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Israeli democracy may not survive a ‘reform’ of its Supreme Court
(JTA) — On 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 counterrevolution began.
In the Knesset Wednesday, 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 legislation 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 piecemeal 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 constituted 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 “judicial revolution.” The court has struck down 20 laws since, a fairly modest number 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 currently serves as one of the only checks on the extraordinary 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 advisors to act on their behalf, rather than that of the justice ministry, canceling these advisors’ role as safeguards against government overreach. Should a minister enact a decision that contravenes a basic law, the ministry’s legal advisor 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 obvious and 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 constitutional amendments no longer have any teeth. There are no guardrails preventing any Knesset majority from doing as it wishes, including violating basic human rights. The Knesset could pass laws openly curtailing freedom of the press or gender equality, for example, should it choose to do so.
This counterrevolution, in effect, goes further than merely undoing what occurred in the 1990s.
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 Wednesday could not be more germane. The Knesset recently amended the basic law to legalize 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 Thursday morning to hear petitions against his appointment from those arguing that it is “unreasonable” to rehabilitate Deri given his multiple criminal convictions, a view shared by Israel’s attorney general. 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 need to be mechanisms in place to protect the rights of minorities — political, ethnic and religious. 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 — government ministers and party leaders within the coalition 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.
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‘Heil’ Mary? New Atlanta Falcons logo inspires Nazi comparisons
If there was something off about the logo the Atlanta Falcons unveiled on social media Wednesday, whoever runs their accounts did, uh, not see it.
Behind the black falcon graphic that began appearing on the football team’s helmets in the 1960s was a new background — a flag of red, tan, black and white vertical stripes. To thousands of people who responded to the logo, it looked distinctly German — in a 1930s kind of way.
“The Atlanta Falcons are preparing to invade Poland,” one fan wrote.
A day after its posting, the new profile picture had unleashed a deluge of Nazi memes in the 4,000-plus replies on X. One picture swapped in the logo for Nazi flags in the background of a historical photo of a Hitler rally. Another edited the Falcon claw to look like a Nazi salute.
Others depicted Hitler in a Falcons cap, references to Inglourious Basterds and the Battle of the Bulge and a World War II joke invoking a blown lead in Super Bowl LI.
“Falcons were up 28-3 at Dunkirk,” that tweet read.
The Falcons’ snafu enters a small but growing catalogue of Reich-coded brand mixups. Who can forget the German national soccer team’s ‘44’ soccer jerseys? There was also the swastika-emblazoned Hallmark gift wrap; the accidental Hitler mugs; and (for my money) the worst of the bunch, Zara’s concentration camp uniform shirt.
All of those have been addressed; so far, the Falcons’ has not. We’ve reached out to them for comment.
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Netanyahu’s Torah exemption pledge highlights election stakes
Sometimes a statement can contain multitudes, or at least provide a crystallizing moment in an election campaign. So it was when Benjamin Netanyahu, while criticizing the detention of about 40 Haredi draft evaders by military police at Ben-Gurion Airport this week, declared in a radio interview: “We need to protect the world of the Torah … But whoever doesn’t study must serve in the military.”
Netanyahu was effectively saying that yeshiva study should continue to be, as it has been under an informal arrangement, a free pass out of military service – and he went on to repeat a pledge to turn this into law. It is a position opposed by the overwhelming majority of Israelis.
The statement came amid such a calamitous two-week stretch for Netanyahu’s campaign leading up to the Oct. 27 election that it has some people joking that agents of the opposition might have infiltrated Likud headquarters and taken charge.
In a tragicomic episode, one of Netanyahu’s chief propagandists called leading opposition candidate Gadi Eisenkot – a former military chief who is of Moroccan Jewish background – a “monkey” who is under the control of Ashkenazi elites.
Yinon Magal, who has described himself as a vessel for Netanyahu’s messaging, made the comments on Channel 14, the pro-Netanyahu propaganda TV channel where he is the leading host. He later filmed himself explaining that the simian reference, in Israel’s mafia parlance, merely refers to a junior criminal who is a puppet of more heavyweight mafiosi. His clarification did little to stem the tide of criticism.
As Netanyahu awkwardly tried to distance himself, he also charged that opposition figures had used racist slurs, referring to a recent podcast interview with businesswoman Galia Albin in which she said his supporters are Mizrahis who plan to vote for him mindlessly.
