing to broker a compromise the coalition indicated it was willing, and in fact negotiations have been going on non-stop. Read the news.
Why do you act like the override provision is a side clause? The main effort of the protests is to stop the override clause because it would essentially end judicial oversight in Israel. Your essay says 1) we need judicial change, 2) these are the proposed changes, and 3) by the way, there’s an override clause that we don’t support. Most Israelis agree with 1 and a majority probably agree with most of the proposed changes. But the override clause is a complete show stopper and this clause alone is what is driving the divide right now between Israelis. To act like the override clause is some innocent side note is disingenuous. Your essay states that there needs to be checks and balances and I fully agree. Due to the override clause, there would be NO checks and balances. And at no point have the coalition leaders Levin and Rothman said they are willing to remove the override clause.
That's a reasonable question. I would answer each of its components like so:
1. Although many people agree with judicial reform in principle, the leaders of the "resistance" -- in media, in the justice system, in politics and in the civil service -- have never admitted to a reform as being other than "the end of democracy", so it's fair to assume that even without the override we'd be seeing this upheaval.
2. The override is not a good idea, but there's a big difference between a bad law and the end of democracy. Ever tried corralling a fractious coalition of several parties representing different parts of society into voting in lockstep? That's why Israeli governments tend to not live out their full terms. I don't imagine a vote as momentous as an override of the High Court could be arranged without paying a heavy -- perhaps too heavy -- political price.
Your #2 assumes there would still be regular elections in Israel if the reforms pass in full. Considering the explicit goals of those pushing for this extreme overhaul, this assumption is not a forgone conclusion, as the ruling MKs would have free rein to 'tweak' the timing of elections, those allowed to vote, and any other variable that would ensure they stay in power indefinitely. Anyone who doubts the potential for this sort of abuse from this particular Knesset/PM is simply naive or does not understand the full ramifications of the 61 MK override.
I am, in fact assuming that. Rather like I'm assuming that the High Court won't simply invalidate any election that doesn't turn out the way it wants -- after all, who's to stop it? But I don't assume that it'll do that, despite a marked penchant for intervening in government without explicit basis in law.
By the same token I don't expect the Knesset to pass a law installing itself permanently. Had any member of the coalition expressed the intention of doing so -- which is the only thing that would qualify as "explicit" -- I would have to revise my opinion.
Rather than claiming I'm naïve, which of course is possible but difficult to establish, perhaps provide some of the obvious evidence that the coalition intends to the do the things you claim.
I base my concerns on the publicly available evidence of both the moral fibre of the current coalition MKs (which sadly leaves much to be desired) and their ultimate goals in supporting these reforms. Any Israeli not a part of this ruling minority should be concerned. That's not to say that some form of judicial reforms are not advisable - obviously within a proper timeframe and via consensus - but the 61 MK override is an obvious power grab and poses the greatest danger. For the authors of the article to casually dismiss this issue as irrelevant since it will never be passed - contrary to the statements made by both Levin and Rothman - is disingenuous and misleading.
Jews have a history of ignoring danger signs, to our peril. It's not surprising that the bar is perhaps lower than others might be comfortable with.
So nothing explicit, nothing to indicate that the laws have been proposed with the purpose you stated in mind, or even that those are the goals of the coalition.
Also, calling the government a "minority" is just sophistry. It has the majority of seats in the Knesset. If some other coalition had the majority of seats in the Knesset *it* would be the government. The fact that many votes (including mine, as it happens) "didn't count" because those parties didn't pass the threshold doesn't tell us what the government would look like had they been counted, and anyway that's just not the way governments here are formed.
