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A law professor worries Israel could become the next Hungary
(JTA) — Israel’s new governing coalition has been called the “most right-wing” in the nation’s history. That’s heartening to supporters who want the country to get tough on crime and secure Jewish rights to live in the West Bank, and dismaying to critics who see a government bent on denying rights to Israel’s minorities and undermining any hope for a peaceful solution to the Israeli-Palestinian conflict.
While the far-right politics of new government ministers Bezalel Smotrich and Itamar Ben Gvir have drawn much of the world’s attention, a series of proposed changes to Israel’s judicial system has also been raising hopes and alarms. On Wednesday, new Justice Minister Yariv Levin announced an overhaul that would limit the authority of the High Court of Justice, Israel’s Supreme Court. It would put more politicians on the selection committee that picks judges, restrict the High Court’s ability to strike down laws and government decisions and enact an “override clause” enabling the Knesset to rewrite court decisions with a simple majority.
Levin and his supporters on the right justify these changes as a way to restore balance to a system that he says puts too much control in the hands of (lately) left-leaning judges: “We go to the polls, vote, elect, and time after time, people we didn’t elect choose for us. Many sectors of the public look to the judicial system and do not find their voices heard,” he asserted. “That is not democracy.”
Critics of the changes call them a power grab, one that will hand more leverage to the haredi Orthodox parties, remove checks on the settlement movement and limit civil society groups’ ability to litigate on behalf of Israeli minorities.
To help me make sense of the claims on both sides, I turned to Tom Ginsburg of the University of Chicago, where he is the Leo Spitz Distinguished Service Professor of International Law and co-directs the Comparative Constitutions Project, which gathers and analyzes the constitutions of all independent nation-states. He’s also a Jew who has transformed a former synagogue on the South Side of Chicago into a cutting-edge arts space, and says what’s happening with Israel’s new governing coalition “raises my complicated relationship with the country.”
We spoke on Friday. Our conversation has been edited for length and clarity.
Jewish Telegraphic Agency: You have written about law in Israel, which lacks a constitution but relies on a series of “basic laws” to define its fundamental institutions. You’ve written that the Israeli judiciary had become “extremely powerful” — maybe too powerful — in imbuing the basic laws with a constitutional character, but worry that the current reforms will politicize the court in ways that will undermine Israeli democracy.
Tom Ginsburg: The proposed reforms were a campaign promise of certain elements of this coalition who have had longstanding grievances against the Israeli judiciary. The Israeli judiciary over the last decades has indeed become extremely powerful and important in writing or rewriting a constitution for Israel, promoting human rights and serving as a check and balance in a unicameral parliamentary system where the legislature can do anything it wants as a formal matter. A lot of people have had problems with that at the level of theory and practice. So there have been some reforms, and the court has, in my view, cut back on its activism in recent decades and in some sense has been more responsive to the center of the country. But there’s longstanding grievances from the political right, and that’s the context of these proposals.
A lot of the concerns about the new government in Israel are coming from the American Jewish left. But in an American context, the American Jewish left also has a big problem with the United States Supreme Court, because they see it as being too activist on the right. So in some ways isn’t the new Israeli government looking to do what American Jewish liberals dream of doing in this country?
Isn’t that funny? But the context is really different. The basic point is that judicial independence is a really good thing. Judicial accountability is a really good thing. And if you study high courts around the world, as I do, you see that there’s kind of a calibration, a balancing of institutional factors which lead towards more independence or more accountability and sometimes things switch around over time.
Israeli Justice Minister Yariv Levin holds a press conference at the Knesset, the Israeli parliament in Jerusalem, Jan. 4, 2023. (Olivier Fitoussi/Flash90)
You mean “accountability” in the sense that courts should be accountable to the public.
Right. The Israeli promoters of these plans are pointing to the United States, in particular, for the proposals for more political involvement in the appointment process. On the other hand, in the United States once you’re appointed politically, you’re serving for life. There’s literally no check on your power. And so maybe some people think we have too much independence. If these proposals go through in Israel, there will be a front-end politicization of the court [in terms of the selection commission], but also back-end checks on the court [with the override clause that would allow a simple majority to reinstate laws struck down by the Supreme Court]. So in some sense, it moves the pendulum very far away from independence and very much towards accountability to the point of possible politicization.
