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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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Whatever you think of Ilhan Omar, these threats are unconscionable
The Trump administration is reportedly planning to build a case to strip Congresswoman Ilhan Omar (D-MN) of her citizenship and eventually deport her.
It is my hope that American Jews — even those who do not like Omar and can recite every questionable comment she has made over the past 15 years to illustrate why — will understand this as offensive and outrageous not only because they are Americans, but because they are Jews.
The Trump administration may claim that it is building a case against Omar due to paperwork (reports suggest that they are interested in whether her father listed her age as 17 on her citizenship application when she was really 18). It is similarly filing dozens of lawsuits attempting to denaturalize citizens by trying to prove they lied in the process of gaining citizenship. However, that this is happening now, ahead of the midterm elections against a sitting member of Congress, a high-profile progressive whom the president has said should “go back” to her country of origin, suggests that it is, to put it mildly, politically motivated.
Evidently, the Trump administration sees citizenship not as a right or a responsibility but as a reward, one that can be taken away if that is seen as useful to the president and his adherents. That use could be silencing political opposition or something as simple (and callous) as an opportunity to brag about the sheer number of attempted denaturalizations.
Jews, too, have found themselves on the wrong end of political denaturalization. I do not mean to compare the Trump administration to the Nazis, but the stubborn fact is that Jews were indeed stripped of their citizenship as part of a political project in Germany and elsewhere in Europe in the 1930s and 40s. And in the early 20th century in the United States, it was Jews who politicians claimed were incapable of assimilating, of ever really being a part of the United States. These arguments culminated in legislation that kept out Jews who could have found refuge here. The threat of denaturalization and the experience of perpetual otherness is a grievous part of modern Jewish history; we should be offended by its presence in our political present.
Jewish tradition as well as history encourages us to stand up to authority when that authority is wrong. Mordecai refuses to bow to Haman; Nathan yells at King David for sleeping with Bathsheba and having her husband killed; Moses famously urges Pharoah to change his oppressive ways. Even God is on the receiving end of pushback when Abraham pleads and negotiates to spare Sodom.
I do not think one needs to be Jewish to be outraged by the attempt to denaturalize Ilhan Omar. I think it is also bone-chilling as an American who believes we, including our elected officials, have the right to openly oppose our president, and I am worried as a person who thinks it would be good to continue to live in a democratic republic. And I am sure that there are Jews who will say that Omar deserves to lose her citizenship because she has said things about Israel they do not like.
But the Jewish lens through which I see this is that it is right to challenge power when it is abused, and it is wrong for the powerful to make a show of trying to cast their opponents out of the country.
The point is not whether Trump can make good on the threat to strip Omar of her citizenship and deport her, but that it is obscene to use denaturalization as punishment for being a high-profile political opponent in the first place. If he is trying to make it more dangerous to speak out while being from the “wrong” country, then the rest of us need to say that this is a fundamental misunderstanding of what it means to be an American citizen.
We should do this because we are Americans and we should do this because we are Jews. We should do this because of the ways in which our American and Jewish identities bleed into one another. And, we should do this because we may not know exactly whether it is as Americans or as Jews that we know we have to protect the right to speak truth to power, but we know we need to do it all the same.
The post Whatever you think of Ilhan Omar, these threats are unconscionable appeared first on The Forward.
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Germany couldn’t stop Hitler’s election tactics; can America stop Trump’s?
Herding political opponents into prisons and concentration camps, suspending civil liberties, and sending SA thugs to destroy newsrooms and beat up journalists were among the means used by Adolf Hitler to game Germany’s parliamentary election of March 5, 1933, won by the Nazis.
As much as Donald Trump might fantasize about deploying such brutal tactics to subvert our midterm elections, he hasn’t done so — yet. But his objective is the same: Detonate constitutional barriers standing in the way of his lust for power. “Cheat like hell,” Trump told the GOP’s midterm convention last month.
Historian Timothy Ryback has just published a book about the last gasps of the Weimar Republic, titled 53 Days: How Hitler Dismantled A Democracy. The 53 days begin when Hitler becomes chancellor on Jan. 30, 1933, and end with the Reichstag’s March 23 passage of the Enabling Act, which gave him absolute power.
For our own perilous time, there is another number to take note of: 652 — the number of days between Trump’s second inauguration and our Nov. 3 midterm elections.
Hitler’s long march to despotic power occurred over 3,422 days — from his failed Beer Hall Putsch on Nov. 8-9, 1923, up until passage of the Enabling Act.