It would be nice if there were wide agreement on how exactly to rein in the Court. It's worth trying to achieve. Still, the government gets to govern and the opposition has a chance to weigh in. Laws aren't made by demonstrators. Were I to point out the laws that were passed by left-wing governments that infuriated and injured significant chunks of the populace and were pushed through without so much as a by-your-leave it wouldn't be to claim that "well, they did it to us so now we can do it to them" (I'm not part of the "us", anyway); it would simply be to show that that's the way the government works. As Yitzhak Rabin said (quoting, I think, Menachem Begin), "A majority of one is still a majority".
You maintain that the override is "an obvious power grab and poses the greatest danger". I don't think so. Neither of us knows, but I'm not telling anyone that the sky is falling, we should trash the economy, shut down the country and invite everyone in the world to twist Israel's arm, as many of the resistance leaders are doing. For that I think you should offer a lot more evidence. Or at least some.
And definitely we have sometimes believed that some bad thing wouldn't happen and then it did. Then again, much more often we believed that some bad thing wouldn't happen and it didn't, so if that's your reasoning, I like our odds.
You are obviously entitled to your opinion. Perhaps you are naturally more of an optimist. I am definitely more pessimistic about the often malign influence of human nature.
Nobody is claiming the government is not legitimate. It is disingenuous however to claim they represent majority views on this issue, which is clearly not the case. Is this how the government works? Of course. Do citizens have a right to protest? Yup, at least for now. Does that make them "anarchists" as so many are parroting? (Which is btw pretty rich, coming from the anarchist poster boy Ben Gvir, whose boast just prior to the Rabin assassination is infamous).
I assume you would be as consistent in criticizing all protests that disrupt daily life, including those of the religious right before the Disengagement, disabled protestors and those from the Ethiopian community. The fact that the current protests are more disruptive because so many participate is not a legitimate reason to dismiss them.
As to the economic fallout: financial experts and economists are generally intellectually capable, risk-averse, and are fully within their rights to analyze the situation and respond appropriately. The responsibility for that worrying trend is squarely on the government for progressing in such a reckless manner, not on the opposition.
Oh, and since you asked.... I just remembered one concrete example of a law that Shas introduced and quickly withdrew, obviously waiting for a more auspicious time when the judiciary can no longer interfere: they attempted to criminalize (with heavy fines and jail time) 'immodest dress' for women and any mixed prayer services throughout the entire Western Wall complex, whereas the status quo is coverup before entering the actual prayer area and egalitarian prayer at the separate southern section, with free movement throughout the main plaza. Considering the majority of world Jewry - and indeed the Israeli population - is not Orthodox, this would definitely qualify as religious coercion. There is a fine line between expecting respect for a particular site of worship and inappropriately oppressive rules related solely to the desire to impose one set of standards over others. Many justly see this episode as the 'canary in the coal mine'.
Thank you. So relieved to see this after Matti Friedman’s piece. I appreciate and agree with how the article describes the current judicial system. The detested override clause is being pushed more by the ultra orthodox parties, which is certainly alarming for all non haredi citizens. I do agree with Koppel but would add that the current coalition is behaving somewhat like a train wreck even without the protests turning up the heat. Taken all together - the judicial reform with the override clause, inflammatory statements by the new police minister, vaguely changing policies in the west bank with upcoming Ramadan, and the very public gutting of government ministries just to appease politicians (resulting in about 10-15 ministers too many) - create unease even among people who support judicial reform.
I also wonder why nothing is being said about how the Supreme Court also acts as Court of Appeals. Why is there no push to separate it?
While the election was democratic, Bibi Netanyahu deliberately selected coalition partners from the ideologically dangerous far-right segment of the political spectrum plus added, for good measure, the even more outrageous religious-theocratic-far-right who wasn’t even needed to have a majority because he knew they would be perfect MK ‘lawmakers’ to bring about the most oppressive policies and legislation, leading to autocratic governance in the long run, possibly for 4 years or more. Israel’s majority citizens, believing deeply in democracy – given our past tragic history - inflicted on us by the very same ideologies 75 years ago, are ought to demonstrate not to repeat a grave historical event ending up with a dictatorship.