Then came leaked comments (made last year) by Haredi Rabbi Dov Lando, leading spiritual leader of the Netanyahu-allied United Torah Judaism party – proclaiming that Zionism had brought disasters upon the Jewish people, that life under Arab rule would have been preferable and that religious Zionist soldiers were being killed because their rabbis taught them “distorted Torah.” Once again, outrage boiled over, and received mostly silence from the Likud.
Donald Trump’s enthusiastic endorsement of Netanyahu might have qualified as good news – but the U.S. president seemed to connect a Bibi reelection to a renewed assault against Iran. That rests on the dubious assumption that Israelis are eager for another few weeks (or more) in bomb shelters.
A punctuation mark arrived a few days later with reports, albeit unverified, that Netanyahu actually had planned to attack Iran earlier this month but was blocked by Trump. Many expected that scenario, which would have been interpreted as a gambit to delay, by dint of national emergency, an election in which he’s badly trailing in credible polls.
Polling is not available on every such twist and turn of the campaign, but decades of studying Israel and a nose to the ground tell me none of this is popular. And there is no question that most Israelis want to end the draft evasion by Haredim. Recent polls put support for that at 85 percent, which essentially means all non-Haredim.
The issue, as I have said before, is easily the most effective axe for the opposition to grind – because the current situation with the Haredim is utterly untenable.
Tens of thousands of Haredi men of military age remain outside the draft system, while soldiers and reservists from other communities carry an increasingly intolerable burden that has ,in many cases, reached hundreds of days a year.
Whether all those registered as yeshiva students genuinely study – a central question for some people – should be beside the point. Why should Torah study confer a privilege unavailable to Israelis studying physics, medicine, engineering or law? Why should one form of education exempt citizens from defending the country while every other form does not?
The consequences of the Haredi parties’ extortion extend far beyond the army. Israel has created an incentive system in which prolonged religious study preserves military exemptions, public subsidies and a way of life often characterized by economic dependence. Many Haredi educational institutions reject the core curriculum essential for participation in a modern workforce, even as the state helps finance them.
This is an extraordinary arrangement for a country whose security depends on its economic strength, and whose economic strength depends on scientific education, technological innovation and a highly skilled workforce.
Demography makes the issue existential. Haredim already account for roughly one-sixth of Israel’s population, and their exceptionally high birth rates – almost seven children per family on average – mean their share will continue to skyrocket. Unless patterns of education, employment and military participation change dramatically, Israel faces the prospect of an ever-smaller proportion of its citizens supporting and defending an ever-larger population.
The danger is compounded by the mobility of the people on whom Israel’s prosperity depends. Engineers, scientists, entrepreneurs and physicians have opportunities elsewhere. If enough conclude that the country’s trajectory has become irreversible, the resulting brain drain could be catastrophic.
Earlier this year, my friend Rabbi Hershel Grossman arranged for me to meet senior rabbis associated with the Mir and Hebron yeshivot. They were gracious and pleasant, but strikingly candid about their opposition to compulsory core education, military service and ordinary employment whenever these conflicted with Torah study. More troubling was their confidence that demographic change would eventually give their community decisive political power.
The necessary alternative is a comprehensive overhaul of the incentives governing Haredi education, military service and employment. Every child should receive a core curriculum. Young adults should perform military or meaningful national service, with appropriate accommodations for religious observance. Public funding should encourage economic participation rather than prolonged dependence.
Opposition parties promise various versions of such plans. None of this will be easy, and it will not be accomplished by dialogue alone. But the alternative is a version of national suicide. There is no question that – alongside accountability for Oct. 7 and the demand for an independent state commission of inquiry – the future of Haredi military service, education and economic participation belongs at the center of this election.
So why would Netanyahu effectively say that studying Torah should entitle an able-bodied young man to exemption from military service?
There are several possible explanations for this – and the rest of the parade of seeming political misjudgments.
One might be a calculated strategy of mobilizing the base through fear and resentment rather than persuading the center. This might be useful in various scenarios involving a messy outcome of the election.
The others might be overpowering hubris, a toxic contempt for the public or the myriad other pathologies that often accompany too long a time in power.
