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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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He photographed the defining image of 9/11 – and Jewish history for 50 years
Robert Cumins stood on his ninth-floor balcony in Verona, New Jersey, camera in hand, when he saw a plane heading toward Lower Manhattan. He figured it was just another flight out of Newark. He snapped two quick frames anyway — a plane against a skyline, nothing more — and kept watching.
Then came the fireball.
He had no idea, in that instant, that he had already taken the photograph that would define his career — that he was, in fact, photographing the last seconds of the 65 people aboard United Airlines Flight 175, en route from Boston to Los Angeles. He wouldn’t even remember the plane was in the frame until he saw the developed film an hour later. For that hour, he believed he only photographed the explosion, not the moments before.
Twenty-five years on, Cumins, now 78, still lives in that apartment. He still faces the same skyline — a skyline he has spent 25 years learning not to search for two towers that are no longer part of it.
That photograph made Cumins famous. It is one entry — the most-viewed one, certainly — in a career now entering its sixth decade, a career that has put him, again and again, at the edge of history he did not make.
He straightened Israeli Prime Minister Yitzhak Rabin’s bow tie backstage, 10 days before the prime minister was assassinated, then flew to Israel to photograph his funeral. He spent 10 days documenting Israeli Prime Minister Yitzhak Shamir. He stood close enough to photograph the signing of the Oslo Accords, the Camp David Accords, the Israel-Jordan peace treaty — three of the defining diplomatic moments of the modern Middle East.
Call him the Forrest Gump of Jewish history.
‘Turn around, kid’
Cumins’ workday on the morning of September 11, 2001, started with a red light.
He was driving down the hill from his apartment, headed out for coffee, when he stopped at the bottom and, out of habit, flipped on the radio. A WCBS helicopter reporter was already mid-report, something about a tower. By the time the light turned green, an anchor had cut in with the words: the World Trade Center.
Cumins turned the car around. He drove back up the hill. The elevator was sitting there, waiting. He rode up to the ninth floor. Before he was all the way inside his apartment, he could already see smoke pouring off the North Tower, 15 miles across the water. He ran for his camera, loading film and changing lenses as he crossed the living room toward the balcony.
He got there at 9:03 a.m. — four and a half minutes after the stoplight turned green. He’s gone over that stretch of time so often he can repeat it without thinking. A slower elevator, and he never gets the shot.
Cumins believes it was his mother, who died about a month before 9/11, who led the way. “Sometimes I say it was a spiritual thing,” he said. “She was watching over me at that red light. ‘Turn around, kid. This is big.’”
A convertible and a Kinko’s
By the time Cumins got his film to the photo lab in New Milford, he had already forgotten about the plane entirely. The fireball, he remembered — that part was impossible to forget. The plane itself, the thing he’d actually pointed his camera at, was gone from his mind completely.
Cumins stood over the technician’s shoulder as the scanner worked backward through the roll of Kodak film — 19 frames total — hunting for the explosion. They found it. Then he asked to see the beginning of the roll.
The first frame showed the plane against the skyline, smoke already rising from the first tower. In the next, a red dot flared just above the plane’s tail. Then came the explosion. The moment took three frames of film. Getting the picture to an editor took the rest of the day.
Cumins called his agent, who reached an editor at People — the magazine wanted the image immediately, as large as he could send it. Cumins had an AOL account with a 16-megabyte limit. Every file he tried to send bounced back, too big.
He hopped in his Audi TT convertible, top up, and sped to a Kinko’s on Route 3 in Clifton, and spent the day with a store clerk, the two of them trying to coax something too large through a connection too small. Confirmation came at 9 p.m., just ahead of deadline. The photo ran on People’s cover as a double-page foldout.
The top of his car stayed closed for weeks after that. “I could not bring myself to put down the roof,” Cumins said, “to enjoy the simple pleasures of light and fresh air during such a dark time.”
Documenting modern Jewish history
Cumins built a career on trust. At 14, he sent a telegram to President John F. Kennedy’s press secretary asking to visit Washington. The press secretary said yes. It wouldn’t be the last time a powerful person said yes to him.
It was almost by accident that his persuasiveness led him into Jewish photography at all. In 1970, a colleague asked him to shoot a Jewish Federation breakfast in Miami. His first Jewish communal assignment — a parlor meeting in a private home in Elizabeth, New Jersey — followed a few months later. It was the first of hundreds. Over the next five decades, he photographed scores of events and made roughly 250 trips to Israel, building trust as he went.