After spending less than a year of a five-year sentence for the failed 1923 coup, Hitler returned to a Nazi party that was in utter disarray. But the Great Depression turned the Nazis’ fortunes around, as jobless and disaffected Germans flocked to Hitler with his promises to make Germany great again. In parliamentary elections in 1930, the number of Reichstag seats held by the Nazis rose dramatically from 12 to 107, and more than doubled that in elections in 1932, making them the largest party. After some backroom political wheeling and dealing, President Paul von Hindenburg offered the chancellorship to Hitler, which he accepted on Jan. 30, 1933.
Even though Hitler was chancellor, his coalition wasn’t dominated by Nazis. When the Reichstag went up in flames on Feb. 27, 1933, der Führer had the pretext he needed to begin dismantling the last remnants of democracy. The Nazis’ first targets were Communists. More than 4,000 were arrested in the initial hours after the fire. It didn’t take long for Social Democrats, trade unionists and Jews to also face raids, arrests, beatings and terror, as Hindenburg — at Hitler’s urging — issued a decree that suspended Germans’ civil liberties.
There was still a barrier standing in Hitler’s way: the Reichstag. But Hitler had a scheme for getting rid of it: calling for a new election and ultimately engineering a vote by the Reichstag to abolish itself.
In the days and nights before the national election, set for March 5, Nazis carried out a campaign of repression and menace across the country. Brandishing firearms, storm troopers ruled the streets. Homes of Hitler critics were raided. His campaign speeches were blasted from loudspeakers. Voters were offered rides to the polls in transports organized by the Nazis, an unsubtle hint at which party they should vote for.
In the election, the Nazis and their Nationalist allies won a majority of seats in the Reichstag but fell short of the two-thirds needed to amend the constitution. But Hitler had a workaround: Convene the Reichstag to vote on a measure that would allow him to declare laws without the approval of the federal legislative body. With Communist delegates of the Reichstag either in hiding or in custody, Hitler already had a structural advantage; they wouldn’t be there to vote. With the Reichstag building destroyed, the delegates convened on March 23 inside the Kroll Opera House, which swarmed with armed storm troopers and members of the SS who harassed and threatened delegates who were either on the fence about giving Hitler absolute power or were known to oppose it.
In the end, weeks and months of trying to tilt elections through terror and intimidation gave Hitler his ultimate prize: of 538 delegates in the Kroll Opera House, only 94 — all Social Democrats — voted against the Enabling Act. In effect, German democracy was steered by Hitler into committing suicide.
In an essay for Literary Hub, Timothy Ryback noted parallels between Hitler’s election victory on March 5, 1933 and our midterm elections and cataloged them.
They include Trump’s “brazen attempt to quash negative press coverage” and Hitler’s and Trump’s virtually identical pre-election low approval ratings. Both the Nazi leader and the American president had gone to court to try to have earlier election results overturned, and the German election, like our fast-approaching midterms, was seen as a referendum on the nation’s leader.
“Amidst all the turmoil, everyone understood that the March 5 election was a make-or-break moment not only for the Hitler chancellorship but for democracy itself,” Ryback wrote.
With the midterms just around the corner, this can be said about America as well.
Since Trump’s second inauguration on Jan. 20, 2025, he has thrown more effort into trying to rig the midterms for the Republicans than into virtually any other endeavor — other than perhaps misusing his powers to enrich himself and his family, and dreaming up monuments to himself.
Trump’s pardon of 1,500 insurrectionists who stormed the capitol on Jan. 6 was an early signal that the defeated president had no intention of playing fair during the 2026 midterms. What followed was a barrage of assaults on the election system. Here’s just a partial list: lawsuits demanding sensitive voter data, the gutting of oversight bodies, intimidation of election officials and orders for key GOP-led states to redraw their congressional districts — all designed to both undermine Americans’ trust in the election system and manufacture pretexts for contesting any midterm outcomes that displease him.
Amid these relentless attempts to subvert the midterms, the Democrats have had success at blocking some of Trump’s poisoned salvos, such as holding the line against the so-called SAVE America Act and fending off Trump’s attempts to seize voter information. But none of this deters Trump, who just comes back with more schemes. The latest revelations come from documents obtained by Democracy Forward, a legal advocacy organization.