And accountability in that case is too much of a good thing.
Again, you don’t want courts that can just make up rules. They should be responsive to society. On the other hand, you don’t want judges who are so responsive to society that there’s no protection for the basic rights of unpopular minorities.
What makes Israel either unique or different from some of the other countries you study, and certainly the United States? Part of it, I would guess, is the fact that it does not have a constitution. Is that a useful distinction?
They couldn’t agree on a single written constitution at the outset of the country, but they have built one through what you might call a “common law method”: norms and practices over time as well as the system of “basic laws,” which are passed by an absolute majority of the Knesset, where a majority of 61 votes can change any of those. But while they’re not formally entrenched, they have a kind of political status because of that term: basic law.
By the way, the Germans are in the same boat. The German constitution is called the Basic Law. And it was always meant to be a provisional constitution until they got together and reunified.
If you don’t have a written constitution, what’s the source of the legitimacy of judicial power? What is to prevent a Knesset from just passing literally any law, including ones that violate all kinds of rights, or installing a dictator? It has been political norms. And because Israel has relied on political norms, that means that this current conflict is going to have extremely high stakes for Israeli governance for many decades to come.
Can you give me a couple of examples? What are the high stakes in terms of democratic governance?
First of all, let me just say in principle that I don’t oppose reforms to make the judiciary more independent or accountable in any particular country. But then you obviously have to look at the local context. What’s a little worrying about this particular example is that several members of this coalition are themselves about to be subject to judicial proceedings.
Including the prime minister, Benjamin Netanyahu.
Right. And for example, they need to change the rules so that [Shas Party chairman] Aryeh Deri can sit in the cabinet despite his prior convictions. That indicates to me that maybe this isn’t a good-faith argument about the proper structure of the Israeli, uncodified constitution, but instead a mechanism of expediency.
Any one of these reforms might look okay, and you can find other countries that have done them. The combination, however, renders the judiciary extremely weak. Right now, it’s a multi-stakeholder commission that nominates and appoints judges in Israel, and the new coalition wants to propose that the commission be made up of a majority of politicians. We know that when you change the appointments mechanism to put more politicians on those committees, the more politicized they become.
Think about the United States process of appointing our Supreme Court judges: It’s highly politicized, and obviously the legitimacy of the court has taken a big hit in recent years. In Israel, you’d have politicized appointments under these reforms, but then you also have the ability of the Knesset to override any particular ruling that it wanted. Again, you can find countries which have that. It’s called the “new commonwealth model” of constitutionalism, in which courts don’t have the final say on constitutional matters, and the legislature can overrule them on particular rulings. But I think the combination is very dangerous because you could have a situation where the Knesset — which currently has a role in protecting human rights — can pick out and override specific cases, which really to me goes against the idea of the rule of law.
You mentioned other countries. Are there other countries where these kinds of changes were enacted and we saw how the experiment turned out?
The two most prominent recently are Hungary and Poland, which are not necessarily countries that you want to compare yourself to.
Certainly not if you are Israel.
Right. There’s so much irony here. When the new Polish government came in in 2015, they immediately manipulated the appointment system for the Constitutional Court and appointed their own majority, which then allowed them to pass legislation which probably would have been ruled unconstitutional. They basically set up a system where they were going to replace lower judges and so they were going to grow themselves into a majority of the court. And that’s led to controversy and rulings outside the mainstream that have led to protests, while the European Union is withholding funds and such from Poland because of this manipulation of the court.
In Hungary, Victor Orban was a really radical leader, and when he had a bare majority to change the constitution he wiped out all the previous jurisprudence of the Constitutional Court. I don’t think the Israeli government would do that. But still there is this kind of worrying sense that they’re able to manipulate interpretation of law for their own particular political interest.
