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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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A gunman attacked a Michigan synagogue. Here’s what happens to the community next
On Thursday, a driver rammed his pickup truck into Temple Israel in West Bloomfield Hills, Mich., a large Reform Temple about 25 miles from downtown Detroit. Blessedly, there were no casualties besides the shooter, whom security guards rapidly engaged. One guard was injured. Aside from that, everyone who was inside the synagogue, including 140 children attending school there, was unscathed.
“There’s hopeful news and there’s sad news about the aftermaths of these shootings,” said Mark Oppenheimer, author of Squirrel Hill: The Tree of Life Synagogue Shooting and the Soul of a Neighborhood, a methodical, lyrical look at what happened to the Pittsburgh neighborhood shattered by the Oct. 27, 2018 shooting that left 11 people dead.
The hopeful news is that older, established Jewish communities can rely on close, long-established bonds within and outside the community to get them through.
The sad news is that people unaffected by the shooting tend to move on and forget.
“So whereas this will haunt the Jewish community for years,” Oppenheimer told me in a phone interview, “most people outside the Jewish community will quickly move on to whatever the next horrible incident is.”
What happens next
Authorities have not confirmed the attacker’s motive, although he has been identified as a Michigan man who was born in Lebanon. But among all the unknowns, we do know a few things for certain.
We know that a great tragedy was averted due to the guards’ bravery and expertise, and due to the planning and preparation of synagogue leadership.
We know such attacks have gone from being extremely rare in the United States, to being more frequent.
And we know that what happens now, in the aftermath, matters a great deal.
That’s why, in writing about the worst mass shooting in American Jewish history, Oppenheimer spent most of his time researching what came after the atrocity.
“When the cameras and the police tape were gone, what stayed behind?”Oppenheimer, who teaches at Washington University’s John C. Danforth Center on Religion and Politics, wrote in the book’s introduction.
The power of connection
Both the Tree of Life synagogue and Temple Israel are older, deeply entrenched congregations with close ties to a number of local communities — Jewish and non-Jewish alike.
In one chapter of Squirrel Hill titled, simply, “Gentiles,” Oppenheimer chronicles how non-Jews came to the aid of the stricken congregation, including clergy, politicians and neighbors.
Emblematic of that was the capacity crowd of 2,500 people that came together at Soldiers and Sailors auditorium on the one-year anniversary of the shooting, where law enforcement, politicians and Christian, Muslim and Jewish clergy all spoke.
“There are usually people in government, in community organizations, in neighborhood organizations, who reach out, who want the Jews to know that they’re not alone,” said Oppenheimer.
Evidence of such connection was already on show in Michigan on Thursday. One reporter interviewed a woman praying outside the synagogue, who said, through tears, that the “Holy Spirit” had told her to turn her car around once she saw police cars racing past her to the scene, and go lend support.
In Pittsburgh, the 2018 shooting was also a time for the Jewish community itself to come together.
Squirrel Hill’s close-knit Jewish community crossed denominational divides to show support. An Orthodox rabbi organized a spreadsheet to manage the 24-hour vigils Jewish law prescribes over the bodies of the dead prior to burial.
“In Squirrel Hill, one of the nice things is there is a lot of community and solidarity across denominational lines and levels of observance,” said Oppenheimer, “and that’s pretty rare in American Judaism. It’ll be interesting to see how that plays out in Detroit.”
A new reality
Iin recent years, the need for solidarity and resilience in the face of such attacks has become, unfortunately, more apparent.
When Oppenheimer wrote his book, he was able to state the shooting was “a unique event” in American history. It’s true that until the Tree of Life massacre, antisemitic violence had claimed just 26 lives in U.S. history. The U.S., more than any Western country, and far more than Israel itself, had truly been a safe haven for Jews.
Since Squirrel Hill, six more people have died in four attacks. The previously well-earned sense of safety has been shattered.
“While the odds that any given Jew will be attacked remain quite low, it is obviously pretty terrifying,” said Oppenheimer.
Some critics of the national focus that fell on Squirrel Hill after the Tree of Life shooting argued that the tragedy got far more attention than similar mass shootings that had befallen non-Jewish communities.
But it’s the very rarity of these attacks that makes them so shocking and, at least for American Jews, so memorable.
In this new normal, it’s even more important for Jews to form strong, mutually supportive bonds among themselves, and with others.
And the world moves on
Those bonds are especially crucial because while the victims of violence don’t soon forget and move on, the world does.
“It’s a short burst of solidarity, and then people leave. Understandably so,” Oppenheimer said.
