Israel Has Already Lost
In March, unprecedented outcry compelled Israel’s government to pause its attempted overhaul of the country’s judiciary. But the reprieve was only temporary. At the time, the far-right ministers Itamar Ben-Gvir and Bezalel Smotrich assured supporters that the reforms would pass by late July.
This did not happen. Instead, on Monday, in the final week of the Israeli Parliament’s summer session, the ruling coalition passed the least significant component of its proposed legislation: curtailing the Supreme Court’s ability to use the “reasonableness standard” when reviewing government decisions. Contrary to the far-right’s pledge, the government did not enact its plan to subordinate the appointment of Supreme Court judges to politicians. Nor did it grant the coalition the ability to override judicial decisions.
In other words, Israel’s democracy—flawed as it is—remains intact, for now. Far from incapacitated, the country’s highest court is already rushing to convene an unprecedented session to rule on the legality of this week’s effort to curb its powers. But whether or not Israel erodes its democratic guardrails in the months ahead, its people have already lost something similarly essential: basic social trust.
[Yair Rosenberg: The three biggest misconceptions about Israel’s upheaval]
Israel’s warring camps are ostensibly fighting over the reasonableness doctrine, a technical tool inherited from British common law that allows the country’s high court to overrule certain government decisions, though not legislation. But fundamentally, this debate is not about the law itself, which few Israelis could easily explain. It is about whose judgment is trusted to safeguard the country’s democracy. Put crudely, the reasonableness doctrine is a subjective standard that has allowed Israel’s justices to substitute their own considerations for the legislature’s when assessing the merits of certain government actions and civil-service appointments. Given that the members of Israel’s Supreme Court are appointed by a panel composed mostly of other judges and lawyers, a credible case exists for restraining this capacity, which lacks democratic accountability.
But this week’s reform did not take place in a vacuum. It took place in the context of a power grab by the most hard-right government in Israeli history—one that received only 48.4 percent of the vote in the last election. If Israel’s judges no longer get to decide which administrative decisions are “reasonable,” that means that the politicians in power do, even if they, too, lack a mandate. And today, those politicians include homophobes, convicted criminals, aspiring theocrats, and proud nationalist chauvinists.
Polls consistently show that two-thirds of Israel’s citizens oppose the ruling coalition’s unilateral overhaul of the judiciary. Put another way, most Israelis simply do not trust the intentions of their own government. They do not believe that Netanyahu, let alone the extremist allies he depends upon to maintain his power, will be more reasonable than the unelected Supreme Court. And they do not believe that the coalition will stop with this small salvo against the judiciary when it has already announced its intentions to deconstruct the entire edifice. The Israeli opposition has lost faith in its countrymen to act in the best interest of the entire nation, which is why its leaders now openly accuse the government of seeking to destroy democracy.
This rancor extends well beyond the usual partisan politics, and it runs both ways. Rather than attempting to calm the waters and reestablish civic trust, Netanyahu’s far-right ministers have rubbed their recent victory in the opposition’s face and promised more of the same. “The salad bar is open,” crowed Ben-Gvir on Saturday night, framing the impending reasonableness reform as merely the appetizer for a much more forbidding buffet. A cannier, more responsible politician would mouth platitudes about how This is a difficult time for Israel, but we are all patriots who want the best for one another and the country. Ben-Gvir does not believe that—and rarely feels compelled to pretend that he does. Instead, he and his allies have cast the hundreds of thousands of anti-overhaul street protesters as “privileged anarchists” and foreign-funded enemies, rather than fellow citizens expressing genuine concern. Something has gone terribly wrong in a country where this is how leaders speak about those they are supposed to shepherd.
[Michael Oren: Israel’s tectonic struggle]
Such an utter collapse of shared solidarity is unprecedented in Israeli history, which is why what happens next is so uncertain. In the days ahead, Israel’s Supreme Court may overturn this first strike against its authority, something it has never done before to a quasi-constitutional “basic law” of this kind. The justices may let the legislation stand but interpret it into irrelevance, coming up with new legal ways to get to the same results that the reasonableness doctrine previously provided. Or the Court may punt entirely, deciding that it lacks the power to overrule such a parliamentary prerogative.
If the Court does undo this decision, it may stall the overhaul, throwing the coalition into chaos and recrimination. Or the reversal may galvanize the far-right’s efforts to pass its entire anti-judicial package, by affirming its belief that small-scale changes will never be enough to change the Court’s jurisprudence. There is a reason, after all, that the right’s original plan included many more components than what has been passed: Removing reasonableness from the judicial toolbox still leaves the rest of the tools, not to mention those who wield them.
In the long run, the current coalition may use further legislation to cement its power, quash the courts, and marginalize its opposition. Or Netanyahu’s government, which is already polling poorly, may be crushed by the consequences of its own body blows to Israel’s economy, security, and internal cohesion, much as the ill-fated economic overhaul of British Prime Minister Liz Truss precipitated her exit. The fall of the reasonableness doctrine is the pebble that begins the avalanche, and the thing about avalanches is that they cannot be controlled.
Still, though the ultimate outcome of this week’s events remains in limbo, one thing is certain: Regardless of whether Israel loses its independent judiciary, it has already lost a core component of any functioning democracy—the sense of collective concern among citizens. And that is something that cannot be fixed by any legislation or court order.