Another thing I want to raise is the potential for a constitutional crisis now. Suppose they pass these laws and the Israeli Supreme Court says, “Well, wait a minute, that interferes with our common law rules that we are bound by, going back to the British Mandate.” It conflicts with the basic law and they invoke what legal scholars call the “doctrine of unconstitutional constitutional amendments,” which is basically saying that an amendment goes against the core of our democratic system and violates, for example, Israel’s character as a Jewish and democratic society. Israel has never done this, but it is a kind of tool that one sees deployed around the world in these crises. And if that happened, then I think you would have a full constitutional crisis on your hands in Israel.
Supreme Court President Aharon Barak speaks with Prime Minister Benjamin Netanyahu during a ceremony in the Supreme Court marking 50 years of law, Sept. 15, 1998. (Avi Ohayon)
What does a constitutional crisis look like?
Suppose you have sitting justices in Israel who say, “You know, this Knesset law violates the basic law and therefore it’s invalid.” And then, would the Knesset try to impeach those judges? Would they cut the budget of the judiciary? Would they back down?
When you compare Israel’s judicial system to other countries’ over the years, how does it stack up? Is it up there among the very strong systems or is it known for flaws that might have maybe hobbled its effectiveness?
It’s always been seen around the world as a very strong judiciary. Under the leadership of Aharon Barak [president of Israel’s Supreme Court from 1995 to 2006] it became extremely activist. And this provoked backlash in Israeli politics. That led to a kind of recalibration of the court where it is still doing its traditional role of defending fundamental rights and ensuring the integrity of the political process, but it’s not making up norms left and right, in the way that it used to. This is my perception. But it’s certainly seen as one of the leading courts around the world, its decisions are cited by others, and because of the quality of the judges and the complex issues that Israel faces it’s seen as a strong court and an effective court and to me a balanced court.
But, you know, I’m not in Israel, and ultimately, they’re going to figure out the question how balanced it is or where it’s going to go. I do worry that an unchecked majoritarian system, especially with a pure proportional representation model like Israel, has the potential for the capture of government by some minorities to wield power against other minorities. And that’s a problem for democracies — to some degree, that’s a problem we face in the United States.
How correctable are these reforms? I am thinking of someone who says, “These are democratically elected representatives who now want to change a system. If you want to change the system, elect your own majority.” Is the ship of state like this really hard to turn around once you go in a certain direction?
This is an area in which I think Israel and the United States have a lot of similarities. For several decades now, the judiciary has been a major issue for those on the political right. They thought the Warren Court was too left-leaning and they started the Federalist Society to create a whole cadre of people to staff the courts. They’ve done that and now the federal courts are certainly much more conservative than the country probably. But the left didn’t really have a theory of judicial power in the United States. And I think that’s kind of true in Israel: It’s a big issue for the political right, but the political left, besides just being not very cohesive at the moment, isn’t able to articulate what’s good about having an independent judiciary. It is correctable in theory, but that would require the rule of law to become a politically salient issue, which it generally isn’t in that many countries.
How do you relate to what is happening in Israel as a Jew, and not just a legal scholar?
That’s a great question, because it really raises my complicated relationship with the country. You know, I find it to be a very interesting democracy. I like going to Israel because it’s a society in which there’s a lot of argument, a lot of good court cases and a lot of good legal scholars. On one level, I connect with my colleagues and friends there who seem very demoralized about this current moment. And I honestly worry about whether this society will remain a Jewish and democratic one with the current coalition.
The rule of law is a part of democracy. You need the rule of law in order to have democracy function. And I know others would respond and say, “Oh, you’re just being hysterical.” And, “This isn’t Sweden, it’s the Middle East.” But the ethno-nationalist direction of the country bothers me as a Jew, and I hope that the court remains there to prevent it from deepening further.
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Benjamin Disraeli once saved Britain’s monarchy — the current one may be beyond repair
Not a bad send-off for a commoner whose family’s religion still prevented them from holding political office or attending Oxford or Cambridge up until the second half of the century.
This was the reason why the young Disraeli was baptized in the Church of England. His father, a prominent literary scribbler, thought this would ease his son’s way in society. Little did he know how far and fast this would happen.