The Kohelet’s esteemed Think-Tank experts have not looked at the lawmakers who will carry out those laws they are proposing thus would have been far more to the point by strongly advising for a brand new, broadly-agreed-upon constitution if they honestly advocating for a democratic future in the only Jewish state and not an illiberal, frighteningly, far-right one.
Really grateful for a piece that actually explains the judicial / legislative tension and what the reforms would actually do. Most US media coverage conveys a lot of alarm but little substance when it comes to Israel's past three months. Thank you for publishing something informative! And happy to hear informative counter-opinions, as well. I hope Bibi carries on with the reforms eventually.
I knew there had to be more to this than what I was reading everywhere - thank you Free Press!! This article makes me grateful we have a Constitution in the US that spells out our checks and balances, despite imperfect execution. Both Congress and our Supreme Court have certainly made some terrible decisions in accordance with the times yet it seems we are always able to course correct. At the end of the day only Congress can make the laws while the Court determines Constitutionality. Court appointments are ultimately in the hands of the People through the elected Executive Branch with the political pendulum tempered by lifetime appointment. The journey is messy and slow but the road map is clear, and I pray Israel will find a solution to uphold their democracy. Onward Freedom Fighters!
It seems that people are protesting the override aspect of these reforms more specifically, but there is a clear push to make this appear as a more obtuse critique of the entire reform; so as to obfuscate the actual specific issues people are upset about. A fairly classic political tactic we see everywhere... This article simultaneously does a great job explaining the very legitimate reasoning for the reforms, but also seems to be a bit guilty of the same obfuscation of the singular issue being protested (the override) without really addressing how clearly problematic it is.
The key here is that Israel has no formal constitution with checks and balances. Maybe they should concentrate on creating one.
Elites in Israel rely on the high court to impose their vision on the rest of the country.
Elites in the US rely on elites in Israel to get Israel to fall in line with their foreign policy designs.
A challenge to the power of Israel's high court, then, is a challenge to the authority of the transnational partnership of elites, in which Israeli elites are the junior partner.
The thing is, the elites really do see that authority as rightfully theirs. That's why we've seen the apoplexy from such august institutions as The New York Times. For example, Thomas Friedman recently likened Netanyahu's judicial reforms to Putin's invasion of Ukraine!
I think Friedman had things backwards when he ominously warned that Israel might not survive such a mistake. Just look at how dangerously out of touch the ruling elites in the US have drifted, from urban crime to the Iran deal to the DEI industry and the war on merit.
Being under their thumb is terrible for America. For Israel, it could be fatal.
This conflict had to happen. Israel needs more than The Basic Laws; Israel needs a Constitution, with a Bill of Rights that provide better guide rails than what they have now. I look forward to the "constitutional" compromise that is coming out of this conflict. Let's hope it does not look like the 3/5th compromise of our Constitution, which guaranteed the Civil War since it was in direct conflict with the Declaration of Independence. But I have faith in Israel; after all I remain a proud American Zionist.
Given the high quality of The FP commenters, I do not hesitate to recommend Israeli legal scholar Netta Barak Corren's recently published analysis and recommendations, which is available on her website (luckily translated into English). It's a valuable resource for the educated reader looking to learn more about this unprecedented situation.
"For all its unruliness, no Knesset has ever suggested anything remotely like canceling elections."
There has never been a Knesset as hardline, Orthodox and extreme right-wing as this one, in which the Likud party is the quasi moderating 'adult in the room'. Limiting civil rights of Arabs, LGBTQ individuals or the non-Orthodox is not far-fetched in the least.
When the judiciary is effectively neutered and 61 'you scratch my back I'll scratch yours' potentially corrupt MKs have free rein to legislate away any rights they wish, we should not be surprised if elections are 'tweaked' to allow Netanyahu to stay in power indefinitely.
