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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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With anti-Arab campaign ad, Netanyahu stoops to new moral and political lows
Israeli election campaigns have often been ugly. They have featured exaggeration, fearmongering and outright deception. But even by those standards, the first major campaign advertisement by Prime Minister Benjamin Netanyahu’s Likud party, posted on Netanyahu’s X account on Tuesday, managed to shock much of the country.
The AI-generated video depicts former military chief Gadi Eisenkot, who has become the standard-bearer for the opposition, walking through a sunlit field toward a young Jewish man before passing him by to embrace Mansour Abbas of Ra’am, the United Arab List, instead.
The young man looks strikingly like Eisenkot’s son, Gal, who was killed fighting in Gaza in late 2023 — although Likud insists he isn’t meant to. Strictly speaking, there is enough difference to sustain the protestations. The young man has longer, wavier hair than Gal Eisenkot did — just enough, perhaps, to preserve plausible deniability. Yet almost everyone I know believed they were watching a father joyfully approaching his slain son, seemingly restored to life, only to ignore him in favor of an Arab political leader at a time when Arab political participation in Israel is particularly contentious.
The only possible explanation: Likud wants their campaign to be as mean as possible. Or perhaps that they believe that anything that creates a buzz — and therefore distracts from the governing coalition’s disastrous and controversial policies, including a wildly unpopular recent legislative blitz — is a good thing.
And buzz there is. The perception that a father’s personal loss had been weaponized for electoral gain struck many as a line that simply should not be crossed. “This is Netanyahu, and this is his machine of incitement”, wrote Einav Zangauker, whose son was held hostage in Gaza by Hamas, on social media. “This isn’t politics,” Zangauker added, but rather “an attack on a bereaved father and an assault on his dignity. It is the lowest of the low.”
“I turn to elected representatives, activists, and all candidates from all parties, and demand that you do not cross red lines. Do not turn rivals into enemies,” Israeli President Isaac Herzog said. “I call on the people of Israel, in a clear voice: Remember that elections are not a civil war.”
But even if one puts aside the controversy surrounding the young man altogether, the advertisement remains deeply troubling. It is, at its core, an exercise in incitement against Ra’am — and, by extension, against the very idea that Arab citizens may legitimately participate in governing Israel.
Abbas himself accused Netanyahu of “trying to incite between different parts of society”; about a fifth of Israelis are Arab, and the ad was obviously trying to delegitimize collaboration with the parties who generally represent them.
From Likud’s perspective, that too is logical — so long as they ignore the goal of Israel remaining a democratic country in which component ethnic groups live in harmony. It’s logical because Arab parties have always been part of the opposition to Likud and the chances are high that Eisenkot might need them, even passively, to successfully craft a coalition after the Oct. 27 election.
This isn’t just dangerous. It ignores the essential role that Arab parties have played in building toward a strong Israeli future.
Ra’am, under Abbas, has been the most integrationist Arab party Israel has ever seen. Abbas broke with decades of Arab political orthodoxy by arguing that Arab citizens should seek influence through practical cooperation with whichever Zionist government Israelis elected. He has repeatedly recognized Israel as the nation-state of the Jewish people while demanding full equality for its Arab citizens.
Whatever one thinks of his politics, these choices have represented one of the boldest experiments in Jewish-Arab partnership since the state’s founding.
That experiment briefly succeeded. Ra’am joined Naftali Bennett and Yair Lapid’s coalition in 2021 and demonstrated that Arab participation in government could become something ordinary rather than revolutionary.
More awkward still for Likud, Netanyahu himself spent some weeks after the 2021 election attempting to persuade Abbas to support — or even participate in — his own coalition. Those negotiations failed for one principal reason: Far-right firebrand Bezalel Smotrich — now Netanyahu’s finance minister — refused to countenance a government dependent on an Arab party. Without Ra’am, Netanyahu lacked a majority.
It is therefore surreal to portray Eisenkot’s willingness to work with Ra’am as somehow beyond the democratic pale, when not so long ago, Netanyahu himself tried to do precisely the same thing.