Starting in his early twenties, Disraeli began to write wildly romantic (and self-promoting) novels, several of which star a brilliant and, predictably, mysterious hero named Sidonia, who prides himself, as did his (possibly mistakenly) creator, on his Sephardic ancestry. Disraeli uses Sidonia to turn the era’s racial prejudices inside out, having him wax on the brilliance of his race’s civilization while the ancestors of the British aristocracy were still mucking about as “Baltic pirates” and “tattooed savages.”
Similarly, when the Irish politician Daniel O’Connell made an antisemitic slur against the twenty-something Disraeli, the latter — in a fashion worthy of Sidonia — declared “Yes, I am a Jew. And when the ancestors of the right honorable gentlemen were brutal savages in an unknown island, mine were priests in the temple of Solomon.” He then challenged O’Connell to a duel, which was happily quashed by the police.
With the same alchemical genius that transmuted the alleged dross of Jewishness into the gold of racial superiority, Disraeli launched his political career, making his way to become leader, rather remarkably, of the Tory conservatives rather than the liberal Whigs. He persuaded his party’s mostly well-born and dull-witted members to embrace both political reform — the Torys pushed through the Second Reform Bill of 1867, which dramatically extended voting rights — and progressive social and economic reforms during his second term as prime minister.
But Disraeli’s most remarkable achievement was not a matter of political or social reform but of monarchical reinvention. It was, quite literally, spectacular and starred the woman now known as the “widow of Windsor.” Following the premature death of her beloved Prince Albert, the stricken Victoria withdrew from public life and turned inward. Grieving and always garbed in black, she ignored her ceremonial duties, often seeking refuge in distant Scotland at her Balmoral estate.
In an echo of the British Crown’s current crisis, republican voices in Parliament began to question the immense sums spent on the monarchy while those on the street began to ridicule the queen. On a sign pinned to the gate at Buckingham Palace, one wag had written: “These premises to be let or sold, the late occupant having retired from business.” For the British public, it felt increasingly as if they were paying a lifelong subscription to a show that had permanently closed.
As a result, when Disraeli reached “the top of the greasy pole” upon becoming prime minister in 1868, his overriding concern was to cultivate his ties with the sovereign. As he confided to the poet Mathew Arnold, “everyone likes flattery; and when you come to royalty you should lay it on with a trowel.”
The newly arrived prime minister was as good as his word. As he wrote in his first message to the queen, “Mr. Disraeli with his humble duty to Your Majesty. He ventures to express his sense of Your Majesty’s most gracious kindness to him and of the high honour which Your Majesty has been graciously pleased to confer on him. He can offer only devotion.”
Swept off her feet by such declarations of devotion, Victoria described her new prime minister as “her kind, good, considerate friend.” She allowed her friend unprecedented privileges, such as front row seats for him and his wife for the wedding of the Prince of Wales, and even more shockingly, the permission to sit during their frequent private audiences, though he insisted on standing.
Disraeli continued to lay it on thick over the course of their relationship. “If your Majesty is ill,” he wrote in the third person during a political crisis, “he is sure he will himself break down. All, really, depends upon your Majesty.”
“He lives for Her,” he continued, “works only for Her, and without Her all is lost.”
Okay, even “thick” fails to describe Disraeli’s flattery. But here is the vital point: his conversations and correspondence with Victoria, while over-the-top, were also sincere. He was impressed by her character and her capacity to represent the nation. The future of Great Britain, he believed, depended on a vibrant and visible monarchy, one in which Victoria would of course play the starring role.
Deeply moved by Disraeli’s attention, the queen was drawn out of her shell of mourning. “After the long gloom of her bereavement,” Lytton Strachey wrote in his biography of Victoria, “she expanded to the rays of Disraeli’s devotion like a flower in the sun.” Gradually, this expansion was not just private and emotional, but also political and ceremonial.
In fact, Disraeli did not distinguish between the two. The imperial and spectacle were one and the same. In 1876, this conviction led him, with the Queen’s delighted complicity, to push a bill through Parliament that bestowed upon Victoria the title of Empress of India. Rather than pause her ceremonial ambitions in the years following Disraeli’s death, Victoria doubled down on her mentor’s playbook. She orchestrated her Golden Jubilee in 1887 and then years later, her Diamond Jubilee.