In 1988, that trust bought him 10 days inside Yitzhak Shamir’s daily life — meetings and meals, including moments when no one else was in the room. “He was very kind to me,” Cumins recalled. The photographs ran in The New York Times Magazine, in Life and in newspapers across the globe.
In October 1995, Cumins was backstage at a black-tie reception in Washington when he noticed Yitzhak Rabin’s borrowed bow tie had come loose from his collar. Cumins walked over and fixed it. “I had spent a lot of time previously with Rabin,” he said. “Otherwise, I would never have gotten near his neck.”
Ten days later, Rabin was assassinated. Cumins flew to Israel and back in a single day to photograph the funeral — soldiers saluting the casket, an aide reading from the blood-stained speech recovered from Rabin’s jacket. Two weeks before, at that reception in Washington, he’d photographed President Bill Clinton and Leah Rabin laughing together. Now he photographed Clinton consoling her as a widow — two photos, worlds apart, taken by the same man.
Even after 9/11 made him famous, Cumins kept doing what he had always done. He signed on as one of Hillary Clinton’s photographers during her first Senate campaign. After she won, he asked to come along, at his own expense, when she made her first trip to Israel as senator. He wanted total access. He got it, as he generally did.
On that trip in 2002, in Prime Minister Ariel Sharon’s office, Clinton introduced Cumins to those gathered: “Mr. Cumins, he took the great picture of 9/11,” she said. Later that trip, at a dinner in Tel Aviv, Cumins caught a quiet moment between Clinton and Shimon Peres, one of his more striking portraits.
‘Split second of innocence’
Somewhere along the way, the work of chronicling history gave way to the work of storing it.
What’s left of his archive now sits in a couple of private storage units in New Jersey — roughly 600 square feet of file cabinets and boxes, labeled by project, holding a record of Jewish and Middle East history that exists nowhere else. It has cost what Cumins describes as “a fortune” over the years. He’s hoping a philanthropist will buy the collection and gift it to an institution built to care for things longer than any one person can. He hasn’t found one yet.
In the meantime, he’s still in the same ninth-floor apartment in Verona, still facing the same Manhattan skyline. He photographs it constantly — beautiful sunrises and sunsets, weather rolling in over the water — and he says there’s almost always a plane somewhere in the frame, whether he’s trying to catch one or not.
Cumins has a phrase for what he photographed 25 years ago: “the final split second of innocence” this country ever had. Between the first plane and the second, there were 17 minutes in which the country still believed, or wanted to believe, that this might be an accident.
Then reality hit. The U.S. was under attack. Life would never be the same, especially for the man who captured that moment in history.
Some photographs you take. Others, it turns out, take you — and don’t ever quite let go.
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Portuguese artists pull out of Jerry Seinfeld-headlined festival
(JTA) — Several Portuguese artists have dropped out of a comedy festival in Lisbon headlined by Jerry Seinfeld, citing their support for Palestinians and implying opposition to Seinfeld’s support for Israel.
At least six acts over recent days have canceled their appearances at the MEO Commedia a La Carte Fest, a new international comedy festival in the Portuguese capital. The event from Oct. 29 to Nov. 1 has advertised that it will host Seinfeld’s first live appearance in Portugal.
Though none of the artists who withdrew mentioned Seinfeld by name, some hinted at a boycott against his pro-Israel views. The Jewish comedian has become one of Hollywood’s most prominent advocates for Israel since October 2023.
Actress and comedian Inês Aires Pereira announced on Instagram on Saturday that “one of the names” featured at the festival “persistently defends ideas and acts that I consider indefensible,” adding, “We cannot relativize or normalize a genocide.”
The comedy duo Cebola Mol posted a graphic of themselves with a watermelon, widely recognized as a symbol of solidarity with Palestinians. “We will celebrate justice, freedom and joy with you on another occasion,” they said on Instagram.
The festival announced on Friday that performances by the groups Tributo Pop and Conjunto Cuca Monga were also canceled, but did not provide reasons. Two other acts, comedian Pedro Tochas and visual artist Vhils, shared their cancellations on Instagram without further details.
Seinfeld has aligned himself with Israel during its current conflict in Gaza, following decades of largely avoiding commenting on political issues. He visited Israel in December 2023 to meet with the families of hostages seized by Hamas on Oct. 7 of that year. Since then, he has attracted attention for a series of dismissive remarks toward pro-Palestinian advocates.
