opinion
Israeli Democracy May Not Survive
a ‘Reform’ of its Supreme Court
O Alex Lederman
n Dec. 29, Israel swore in Benjamin Netanyahu’s
sixth government. The Likud leader became
Israel’s prime minister once more, and one
week later, Israel’s long-anticipated judicial counterrev-
olution began.

In the Knesset on Dec, 4, newly minted Justice
Minister and Netanyahu confidant Yariv Levin unveiled
a package of proposed legislation that would alter the
balance of power between Israel’s legislature and its
Supreme Court.

At the core of this plan is a bill to allow the Knesset
to override the Supreme Court. Levin’s proposals —
which almost certainly have the immediate support of a
Knesset majority, regardless of Levin’s assurances that
they would be subject to “thorough debate” — would
pave the way for Israel’s new government to pass legis-
lation that curtails rights and undermines the rule of law,
dealing a blow to Israeli democracy.

The dire implications of this proposed judicial reform
are rooted in key characteristics of the Israeli political
system that set it apart from other liberal democracies.

Israel has no constitution to determine the balance of
power between its various branches of government. In
fact, there is no separation between Israel’s executive
and legislative branches, given that the government
automatically controls a majority in the parliament.

Instead, it has a series of basic laws enacted piece-
meal over the course of the state’s history that have a
quasi-constitutional status, with the initial intention that
they would eventually constitute a de jure constitution.

Through the 1980s, the Knesset passed basic laws
that primarily served to define state institutions, such as
the country’s legislature and electoral system, capital
and military. In the 1990s, there was a paradigm shift
with the passage of two basic laws that for the first time
concerned individuals’ rights rather than institutions, one
on Human Dignity and Liberty (1992) and the other on
Freedom of Occupation (1994). These laws enshrined
rights to freedom of movement, personal freedom,
human dignity and others to all who reside in Israel.

Aharon Barak, the president of Israel’s Supreme
Court from 1995 to 2006, argued that these laws consti-
tuted a de facto bill of rights, empowering the court
to review Knesset legislation and to strike down laws
that violate civil liberties, a responsibility not explicitly
bestowed upon the court in the basic law pertaining
to the judiciary. In 1995, the Supreme Court officially
ruled that it could indeed repeal legislation that violates
the country’s basic laws, heralding an era of increased
judicial activism in Israel in what became known as the
12 JANUARY 19, 2023 | JEWISH EXPONENT
“judicial revolution.” The court has struck down 20 laws
since, a modest total compared to other democracies.

The judicial revolution of the 1990s shifted the
balance of power in Israel’s political system from one
of parliamentary sovereignty, in which the Knesset
enjoyed ultimate power, to one in which the legislature
is restricted from violating the country’s (incomplete)
constitution. Israel’s Supreme Court became a check
on the legislative branch in a country that lacks other
checks and balances and separations of power.

As a result of these characteristics, the Supreme
Court serves as one of the only checks on the extraor-
dinary power of Israel’s 120-member Knesset — which
is why shifting that balance of power would have such a
dramatic impact on Israel’s democracy.

Levin’s proposed judicial overhaul includes several
elements that would weaken the power and independence
of Israel’s Supreme Court. The plan includes forbidding the
Supreme Court from deliberating on and striking down
basic laws themselves. It would require an unspecified
“special majority” of the court to strike down legislation,
raising the threshold from where it currently stands.

Levin has also called for altering the composition of
the selection committee that appoints top judges to
give the government, rather than legal professionals, a
majority on the panel. It would allow cabinet ministers to
appoint legal advisers to act on their behalf, rather than
that of the justice ministry, canceling these advisers’ role
as safeguards against government overreach. Should
a minister enact a decision that contravenes a basic
law, the ministry’s legal adviser would no longer report
the violation to the attorney general, and would instead
merely offer non-binding legal advice to the minister.

The pièce de résistance is, of course, the override
clause that would allow the Knesset to reinstate laws
struck down by the Supreme Court by 61 members of
Knesset, a simple majority assuming all members are
present. The sole restriction on this override would be
a provision preventing the Knesset from re-legislating
laws struck down unanimously, by all 15 judges, within
the same Knesset term.

This plan’s most immediate result would be the
effective annulment of the quasi-constitutional status of
Israel’s basic laws. If the Knesset’s power to legislate is
no longer bound by basic laws, these de facto consti-
tutional amendments no longer have any teeth. There
are no guardrails preventing any Knesset majority from
doing as it wishes.

Most crucially, the Knesset that would once again
enjoy full parliamentary sovereignty in 2022 is not
the Knesset of Israel’s first four decades. Shackling
the Supreme Court is essential to the agendas of the
new government’s various ultra-right and ultra-religious
parties. For example, the haredi Orthodox parties are
eager to re-legislate a blanket exemption to the military
draft for their community, which the court struck down
in 2017 on the grounds that it was discriminatory.

They also have their sights on revoking recognition
of non-Orthodox conversions for immigrants to Israel,
undoing a court decision from 2021.

The far-right, Jewish supremacist parties of Bezalel
Smotrich and Itamar Ben-Gvir, meanwhile, see an
opportunity to deal a decisive blow to an institution
that has long served as a check on the settlement
movement. They hope to tie the court’s hands in the
face of oncoming legislation to retroactively legalize
settlements built on private Palestinian land, which are
illegal under Israeli law. But this is only the beginning:
Neutering the authority of the court could pave the way
for legal discrimination against Israel’s Arab minority,
such as Ben-Gvir’s proposal to deport minorities who
show insufficient loyalty.

The timing of Levin’s announcement could not be more
germane. The Knesset recently amended the law to legal-
ize the appointment of Aryeh Deri, the Shas party leader
who is serving a suspended sentence for tax fraud, as
a minister in the new government. The Supreme Court
convened the next morning to hear petitions against his
appointment from those arguing that it is “unreasonable”
to rehabilitate Deri given his multiple criminal convictions.

Levin’s proposals would bar the court from using this
“reasonability” standard.

The Israeli right has long chafed at the power of the
Supreme Court, which it accuses of having a left-wing
bias. But a judicial overhaul like this has never enjoyed
the full support of the government, nor was Netanyahu
previously in favor of it. Now, with a uniformly right-wing
government and Netanyahu on trial for corruption, the
prime minister’s foremost interest is appeasing his
political partners and securing their support for future
legislation to shield him from prosecution.

In a system where the majority rules, there needs to
be mechanisms in place to protect the rights of minori-
ties. Liberal democracy requires respect for the rule of
law and human rights. Yariv Levin’s proposals to fully
subordinate the Supreme Court to the Knesset will
concentrate virtually unchecked power in the hands
of a few individuals who effectively control what the
Knesset does. That those individuals were elected in
free and fair elections is no guarantee that the changes
they make will be democratic. ■
Alex Lederman is a policy and communications
associate at Israel Policy Forum.