With these earlier spectacles in mind, Victoria’s great-great-granddaughter continued the tradition, with stunning success, not just with the first two jubilees, but adding, shortly before her death, the Platinum Jubilee in 2022. And yet, that triumph was soon followed by Elizabeth’s death and the diminishment if not death of the monarchy, in part thanks to Andrew’s abhorrent antics.
“A man’s fate,” Disraeli once remarked, “is his own temper.” But now, the fate of the very monarchy Disraeli helped build hangs in the balance — a turn of events that perhaps even he could not solve.
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Israeli bobsled squad is disqualified from Olympics after trying to swap in Druze teammate
(JTA) — The Israeli bobsled team’s historic journey to the 2026 Winter Olympics ended in anything but storybook fashion on Sunday, as Israel’s own Olympic committee withdrew it from competition after learning that the team had lied about a member’s health.
The withdrawal meant that Israel did not compete in the four-man race on Sunday, the final day of competition in Milan and Cortina.
After finishing the first two heats of the four-man bobsled race as the slowest team, Israel planned to swap out Uri Zisman for team alternate Ward Farwasy, who would have become Israel’s first-ever Druze Olympian had he taken the ice.
But bobsled substitutions are only permitted in the event of an athlete’s injury or illness, so Zisman had agreed to lie and tell officials he was sick. He had reportedly obtained a medical certification for the false story.
In a statement, Israel’s Olympic committee said it had learned of the team’s plan to substitute in Farwasy “in an improper manner that does not meet the standards expected of Olympic athletes and is not in line with Olympic values,” and chose to withdraw the team from the race.
“The Olympic Committee of Israel views any deviation from the Olympic values as unacceptable and cannot accept inappropriate behavior,” the statement said. “It should be emphasized that, up to this point, the participation of the bobsleigh delegation has taken place in the spirit of sport and without any violations by the athletes.”
David Greaves, the president of the Israeli Bobsleigh and Skeleton Federation, told the Times of Israel that he was “deeply disappointed in the actions of the team.”
AJ Edelman, the team’s captain and main driver of its existence, took responsibility for the scheme.
“I apologize profusely for the disappointment,” Edelman posted on X. “But I will always remain proud that the team looked at their Druze brother, who had earned his place on the team, and unanimously said ‘we want this for you.’ I signed off on it and I take responsibility.”
Later, fending off criticism that he had compromised the very Olympic program he had sought to build up, Edelman appeared to blame Zisman’s mother for calling foul on the switch and said he did not regret it.
“I make no apologies for the decision. At all. The switch is not only common in our sport, we did it believing it was good for the country and to honor our teammate. We thought we were putting country first,” he wrote. “The end effect was not intended but I am proud of the team’s consensus in that moment. It was only an issue because the mother of the athlete replaced was upset it was her child, not another athlete. The decision itself was not in question and I remain okay with it.”
The disqualification ignited criticism of the team from both pro-Israel sports fans and those who had protested Israel’s inclusion in the Olympics in the first place. Edelman and Menachem Chen’s last-place finish in the two-man bobsled event last week was overshadowed by a Swiss broadcaster’s criticism of Israel and Edelman during the race. The broadcaster later removed the clip from its website.
On Saturday, Italy’s public broadcaster apologized for a commentator’s off-camera remark calling to “avoid” the Israeli team. The network’s director issued an apology for what he said was an “unacceptable expression that in no way represents the values of public service broadcasting or of RAI Sport.”
The controversies came after the bobsled team’s apartment was broken into while it trained in the Czech Republic. Israel was competing in Olympic bobsled for the first time, in what Edelman and some fans dubbed “Shul Runnings,” a reference to the Jamaican bobsled team’s similarly improbable run in 1988.