During an appearance last year at Duke University, Seinfeld compared pro-Palestinian activists with the Ku Klux Klan, saying, “The Klan is actually a little better here because they can come right out and say, ‘We don’t like Blacks, we don’t like Jews.’ OK, that’s honest.”
Representatives of Seinfeld and producers of the MEO Commedia a La Carte Fest did not immediately respond to requests for comment.
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UK, France, Canada to ban goods from Israeli settlements
(JTA) —
The United Kingdom, France and Canada will ban goods produced in the West Bank settlements and Jewish neighborhoods of East Jerusalem, British Foreign Secretary Ed Miliband told Parliament on Tuesday, explaining that all such communities were deemed by his country to be illegal.
The declaration exacerbated the rising tensions riling the traditionally strong Israel-U.K. alliance. Israeli Foreign Minister Gideon Sa’ar warned that these steps stoked antisemitism against British Jews in an on-camera statement to reporters in Jerusalem.
Sa’ar charged that the measures were a politicized hostile action deliberately taken ahead of Friday’s Jewish New Year holiday, with an eye toward influencing the country’s Oct. 27 elections.
Israel, he said, is responding by closing the British Consulate in Jerusalem that services Palestinians. It will also remove British representatives from the International Gaza Support Center in Kiryat Gat and halt the British training of Palestinian Authority security forces. He added that Israel would bar the entry of 12 British politicians and other nationals involved in anti-Israel activity.
France and Canada have also announced a ban on the import of settlement goods, Miliband told parliament. He noted that the Netherlands, Ireland, Belgium, Spain and Norway have either banned goods or in the process of doing so.
In the same address, Miliband affirmed Israel’s right to exist, reflected on his own Jewish roots and rejected the notion that there was a connection between the policy steps against West Bank settlement activity and the safety of British Jews.
What is motivating the U.K., Miliband said, is “a deep sense of shame about what has unfolded in Palestine under the eyes of the international community” as well as Israel’s “clear intent to bury the Palestinian state.”
In response, he said, the U.K. “will introduce an import ban on goods from illegal settlements in the occupied [Palestinian] territory” as part of a “new comprehensive sanctions regime” that will be put in place within nine months.
This will include, he said, “action against specific companies and individuals who provide services, such as construction, infrastructure, financing or real estate for settlement expansion.”
To those who “finance or facilitate illegal settlements, let me say this, you will face the full force of U.K. sanctions,” Miliband warned.
Miliband clarified that the ban would not affect the export of religious items or life-saving Israeli medications. He explained that trade with the settlements was minimal and that the greater impact would be the sanctions on services.
As part of declaring the ban, Miliband said that the British government is also adopting the International Court of Justice’s 2024 advisory opinion that all Israeli settlement activity over the pre-1967 border was illegal.
But others in Parliament pushed back against Miliband’s declaration. MP Richard Tice of Britain’s right-wing Reform party said that the sanctions were a grave mistake that would “embolden the scourge of antisemitism against British Jews on British streets,” endanger ties with the United States and lead to “tit for tat” sanctions from Israel.
Miliband shot back that “no British Jew is responsible for the policies of the Israeli government and it behooves all of us to make sure that there can be no confusion about that,” saying that Tice’s statement “fell foul” of that goal.
The U.K. action is the latest escalation in tensions between Israel and the Labour-led British government headed by Prime Minister Andy Burnham, who took power in July.
The prior government, led by former Labour Premier Keir Starmer, had already angered Israel by recognizing Palestinian statehood in 2025, suspending licenses for the export of arms to Israel and freezing talks toward a free-trade agreement.
France and Canada are also announcing a ban on the import of settlement goods, Miliband told parliament. He explained that the Netherlands, Ireland, Belgium, Spain, and Norway have either banned goods or in the process of doing so.
In concert with Miliband’s appearance at Parliament, Britain and 11 other countries issued a joint statement pledging “their intention to introduce national and/or support European restrictions on trade in goods with settlements which are illegal under international law.”
Those other countries were Canada, Denmark, Finland, France, Iceland, Ireland, Norway, Poland, Portugal, Spain and Sweden.
The 12-country bloc said it was taking this step to maintain the viability of the two-state resolution to the Israeli-Palestinian conflict, describing the situation in the West Bank as “rapidly deteriorating.”
In its statement, the bloc stressed that it was taking this step amid an “unprecedented level of settler violence and settlement expansion, including the unacceptable decision to publish tenders for the E1 settlement project.” That project is seen as cutting through land that would render a Palestinian state unviable.
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