Thank you so much FREE PRESS for providing us access to all sides of the issue. Barri, after reading your book about antisemitism I now understand how this all works. Once the legacy and mainstream media refers to the legitimately elected government in Israel as "FAR right " or unhinged fascists it provides the conditions for the real antisemites to mainstream their Jew Hate. The rest follow. Jews in the diaspora need to pay very close attention and stop seeing Israel through your limited American lens.
I live in Israel and vote "right wing", and I can confirm this is indeed the most extreme hardline government in the country's history, one that won the parliamentary majority (legally, through the vagaries of the Israeli political system, there are no claims here of "stop the steal" or voter fraud), but crucially NOT the popular majority. Anytime you hear claims of "the will of the people" those are bald-faced lies.
Thank you TheFP for publishing this explanation of what is going on in Israel. Also, I'm glad to see that articles are kept in chronological order, rather than putting the ones with the most likes/comments first. I didn't notice this article until today, so I must have missed it when it was on the "front page". I am hopeful others will see it also as I think it presents a sober, fact-based rebuttal to the article by Matti Friedman. I don't understand the hatred against Netanyahu. I don't doubt that he has his personality flaws, especially after having so much power for so long. Yet, I also don't doubt his love for Israel and the Jewish People.
For years Netanyahu opposed such judicial reforms, this is public knowledge (and don't forget, he was more recently the PM for a dozen years and refused to pursue reforms during that time). So why the 180 now?
1. Only now does he need to neuter the judiciary, in order to extricate himself from his legal woes (he has been indicted for breach of trust, bribery and fraud).
2. He has alienated every single one of his former centre/right allies through lies and deceit, and is now left only with the ultra-orthodox (who will support any government that will give them the huge budgets they need for their large nonworking communities as well as automatic exemptions from service), and the "messianic" far-right religious (who would like to annex the entire Judea/Samaria, a process which would then lead to actual apartheid, not the lies that Israel is subjected to currently, but the real deal). If Netanyahu cannot appease these coalition partners - whose ultimate goals require the neutering of the judiciary, to avoid those pesky "human rights" issues - he is out of power, this time likely for good.
Kudos to Koppel and Kontorovich for their brief but clear explanation of why judicial reforms are so needed in Israel. One aspect which they allude to but do not explain and develop sufficiently is that Barak's basis for his self-declared juristocracy is a verbal sleight of tongue in which he deftly but deceptively redefines "democracy". The Jeffersonian democracy of government by the consent of the governed or Lincoln's formulation of "government of the people, by the people, and for the people" -- concepts deeply familiar to Americans -- are dismissively disparaged by Barak as "formal democracy".
In its stead he posits "substantive democracy" by which he means rule by the judicial system, as headed by the Supreme Court, unfettered by the presence or absence or plain meaning of laws passed by the legislature or policies favored by an elected government. Rather the views and values of the "enlightened" and "progressive", i.e., the elite slivers of society are to guide the promulgations and pronouncements of the court. And who better than to posit what the are these views and values than the justices of the court who, under the Israeli system, effectively propagate themselves by blocking the appointment of any contrary judicial philosophies.
Some additional reading to understand Barak's distortion of democracy:
Shortly after he reached the mandatory retirement age (70) Barak published a book, "The Judge in a Democracy" in which he explained his anti-democratic judicial philosophy. Two reviews:
Richard Posner, a distinguished US jurist, judge and law school professor, reviewed the book and the title of the review says it all: "The Enlightened Despot"
https://newrepublic.com/article/60919/enlightened-despot
And if his name does not cause you paroxysms, the late Robert Bork also reviewed the book: https://azure.org.il/download/magazine/1119AZ_27_bork_review.pdf
Posner's review cites Bork's several times.