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Tidbits: A publishing firm for Jewish writers excluded by mainstream publishers
Tidbits is a Forverts feature of easy news briefs in Yiddish that you can listen to or read, or both! If you read the article and don’t know a word, just click on it and the translation appears. Listen to the report here:
אין ניו־יאָרק איז די וואָך געגרינדט געוואָרן אַ פֿאַרלאַג פֿאַר ייִדישע און ישׂראלדיקע שרײַבער וואָס זאָרגן זיך, אַז זייער אָפּשטאַם אָדער מיינונגען קאָנען שטערן צום פּובליקירן זייערע ביכער.
לויט אַ סטאַטיסטיק פֿונעם מחבר מעג קין, איז בײַ די הויפּט־פֿאַרלאַגן, צווישן 2023 און 2024, געפֿאַלן מיט 76% די צאָל בעלעטריסטישע ביכער, וואָס דערמאָנען ייִדן, ייִדישקייט אָדער ישׂראל.
„הײַלײַן פּאָבלישינג סטודיאָ“, וואָס האָט דעביוטיִרט אין ענגלאַנד מיט אַ חודש צוריק, האָט געעפֿנט אַן אַמעריקאַנער צווײַג אין מאַנהעטן בײַ „פּאָרט סאַיִד“, דעם רעסטאָראַן פֿונעם וועלטבאַרימטן קוכער איל שני (עיאַל שאַני).
„הײַלײַן“ איז לאַנצירט געוואָרן דורך ניל בלער, דעם לאַנגיאָריקן ליטעראַרישן אַגענט פֿון דזשיי קיי ראָלינגס — דער שרײַבערין פֿון די האַרי־פּאָטער ביכער.
„איך האָב שוין פֿון לאַנג באַמערקט, אַז אַ צאָל שרײַבער קענען נישט געפֿינען קיין פֿאַרלאַג,“ האָט בלער געזאָגט. „נישט צוליב דער קוואַליטעט פֿון זייער שרײַבן אָדער אַ דוחק פֿון אָריגינעלע געדאַנקען, נאָר ווײַל זייער וועלטבאַנעם שטימט נישט מיטן קוקווינקל פֿון די פֿאַרלאַגן — אָדער אפֿשר ווײַל זייער משפּחה־נאָמען איז אַ ייִדישער אָדער ישׂראלדיקער.“
די פּראָבלעם, זאָגט ער, איז געוואָרן נאָך ערגער נאָך די טעראָריסטישע אַטאַקן פֿונעם זיבעטן אָקטאָבער, האָט בלער געזאָגט. ער האָט למשל דערמאָנט די שוועריקייטן בײַם געפֿינען אַ הויפּטשטראָמיקן בריטישן פֿאַרלאַג פֿאַר אַ בוך פֿון אלי שרבי (עלי שאַראַבי) וועגן זײַנע איבערלעבונגען ווי אַן ערובֿניק אין עזה — נישט געקוקט אויף דעם וואָס אין אַמעריקע האָט מען שוין געהאַט פֿאַרקויפֿט הונדערטער טויזנטער עקזעמפּלאַרן דערפֿון. צום סוף האָט זײַן בוך אַרויסגעגעבן אַ קליינער בריטישער פֿאַרלאַג, „סוויפֿט בוקס“.
„הײַלײַן“ וועט באַשטיין פֿון צוויי אימפּרעזומס: „אָדעסאַ עדישאָנס“ און „אַנטידאָט בוקס“. „אָדעסאַ עדישאָנס“, אָנגעפֿירט פֿונעם רעדאַקטאָר דזשעקי קלײַן, וועט דרוקן ייִדישע און ישׂראלדיקע בעלעטריסטיק און פֿאַקטפּראָזע אויף טעמעס פֿאַרבונדן מיט דער ייִדישער געשיכטע, אַנטיסעמיטיזם, פֿילאָסאָפֿיע, עסן און קולטור.
„אַנטידאָט בוקס“ וועט דרוקן פֿאַקטפּראָזע מיט אַ שייכות צו טעכנאָלאָגיע, עטיק, דעמאָקראַטיע, אידענטיטעט און מאַכט.
קלײַן האָט געזאָגט, אַז מע וועט אויך באַטראַכטן מאַנוסקריפּטן פֿון אַראַביש־ישׂראלדיקע און נישט־ייִדישע שרײַבער, וואָס זייער אַרבעט פֿאַרנעמט זיך מיט דער ייִדישער קולטור, געשיכטע אָדער געדאַנקען.
צו לייענען וועגן דעם אויף ענגליש גיט אַ קוועטש דאָ.
To read about this in English click here.
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