opinion
Why the Pro-settler Right Hates
Israel’s Justice System So Much
Susie Gelman
Chris Hoare / Wikipedia
A s Prime Minister Benjamin Netanyahu’s new
government places the Israeli Supreme
Court in the crosshairs, concerned
supporters of Israel, from the Biden administration
to American Jewish communal organizations, are
raising the alarm about the implications that attacks
on Israel’s independent judiciary carry for the
country’s democracy and for the persistence of a
bilateral relationship built on shared values.

Unease on this side of the Atlantic about Israel’s
institutional malaise echoes the chants of protesters
who turned out the last two weeks on streets of Tel
Aviv and other cities to rally against the so-called
“judicial reforms” that would subordinate the court to
the Knesset, eroding a major check on government
power in the Jewish state.

While the attention being paid to Israel’s democracy
is well-placed, a key context must be emphasized:
namely, the Israeli-Palestinian confl ict.

Israel’s democratic decay cannot be discussed
without mentioning the Palestinian confl ict. The
Supreme Court is a critical pillar of Israeli democracy,
but it is not the only one. Why, then, have would-be
authoritarians and theocrats in the coalition taken
aim at it fi rst? Why not start with the parliamentary
opposition or some other organ of the state?
The obvious answer is that the court, in particular,
is widely viewed on the Israeli right as an impediment
to Jewish settlement in the West Bank and to an
expansive vision of Greater Israel.

The antagonism between the settlement
movement, on the one hand, and the court, on
the other, is not a new phenomenon. In 1979,
the court issued an important verdict barring the
establishment of settlements on private land in the
occupied territories.

The ruling infl amed opinion among proponents of
settlement in the West Bank and Gaza and divided
Menachem Begin’s right-wing government, with the
hawkish Ariel Sharon — then minister of agriculture
— calling sarcastically to lift “the burden of having to
make” such “political decisions” from the court and
suggesting more directly that the justices “should
not be dealing with settlements.”
This was one of the fi rst episodes in what would
prove to be an acrimonious relationship between
Israeli jurists and Jewish settlers. There was the
“judicial revolution” of the 1990s, in which the court
under Court President Aharon Barak developed an
Supreme Court of Israel in Jerusalem, Israel
approach more closely resembling judicial review
in the United States and other countries — namely,
the ability to strike down unconstitutional laws (or, in
Israel’s case, the legislation that violated the quasi-
constitutional Basic Laws).

As the court’s reach grew, so did the fears of
religious Zionists and settlers that it would stand in
the way of their goals.

When the court ordered the demolition of a
synagogue built illegally in the Givat Ze’ev settlement
in 2015, one opponent of the decision decried it,
saying “it’s inconceivable that a Jewish court will
destroy a synagogue.”
Of course, the Supreme Court does not always
default to the Palestinian position in a case, as
advocates for the Palestinian cause will readily
point out. But the mere fact that the court does not
automatically accept the Jewish or Israeli side over
Palestinian petitioners is enough to elicit indignant
rage from many who want to erase the Green Line.

Neutralizing the court through legislation that
would allow the Knesset to override its decisions
would not be damaging only for Palestinian rights; it
would limit the judiciary’s ability to protect individuals
in Israel across a wide range of axes, whether
religion, gender, ability or age. But the Palestinian
confl ict is the primary reason the court became a
target for the Israeli right in the fi rst place.

The battle between the Knesset and the court is
far from the lone arena in Israeli politics in which the
side eff ects of the confl ict can be felt today.

Talk of removing constraints on soldiers’ conduct
in the fi eld — and lifting punishments for those
who run afoul of them — is another. The defense of
rogue soldiers, whether Elor Azaria in 2016 or the
soldier who harassed activists in Hebron late last
November, also ties back to the confl ict, in addition
to having serious implications for the IDF’s chain of
command and its moral underpinnings.

The question is whether Israel’s interactions with the
Palestinians, either during military operations or along
the Green Line, will be governed by laws or by impulse.

The new government is not leaving much open
to interpretation here. Alongside its intentions for
the court, the coalition also entered offi ce following
announcements of bold plans for legalizing hitherto
unauthorized West Bank settlements. With the
Supreme Court’s future on the line, it is important to
shine a spotlight on the state of Israeli democracy,
but failing to mention the context of the Israeli-
Palestinian confl ict leaves our comprehension of the
stakes sadly incomplete. ■
Susie Gelman is board chair of Israel Policy Forum,
the U.S. organization founded in 1993 that supports a
viable two-state solution consistent with Israel’s security.

She is a member of the ownership group of
Mid-Atlantic Media, publisher of the Jewish Exponent.

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