In addition, two articles by one of Barak's long time critics, Jonathan (Yonasan) Rosenblum, and whose own legal knowledge would really irritate Barak especially since Rosenblum is ultra-orthodox (Rosenblum is a graduate of University of Chicago and Yale Law school, long before the latter wokified into ridiculousness).
https://mishpacha.com/he-who-grabs-too-much-may-lose-everything/
https://mishpacha.com/a-question-of-modesty/
There is a crucial difference between rebalancing the proper role of the judiciary versus complete evisceration, in a system with no other checks/balances on an intertwined executive/legislature with no formal constitution or direct representation. If you are interested in further discussion of this topic I recommend the Times of Israel's podcast What Matters Now, the first episode with Micha Goodman, in which he expands on this issue.
And just fyi, I'm sure you're not aware of this, but Mishpacha magazine is ultra-orthodox to the extent that women's faces are blurred or not shown. I personally read and enjoy it but would take any political/religious articles with a grain of salt, as their position on certain issues is quite extreme. In another comment I explain the ulterior motives of the charedi communities in Israel vis-a-vis their support for the proposed reforms, and I expect Mishpacha will toe the party line.
You may know Mishpacha but you don't seem to know Jonathan Rosenblum and his intellectual integrity.
It is gratifying for this subscriber to see a balanced presentation.
The details of the proposed legislation (like the override clause) would be subject to negotiation if the Opposition would show up where discussions are supposed to take place, namely, in the Knesset building. Instead they have chosen to boycott the proceedings, sow hysteria, and take to the streets. The reason for this is that the reforms would correct the most frustrating aspect of Israeli democracy -- that the Right continually wins elections but the Left keeps ruling, via the supreme and constantly exercised authority of the High Court. The Court has been the self-perpetuating "home court" of the Left for decades, where everybody has standing and every Government decision is disputed.
This is far more than a "left/right" issue, although it is understandable that many Americans view the situation through that prism. I have calculated roughly 1/3 of those who oppose these reforms are fully "right-wing", with the rest identifying as centrist and a smaller percentage fully left-wing (the Arab communities who constitute 20% of the population are definitely between a rock and a hard place and have been wisely staying out of the fray, although it's safe to assume they oppose the reforms since their civil rights would be in jeopardy). There has been no true left-wing in Israel since the Second Intifada traumatized a generation and the "Peace Camp" disintegrated; Noa Tishby discusses this phenomenon at length in her excellent book, which I highly recommend. And yes, today for the first time both she and Miriam Adelson - staunch right-wing supporters - publicly criticized the government and called for compromise.
As you say, using the term Left to be synonymous with the old "Peace Camp" is indeed out of date. On the other hand, Left/Right in Israel does cover alignments of opinion across a wide range of issues, and is reflected in the coalitions that form (or fail to form) after elections. And in Supreme Court decisions. In any case, I agree that the camps formed around this issue have blurred boundaries.
There is a small but growing right-wing protest movement whose members support reforms through dialogue and consensus. They are unhappy with the framing of the issue as a fundamental left vs right clash. One of the organizers insightfully pointed out this schism can be traced partly to years of incitement from Netanyahu referring to any opponents as leftists and traitors. I can tell you from personal experience that "smolanit" (or leftist) is a preferred insult amongst the younger demographic. Unfortunately it is a universal human tendency to gravitate towards charismatic populist demagogues rather than the quieter, more thoughtful and collaborative, less bombastic leaders.
The coalition came in and said: we're passing this judicial reform before the Passover break and we're not making any changes. Levin was clear on that from day 1. What should the opposition do in that case? Why is the coalition even proposing the override clause?
Every part of the proposed reform is intended to redress a critical issue, including the override. Back in 2003 a public committee headed by a retired Supreme Court judge considered how to mainstream Haredi youth into the job market. It came to the conclusion that Israeli society would be better off letting haredi youth work than refusing to let them work unless they go to the army first. That report became a law, approved by the Knesset 56-41.
I hate that decision and that law. I think it's wrong and wrong-headed. But the Knesset thought it was a better solution than doing nothing. The Supreme Court disagreed and, using incredible (non-credible) legal calisthenics, struck down the law on the grounds that it violated the "human dignity" of draftees. And here we are, twenty years later, with no solution.