Nor should anyone pretend that Arab parties suddenly became relevant because of Eisenkot. Since the emergence of today’s political blocs, Arab parties have almost invariably belonged to the anti-Likud camp. Any center-left coalition aspiring to govern has depended, directly or indirectly, on their parliamentary support. That is not a distortion of Israeli democracy. It is one of its enduring structural realities.
Which brings us to the larger significance of this episode.
Many Israelis have long predicted that this Likud campaign would barely concern policy at all. They expected, instead, an effort to delegitimize any prospective change government by portraying it as illegitimate because it relied on Arab parties. They expected renewed attempts to cast Arab political participation as inherently suspect. They expected emotional manipulation to substitute for argument and personal attacks to eclipse serious debate. Some feared renewed efforts to discourage Arab turnout and disqualify Arab parties from the ballot.
That appears to be exactly what they’re getting.
The remarkable thing is not merely that Likud produced this advertisement, but that doing so was effectively its first act of the campaign, which kicked off after the Knesset recently went into recess.
Before voters had heard competing visions for Israel’s economy, security or diplomacy, the country’s governing party chose to launch its campaign by inflaming fears about Arab political participation while employing imagery that countless Israelis immediately interpreted as mocking one father’s unbearable personal loss.
By the next day, competing ads using a similar aesthetic were put out by opponents of Netanyahu. One depicted Netanyahu on a similar field running past a soldier to hug a Haredi politician holding a sign that says — as many Haredi anti-draft protesters chant — “we’d rather die than serve.”
One reason AI is so attractive to political strategists is because it blurs responsibility. Images can be carefully engineered to evoke a conclusion while remaining just different enough to deny that such a conclusion was ever the intention. The technology offers something every spin doctor craves: emotional impact coupled with plausible deniability.
“I do not think we can allow this to continue,” lamented David Lau, a former chief rabbi of Israel, who has served in the military. “We must stop all these disputes, all this talk, and all these behaviors. This path does not lead to building anything. It does not lead to peace. It is a bad path, and I am even more concerned about the next generation.”
It is entirely possible that this advertisement will prove to have established the moral tone of the campaign. Israel deserves better.
The post With anti-Arab campaign ad, Netanyahu stoops to new moral and political lows appeared first on The Forward.
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Reed College agrees to sweeping reforms as part of Title VI antisemitism settlement
(JTA) — Reed College has agreed to a host of far-reaching institutional changes, including asserting that targeting Jewish Zionists will be considered discriminatory, in order to settle multiple federal antisemitism investigations, parties to the complaint announced Wednesday.
The settlement was announced by the Anti-Defamation League and the Brandeis Center for Human Rights Under Law, which jointly filed the complaint, under Title VI of the Civil Rights Act, which prohibits discrimination at any institution receiving federal funds. It comes as campuses across the country, facing threats of losing federal funding under the Trump administration, have demonstrated willingness to negotiate new antisemitism protections.
As part of the agreement, the private Portland, Oregon, liberal arts school says it will insert language into its discrimination policy asserting that “for many Jewish people, Zionism is integral to their religious, ancestral and/or ethnic Jewish identity,” and that “targeting Jews on the basis of their Zionist identity” will be considered discriminatory.
The school will also contract a third-party consultant to monitor and report on its effectiveness in adhering to antisemitism protections, role that is unusual in similar Title VI agreements. The agreement says Reed will “consider” the International Holocaust Remembrance Association’s working definition of antisemitism, which includes some criticisms of Israel, and implement antisemitism training for faculty and staff.
“We take concerns about antisemitism, and all forms of unlawful discrimination, seriously, and we will continue to support the well-being, safety, and success of every member of our community,” a Reed College spokesperson told the Jewish Telegraphic Agency in a statement acknowledging the agreement. Reed declined to comment further.
ADL CEO Jonathan Greenblatt and Brandeis Center officials praised the agreement in a release as a potential model for other colleges.
“We believe it should serve as a model for other schools,” Denise Katz-Prober, director of legal initiatives at the Brandeis Center, told JTA about the agreement. The required language in Reed’s discrimination guidelines, she said, is “very clear about what constitutes anti-Zionist conduct in violation of civil rights and in violation of the policy.”