I suspect that even though prayers of gratitude and deliverance will echo through the sanctuaries of Detroit — and in Jewish hearts everywhere — the attack will haunt its intended victims long after the police tape comes down.
What will make the difference in how the community faces those fears and moves forward is the amount of support it receives from those outside it. If the broader Bloomfield and Detroit community refuses to forget this awful incident, it will change the course of healing.
I asked Oppenheimer what lesson he learned from the Tree of Life aftermath could apply to Temple Israel.
“In Pittsburgh, there was a long history of people showing up for each other,” he said Oppenheimer. “The relationships, or lack of relationships, that exist become more noticeable when something goes wrong.”
“Where there are strong ties before a shooting, there are strong ties afterwards.”
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Political standoff causing DHS shutdown delays security grants for synagogues
(JTA) — A shutdown at the Department of Homeland Security since Feb. 14 is halting the review of millions of dollars in security funding for nonprofits, leaving Jewish institutions and other vulnerable groups in limbo at a moment of heightened concern about antisemitic threats.
The most recent threat came Thursday when an armed assailant rammed his vehicle into a large synagogue in suburban Detroit, where trained security forces shot at him and he was killed before he could injure anyone.
The closure stems from a political standoff over immigration enforcement: Senate Democrats are refusing to fund DHS unless the bill includes new oversight and limits on ICE operations, while Republicans and the Trump administration insist on passing funding without those changes. The dispute intensified after the killings of U.S. citizens during recent immigration operations.
Applications for the federal Nonprofit Security Grant Program, which helps synagogues, schools and community centers pay for security guards, cameras, reinforced doors and other protections were due Feb. 1 But because the program is administered through the Federal Emergency Management Agency, a component of DHS, the ongoing shutdown has frozen the process before applications could be reviewed. An effort to end the shutdown failed in the Senate on Thursday.
That means organizations that spent months preparing proposals are now waiting indefinitely to learn whether they will receive funding, at a time of rising anxiety and threats.
The grant program has become a cornerstone of security planning for Jewish institutions across the United States, especially in the wake of sometimes deadly attacks. Demand for the grants has surged in recent years as antisemitic incidents have climbed and security costs have soared.
According to data from the Anti-Defamation League, antisemitic incidents in the United States have reached historic highs in recent years, with Jewish institutions frequently targeted with threats, vandalism and harassment. Community leaders say the uncertainty surrounding the grants is arriving at precisely the wrong moment.
The NSGP is designed to distribute hundreds of millions of dollars annually to nonprofits considered at high risk of attack. Organizations submit detailed applications outlining their vulnerabilities and the security improvements they hope to fund, which FEMA then reviews and awards through state agencies.
But during a federal shutdown, most DHS personnel responsible for reviewing those applications are furloughed. As a result, the process has effectively stalled.
For many nonprofits, the delay creates practical and financial uncertainty. Security upgrades such as surveillance systems, bollards, access-control systems and trained guards often depend on the grants, and institutions typically plan their budgets around the expectation of federal support.
Jewish communal security groups say the program has been one of the most successful federal efforts to help protect religious institutions. Michael Masters, CEO of the Secure Community Network, a Jewish security nonprofit, said Jewish organizations rely on federal funding to cover essential security needs, saying that it was “a challenge” that DHS was currently not processing security grant applications.
“There’s no other faith-based community in the United States that needs to spend $760 million a year, at a minimum, on security that we do,” Masters said. “That’s a reality of the threat environment that we have to adapt to, that we have adapted to.”
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A gunman rammed a Michigan synagogue. Its security preparations may have saved lives.
(JTA) — The suspected assailant, armed with rifles and smoke bombs, who rammed into Temple Israel on Thursday encountered a synagogue that was well prepared for just such an attack.
He hit and injured the congregation’s security director with his car as he plowed through the synagogue’s doors and drove down a hallway. But he didn’t manage to harm anyone else as he was found dead after trained and armed security guards shot at him
And because the rest of the staff knew exactly how to respond to an active shooter threat.
“We always worry that you can plan and plan and plan and practice and practice, and it won’t matter, because it will be something else, but it feels like a miracle that everything worked the way it was supposed to, that our team was so incredibly brave, local law enforcement’s been amazing, and that everybody’s OK,” Rabbi Jen Lader of Temple Israel told the Jewish Telegraphic Agency.
Oakland County Sheriff Michael Bouchard and West Bloomfield County Police Chief Dale Young also immediately praised the security response in the wake of the attack.