The override clause is a 5th-rate solution to the court's inability to recognize that messy political compromises are nevertheless a better solution to messy social problems than purism dispensed by a bench of philosopher-kings. The clause is truly dangerous. We have to hope that at some point we can convince haredim that judicial appointments by the majority + the need for a supermajority to strike down laws are sufficient to create a court willing to acknowledge that Knesset's authority to legislate.
As soon as the President announced he was willing to broker a compromise the coalition indicated it was willing, and in fact negotiations have been going on non-stop. Read the news.
Why do you act like the override provision is a side clause? The main effort of the protests is to stop the override clause because it would essentially end judicial oversight in Israel. Your essay says 1) we need judicial change, 2) these are the proposed changes, and 3) by the way, there’s an override clause that we don’t support. Most Israelis agree with 1 and a majority probably agree with most of the proposed changes. But the override clause is a complete show stopper and this clause alone is what is driving the divide right now between Israelis. To act like the override clause is some innocent side note is disingenuous. Your essay states that there needs to be checks and balances and I fully agree. Due to the override clause, there would be NO checks and balances. And at no point have the coalition leaders Levin and Rothman said they are willing to remove the override clause.
This comment nails it. This is exactly how I felt after reading this.
That's a reasonable question. I would answer each of its components like so:
1. Although many people agree with judicial reform in principle, the leaders of the "resistance" -- in media, in the justice system, in politics and in the civil service -- have never admitted to a reform as being other than "the end of democracy", so it's fair to assume that even without the override we'd be seeing this upheaval.
2. The override is not a good idea, but there's a big difference between a bad law and the end of democracy. Ever tried corralling a fractious coalition of several parties representing different parts of society into voting in lockstep? That's why Israeli governments tend to not live out their full terms. I don't imagine a vote as momentous as an override of the High Court could be arranged without paying a heavy -- perhaps too heavy -- political price.
Your #2 assumes there would still be regular elections in Israel if the reforms pass in full. Considering the explicit goals of those pushing for this extreme overhaul, this assumption is not a forgone conclusion, as the ruling MKs would have free rein to 'tweak' the timing of elections, those allowed to vote, and any other variable that would ensure they stay in power indefinitely. Anyone who doubts the potential for this sort of abuse from this particular Knesset/PM is simply naive or does not understand the full ramifications of the 61 MK override.
I am, in fact assuming that. Rather like I'm assuming that the High Court won't simply invalidate any election that doesn't turn out the way it wants -- after all, who's to stop it? But I don't assume that it'll do that, despite a marked penchant for intervening in government without explicit basis in law.
By the same token I don't expect the Knesset to pass a law installing itself permanently. Had any member of the coalition expressed the intention of doing so -- which is the only thing that would qualify as "explicit" -- I would have to revise my opinion.
Rather than claiming I'm naïve, which of course is possible but difficult to establish, perhaps provide some of the obvious evidence that the coalition intends to the do the things you claim.
I base my concerns on the publicly available evidence of both the moral fibre of the current coalition MKs (which sadly leaves much to be desired) and their ultimate goals in supporting these reforms. Any Israeli not a part of this ruling minority should be concerned. That's not to say that some form of judicial reforms are not advisable - obviously within a proper timeframe and via consensus - but the 61 MK override is an obvious power grab and poses the greatest danger. For the authors of the article to casually dismiss this issue as irrelevant since it will never be passed - contrary to the statements made by both Levin and Rothman - is disingenuous and misleading.
Jews have a history of ignoring danger signs, to our peril. It's not surprising that the bar is perhaps lower than others might be comfortable with.
So nothing explicit, nothing to indicate that the laws have been proposed with the purpose you stated in mind, or even that those are the goals of the coalition.