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Leaked DNC autopsy found Biden’s Israel backing cost Harris votes for president
Senior Democrats who reviewed the party’s 2024 presidential election autopsy concluded that the Biden administration’s handling of the Israel-Hamas war was a “net negative” for Democrats and cost Vice President Kamala Harris critical support among younger and progressive voters, according to a new report published Sunday. The Democratic National Committee has so far withheld the findings from public release.
Activists affiliated with the Institute for Middle East Understanding Policy Project, a progressive research group, told Axios that in post-election discussions with DNC representatives, party officials acknowledged that the Biden administration’s support for Israel during the war in Gaza was a factor in former Vice President Kamala Harris’ loss to Donald Trump.
The war loomed large in the campaign before Biden withdrew from the race. Anxious Democrats reportedly pressured former President Biden to “take a tougher stance on Israel” as one way to recover from his catastrophic debate performance in June 2024. Some advisers floated the idea of conditioning or halting certain arms transfers to shift the campaign’s direction and appeal to disaffected progressives and voters in Michigan — a swing state with a substantial Arab American community — who had cast “uncommitted” protest ballots in the primary.
Harris, who was more forceful in her call for an immediate ceasefire to address the dire humanitarian situation in Gaza, lost Michigan and Pennsylvania by almost 2 points.
“We should have done more as an administration,” Harris said in November. “We should have spoken publicly about our criticism” of how Israeli Prime Minister Benjamin Netanyahu and his government “were executing this war.”
The DNC claimed it has shared the internal findings with party leaders and candidates. Progressive activists are pushing for them to be made public ahead of the midterm elections.
Kamala Harris’ conclusions
In her book about the election, titled 107 Days, Harris addressed what she described as the political fallout from Biden’s statements and her own stance on the war, writing that it hurt Democrats with key constituencies.
“The issue was not binary, but the outcome of this election certainly was,” Harris wrote, adding that she wished that those who protested her understood that “sitting out the election or voting for a third candidate would elect Trump and kill any effort for a just peace, any hope for a two-state solution.”
In her own defense, Harris wrote that she “wanted to acknowledge the complexity, nuance and history of the region, but it seemed very few people had the appetite for that or the willingness to hold two tragic narratives in their mind at the same time, to grieve for human suffering both Israeli and Palestinian.”
In her rushed vetting of running mates, Harris pushed Pennsylvania Gov. Josh Shapiro to apologize for criticizing pro-Palestinian campus protests, which he refused to do, according to his recent memoir.
Harris wrote that she discussed with Shapiro how his selection might affect the campaign, including the risk of protests tied to Gaza at the Democratic National Convention and “what effect it might have on the enthusiasm we were trying to build.” She wrote that Shapiro responded by saying he had clarified that earlier views he held were misguided and that he was firmly committed to a two-state solution. Harris ultimately selected Minnesota Gov. Tim Walz as her running mate, but protests over Gaza still roiled the Democratic convention. Uncommitted delegates staged a sit-in outside the venue after the DNC declined to allow a Palestinian American to address the main stage.
The path forward
Palestinian rights have increasingly become a litmus test for Democrats.
Recent national polls show Democratic voters have as a group become more sympathetic to Palestinians. The IMEU Policy Project conducted a poll after the Democratic primary for New York City Mayor last year, which showed that Zohran Mamdani’s sharp criticism of Israel attracted new voters and energized parts of the Democratic electorate that contributed to his victory. The post-primary survey showed that 78% agreed with his belief that Israel was committing genocide in Gaza, and 79% support restricting weapons to Israel.
Last August, the Democratic National Committee withdrew a resolution reaffirming the party’s support for Israel and a two-state solution to avoid a clash with younger and progressive activists who were pressing sharper opposition to Israel.
In July, a record 27 Senate Democrats, a majority of the caucus, supported a pair of resolutions calling for the blocking of weapons transfers to Israel.
Even national Jewish Democrats, like Illinois Gov. JB Pritzker and former Chicago mayor Rahm Emanuel — both considered possible presidential candidates in 2028 — have publicly challenged Israeli policy. Shapiro has repeatedly been critical of Netanyahu and, last year, criticized the Israeli government’s rejection of international reports on hunger in Gaza, calling it “abhorrent” and “wrong.”
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