“I am deeply proud of the response, not only from the security that was on site, but also of all the police officers and the firefighters that are here right now, we train on active shooter events a lot,” Young said during a press conference outside the synagogue on Thursday. “I think that training certainly helped to mitigate what happened here today.”
Indeed, it was a situation that Jewish institutions across the United States have trained for, as antisemitism and threats of violence have ticked up in recent years, especially following the 2018 synagogue shooting in Pittsburgh that killed 11 Jews during Shabbat services. The rabbi of a synagogue in Colleyville, Texas, credited a security training with enabling him to respond when a man took him and three congregations hostage in 2022.
“Everybody flees danger, and our team went straight toward it, and they were the ones who neutralized the terrorist and saved everybody,” said Lader. “And our teachers followed, you know, to the absolute letter, our active shooter training and lockdown procedures, and saved every kid.”
Beyond the synagogue’s full-time director of security, Lader said Temple Israel also has a full team of armed security guards on the premises at all times as well as a remote security system that is able to secure different areas of the building during threats.
In late January, FBI agents also visited Temple Israel to train clergy and staff about how to respond to an active shooter.
According to a social media post from FBI Detroit, the Active Shooter Attack Prevention and Preparedness course “combines lessons learned from years of research and employs scenario-based exercises to help participants practice the decision-making process of the Run, Hide, Fight principles and take necessary actions for survival.”
Michael Masters, the national director and CEO of the Secure Community Network, an organization that coordinates security for Jewish institutions nationwide, said that the outcomes of the attack Thursday reflected the preparedness of Temple Israel.
“Investing in security is an investment, it’s a down payment on the Jewish future,” said Masters. “The community that made up the synagogue, the larger Detroit Jewish community, has been making that investment for years and years, and today, that investment paid off and lives [were] saved.”
Among the security measures that Masters said his organization recommended were “bollards or fences or natural obstructions” to the building, controlling access to the facility through reinforced doors or windows and having a security presence.
“What we hope this reaffirms is that security needs to be an ongoing investment in order to allow Jewish life, faith based life, to thrive,” said Masters. “And very much that investment can result, and did result, in Jewish lives being saved, and so we all need to recognize that and commit ourselves as members of the community at every level to be a part of making that investment at whatever level we can.”
In the wake of the fatal shooting of two Israeli embassy staffers in Washington D.C. in June, the synagogue hosted a town hall on hate crimes and extremism.
Among the speakers at the town hall was Noah Arbit, a lifelong congregant of Temple Israel who represents West Bloomfield in the Michigan House of Representatives. Arbit said in an interview on Thursday that after he first learned of the attack while working on the state house floor, he immediately began to cry and raced down to his home synagogue.
“I campaigned on taking on hate crimes,” said Arbit. “To be working on these issues, and then to see it come home to roost in my own community, in my own synagogue, in my hometown that I represent is, frankly, just like my worst nightmare.”
While Arbit praised the response by security and law enforcement as the attack unfolded, he said he was “outraged and enraged and deeply pained that it was necessary in the first place.”
“Jewish communities across the country and world have watched, you know, for the past decade, as our institutions have congealed into fortresses,” he said. “We are now forced to live behind, basically, you know, militarized, institutionally securitized institutions, and what a shame that is. It’s not just a shame, It’s unfathomable, it’s unforgivable.”
For Rabbi Mark Miller of Temple Beth El, another Reform synagogue a 20-minute drive away in Bloomfield Hills, the attack on Temple Israel served as a stark reminder of why security infrastructure was essential for Jewish institutions.
“This is one of those moments when, for years and years, we have bemoaned that we have to put so much time and energy into security for our institutions,” said Miller. “And this is one of those days that reminds us that we don’t have a choice.”
Miller’s synagogue had a recent security crisis of its own, when a man drove through its parking lot in December 2022 and shouted antisemitic threats as parents walked their preschoolers into the building. The assailant, Hassan Chokr, was sentenced to 34 months in prison in September for illegally possessing multiple firearms inside a gun store after leaving the synagogue.
“It’s a terrifying day, obviously for a lot of people, especially for parents with their kids at not only Temple Israel but at ours and other temples and Jewish institutions,” Miller said.
Lader said that among her congregants, two competing sentiments had jumped out: Those who “never, in a million years, in our heart of hearts, thought it was ever going to happen to us” and others who “knew it was only a matter of time before it knocked on our door.”
But another feeling was even stronger, she said.
“I think the overarching sentiment, and the one that I want to make sure gets out there, is our absolute gratitude to our internal teams, our amazing staff, local law enforcement and our teachers for really, like, a building full of absolute heroes, who were able to keep us safe,” Lader said.
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