Also, calling the government a "minority" is just sophistry. It has the majority of seats in the Knesset. If some other coalition had the majority of seats in the Knesset *it* would be the government. The fact that many votes (including mine, as it happens) "didn't count" because those parties didn't pass the threshold doesn't tell us what the government would look like had they been counted, and anyway that's just not the way governments here are formed.
It would be nice if there were wide agreement on how exactly to rein in the Court. It's worth trying to achieve. Still, the government gets to govern and the opposition has a chance to weigh in. Laws aren't made by demonstrators. Were I to point out the laws that were passed by left-wing governments that infuriated and injured significant chunks of the populace and were pushed through without so much as a by-your-leave it wouldn't be to claim that "well, they did it to us so now we can do it to them" (I'm not part of the "us", anyway); it would simply be to show that that's the way the government works. As Yitzhak Rabin said (quoting, I think, Menachem Begin), "A majority of one is still a majority".
You maintain that the override is "an obvious power grab and poses the greatest danger". I don't think so. Neither of us knows, but I'm not telling anyone that the sky is falling, we should trash the economy, shut down the country and invite everyone in the world to twist Israel's arm, as many of the resistance leaders are doing. For that I think you should offer a lot more evidence. Or at least some.
And definitely we have sometimes believed that some bad thing wouldn't happen and then it did. Then again, much more often we believed that some bad thing wouldn't happen and it didn't, so if that's your reasoning, I like our odds.
You are obviously entitled to your opinion. Perhaps you are naturally more of an optimist. I am definitely more pessimistic about the often malign influence of human nature.
Nobody is claiming the government is not legitimate. It is disingenuous however to claim they represent majority views on this issue, which is clearly not the case. Is this how the government works? Of course. Do citizens have a right to protest? Yup, at least for now. Does that make them "anarchists" as so many are parroting? (Which is btw pretty rich, coming from the anarchist poster boy Ben Gvir, whose boast just prior to the Rabin assassination is infamous).
I assume you would be as consistent in criticizing all protests that disrupt daily life, including those of the religious right before the Disengagement, disabled protestors and those from the Ethiopian community. The fact that the current protests are more disruptive because so many participate is not a legitimate reason to dismiss them.
As to the economic fallout: financial experts and economists are generally intellectually capable, risk-averse, and are fully within their rights to analyze the situation and respond appropriately. The responsibility for that worrying trend is squarely on the government for progressing in such a reckless manner, not on the opposition.
Oh, and since you asked.... I just remembered one concrete example of a law that Shas introduced and quickly withdrew, obviously waiting for a more auspicious time when the judiciary can no longer interfere: they attempted to criminalize (with heavy fines and jail time) 'immodest dress' for women and any mixed prayer services throughout the entire Western Wall complex, whereas the status quo is coverup before entering the actual prayer area and egalitarian prayer at the separate southern section, with free movement throughout the main plaza. Considering the majority of world Jewry - and indeed the Israeli population - is not Orthodox, this would definitely qualify as religious coercion. There is a fine line between expecting respect for a particular site of worship and inappropriately oppressive rules related solely to the desire to impose one set of standards over others. Many justly see this episode as the 'canary in the coal mine'.
Thank you. So relieved to see this after Matti Friedman’s piece. I appreciate and agree with how the article describes the current judicial system. The detested override clause is being pushed more by the ultra orthodox parties, which is certainly alarming for all non haredi citizens. I do agree with Koppel but would add that the current coalition is behaving somewhat like a train wreck even without the protests turning up the heat. Taken all together - the judicial reform with the override clause, inflammatory statements by the new police minister, vaguely changing policies in the west bank with upcoming Ramadan, and the very public gutting of government ministries just to appease politicians (resulting in about 10-15 ministers too many) - create unease even among people who support judicial reform.
I also wonder why nothing is being said about how the Supreme Court also acts as Court of Appeals. Why is there no push to separate it?