Those documents show that “U.S. Immigration and Customs Enforcement (ICE) collected tens of millions of voter records, explored undercover investigations against voter registration groups and considered feeding state election data into a system used to locate people for deportation as part of a sweeping federal effort to find alleged voter fraud ahead of the 2026 midterms,” according to Democracy Docket, which reviewed the documents.
“This is an absolute smoking gun,” said Democracy Docket founder Marc Elias.
Trump has openly suggested a federal takeover of election administration, and during the past several months it seems like he’s been laying the groundwork for that to happen if he doesn’t get the results he wants on Nov. 3. It’s all too easy to imagine horror scenarios: Trump claims massive voter fraud, his supporters storm county election offices in protest, the FBI seizes ballots and voting machines, unrest erupts across the country, Trump declares martial law.
If Trump’s schemes trigger the kind of disorder he appears to be preparing for, the question will be whether our courts, our press, our civil servants and our voters stand firm. Germany’s institutions bent until they broke. Ours have bent, but they have not yet snapped. What happens next will reveal whether they still possess the steel that Germany’s lacked.
The post Germany couldn’t stop Hitler’s election tactics; can America stop Trump’s? appeared first on The Forward.
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Sally Rooney’s publisher stops selling her books in Britain, citing ban on pro-Palestinian group she backs
(JTA) — Sally Rooney’s publisher says it will stop supplying her books in the United Kingdom because current legislation prevents it from passing her earnings on to her.
The best-selling Irish writer, whose work includes the novel “Normal People,” which was adapted into a hit BBC drama, has long been a vocal supporter of the Palestinian cause.
Faber said it would no longer supply her books in the United Kingdom because of her backing for Palestine Action, a group that the British government last year proscribed as a terrorist organization, saying it had “orchestrated a nationwide campaign of direct criminal action against businesses and institutions.”
“Current legislation in the UK has led to circumstances where Faber cannot pass on UK earnings to Sally Rooney for her work,” the publisher said.
“To sell a writer’s work and not be able to pass on earnings is an unconscionable situation for a publisher,” it said. “As such, and in full agreement with Sally, we have taken the decision that we can no longer supply her works in the UK in any format. We remain the proud publisher of her remarkable body of work, which we will continue to sell in other territories.”
Faber had no further comment, the statement said.
Yvette Cooper, then the Home Secretary, banned Palestine Action last year following an attack by the group on the Royal Air Force base at Brize Norton which caused millions of pounds of damage. It had previously targeted businesses and premises which it said were linked to Israeli defence companies.
Soon after the announcement, Rooney wrote an opinion piece in the Irish Times in which she doubled down on her support for Palestine Action, adding that she would give the proceeds of her books to back the group. “If this makes me a ‘supporter of terror’ under British law, so be it,” she wrote.
In a statement following the action announced by Faber, Rooney cited her Irish Times opinion piece as she explained that the publication of her books “could now constitute a serious criminal offence.”
The ban of Palestine Action has proven to be highly contentious in Britain. Back in February, the group’s co-founder Huda Ammori challenged the move in the High Court, with Rooney providing a supportive witness statement. She said at the time that she was “almost certain” her work would be dropped in Britain if the ban persisted.
The court ruled in Ammori’s favor, but that decision was overturned by the Court of Appeal in June. The Supreme Court is due to hear an appeal next month.
Rooney said on Wednesday: “After a process of consultation and deliberation, and with my full agreement, my publisher Faber has therefore determined that it can no longer supply my work within the UK.
“I have made every effort to be honest with the public about my beliefs and intentions, and I am wholly prepared to accept the consequences.”
Rooney’s support for the Palestinian cause predates the attack by Hamas on Oct. 7, 2023, and the subsequent war in Gaza. In 2021 she declined to sell Hebrew translation rights for her novel “Beautiful World, Where Are You?” to the Israeli publisher that had previously released her books in Hebrew.
At the time, she said she supported the BDS movement and would not work with an Israeli publisher unless it is willing to “publicly distance itself from apartheid and support the U.N.-stipulated rights of the Palestinian people.”
That move prompted backlash in Israel and beyond, including calls to boycott Rooney’s work. Israeli bookstore chains reportedly removed some of her books from shelves.
However, earlier this year she agreed to have her latest novel, “Intermezzo,” published by an Israeli publisher approved by boycott activists.
This article originally appeared on JTA.org.
The post Sally Rooney’s publisher stops selling her books in Britain, citing ban on pro-Palestinian group she backs appeared first on The Forward.