“This outcome demonstrates how the Title VI process can work to effectively protect Jewish students,” Greenblatt said in his own statement.
Around 100 students at Reed College are Jewish, or about 7% of the total student body, according to estimates from Hillel International. A request for comment to the director of PDX Hillel, which serves Jewish students at Reed and others in the region, was not immediately returned.
The resolution stems from two anonymous Title VI antisemitism complaints from Jewish former Reed students, both filed in 2024 under the Biden administration. One of those cases related to a student whose dorm-room mezuzah was vandalized, and who herself was later pelted with rocks, during a pro-Palestinian demonstration in spring 2024. The student later left the school out of concern for her safety.
Both of the described acts would have already been considered violations of school policy for reasons unrelated to the student’s Jewish or Zionist identity. Brandeis’s Katz-Prober argued both should have also been considered in the context of her targeting by anti-Zionist activists.
“It might be difficult for someone to, at first glance, understand whether it was simply an assault or an assault motivated by bias,” she said. The case, she said, demonstrated how in some cases, “‘Zionist’ is merely a codeword for Jew.”
Katz-Prober also touted the agreement’s mandate that the school bring on a third-party compliance consultant, separate from its Title VI coordinator. While she insisted that such a role would be “independent” and free of bias, she noted that both the ADL and the Brandeis Center would have a role in their selection.
“Both sides get a say,” she said.
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Arizona Rep. Andy Biggs cruises to GOP nomination for governor amid allegations of antisemitism
(JTA) — Arizona Rep. Andy Biggs, who has drawn criticism for ties to white nationalist figures, will officially be the Republican nominee for Arizona governor, after winning the primary on Tuesday night.
Biggs, who is backed by President Donald Trump, has drawn criticism for encouraging Stew Peters, an internet personality, and appearing on his show. Peters has labeled Judaism a “death cult” and has called for a “final solution” that involves the deportation of American Jews, and multiple watchdogs identify him as promoting antisemitism.
“Keep preaching,” Biggs told Peters at the end of his June 2023 appearance on the show, during which they discussed government corruption and Biggs agreed with Peters that the FBI should be abolished.
Biggs, 67, who won handily with 73.4% of votes according to multiple media outlets, will challenge Democratic Gov. Katie Hobbs in what is expected to be a competitive race in November. Biggs has represented Arizona’s 5th Congressional District, which is outside of Phoenix, since 2017.
His opponent in the GOP primary, Rep. David Schweikert, had put out a campaign mailer in March tying Biggs to white supremacy and antisemitism. The mailer featured mentions of Biggs’ interview with Peters as well as Biggs’ endorsement of Texas GOP candidate Brandon Herrera, who owned a copy of “Mein Kampf.”
Biggs’ campaign did not respond to the Jewish Telegraphic Agency’s request for comment, but in a local TV interview last month he called the accusations politically motivated and said, “This notion that I am antisemitic is absolutely one of the most ludicrous, insane arguments ever.”
In 2024, Biggs opposed the bipartisan Antisemitism Awareness Act, which passed in the House of Representatives. Biggs wrote that he opposes antisemitism and that the “pro-Hamas, pro-genocide, anti-Israel events happening across the nation are sickening.” He rejected the legislation, he said, because it was “so poorly drafted that it violates the Constitution and could have serious ramifications for the Christian community.” Right wing Republicans objected especially to the bill citing a definition of antisemitism that included as an example the claim that the Jews killed Jesus.
That same year, Biggs attended a rally co-sponsored by the Proud Boys, an extremist militia style group. In 2019, he spoke at a “Patriotism over Socialism” rally in Arizona, which watchdogs warned would draw extremist groups.
Media Matters, a group that mostly monitors right-wing groups, in 2023 wrote that “the links between Biggs and far-right extremists have been well-documented,” citing among other things his ties to another far-right group, the Oath Keepers.
The Republican Jewish Coalition did not respond to a question over whether it would support Biggs’ run for governor.
At a campaign event on Tuesday, Hobbs skewered Biggs for his denial of Trump’s 2020 election loss, and for not acknowledging Hobbs’ narrow 2022 gubernatorial victory over Republican Kari Lake.
This article originally appeared on JTA.org.
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