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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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After attacks, Jewish security watchdogs warn of ‘most elevated and complex threat environment’ in recent history
(JTA) — A string of recent synagogue attacks across North America and Europe has left security officials sounding the alarm bells.
“We are in the midst of the most elevated and complex threat environment the Jewish community and this country has seen in modern history,” said Kerry Sleeper, chief of threat management and information sharing for the Secure Community Network, a Jewish security organization.
Sleeper’s comment came during an SCN webinar on Friday, held in response to the previous day’s attack on Temple Israel in West Bloomfield, Michigan, where an assailant rammed into the synagogue armed with rifles and smoke bombs.
Though the attack was successfully thwarted by existing security measures, Mitchell Silber, executive director of the Community Security Initiative, said in an interview that Jewish institutions may now need additional layers of protection.
“This might be a bit of a tipping point where we’ve gone to a new level, where really what’s required to secure a Jewish institution in the U.S. starts to look like almost a Europeanization of security,” Silber said.
That would include posting multiple armed guards outside entrances and requiring increased screening before entry, he said. Many European synagogues also require attendees to go through security screening at some distance from the building, rather than at their doors.
“Unfortunately that seems to be where we are right now — the Jewish community has to up its game in terms of the external security of its locations,” he said.
Currently, a shutdown at the Department of Homeland Security since Feb. 14 is halting the review of millions of dollars in security funding for nonprofits, constraining the ability of Jewish institutions and other vulnerable groups to upgrade their security infrastructure.
The Temple Israel attack came within two weeks of attacks in Austin, Texas, and at Old Dominion University in Virginia. Those other attacks were not on Jewish institutions, but Sleeper, a former FBI assistant director, said the “various motivations of the attackers appear to be affiliated with the war between the U.S., Israel and Iran.” He added that the assassination of Ayatollah Ali Khamenei in Iran, and President Donald Trump’s stated desire to facilitate a regime change, have “contributed to the extremely high threat environment.”
Meanwhile, things have escalated outside the United States. Three Toronto-area synagogues were hit with gunfire over the last couple of weeks, and a synagogue in Rotterdam was targeted by an arson attack early Friday morning, allegedly by a group that has also claimed credit for an explosion at a synagogue in Belgium.
The flurry of attacks has the entire Jewish world on edge going into Shabbat — and some watchdogs say things could soon get worse.
“It is not entirely shocking to those of us who’ve watched this space for a long time,” said Mike Jacobson, a senior fellow at the Washington Institute for Near East Policy who served in the State Department’s Counterterrorism Bureau. “I would think things would continue to ratchet up again, at least in the short term.”
He pointed to the Iranian Revolutionary Guard Corps’ activation of sleeper cells — their agents lying in wait until called to action to commit an attack — across the West, as a danger to vulnerable targets, which includes Jewish communities.
Another source of danger, Jacobson said, comes from copycat attacks.
“There’s also this mix that makes it really hard to sort out in the initial stages, where you’ve got people, not only who may be directly tied to Iran, but people who are so-called ‘inspired’ by this,” Jacobson said. “Those are often really hard for law enforcement to get advance notice on.”
Not always does the threat come from direct orders from Iran, he said. “It’s often difficult to tell: Is this something that is directly tied to the organization, or is this something that is more by someone inspired [by the IRGC]?”
He added, “They are trying to inflict pain in as many directions as they can.”
As security organizations encourage increased caution and awareness of suspicious activity, they are also emphasizing that those measures shouldn’t come at the expense of gathering in communal Jewish spaces.
“We’re not going to let the terrorists take away our confidence or the ability to embrace our religion,” said Michael Masters, SCN’s national director, during the Zoom webinar.
Masters’ sentiment is also shared by congregational leaders like Rabbi Adam Roffman, of Congregation Shearith Israel in Dallas.
“Sure, security is something we think a lot about, and we’ve done our best to protect ourselves,” Roffman said. “And at the same time, the life of this community goes on.”
At Temple Israel, Shabbat services are being streamed from the nearby country club that served as a reunification center for families after the attack. The synagogue wrote on Facebook: “We’re so glad you’re joining us tonight as our community comes together to welcome this much needed Sabbath.”
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Muslim advisor to Trump’s Religious Liberty Commission resigns to protest ‘Zionist political agenda’
(JTA) — The Trump administration’s Religious Liberties Commission was wracked again this week over anti-Israel sentiment, as a second affiliated individual has exited while claiming it had been hijacked by a “Zionist political agenda.”
Sameerah Munshi, a Muslim member of a board that advises the commission, announced late Thursday that she would be stepping down. Her reason, she said, was to protest the dismissal of commissioner Carrie Prejean Boller, who was ousted last month after she used a hearing on antisemitism to expound on her objections to Israel and Zionism.
“In this country, people of faith are having their free expression stripped away, and even their lives put at risk, because of their deeply held beliefs about Palestine, all for the sake of a Zionist political agenda,” Munshi wrote in a resignation letter she posted to Substack. “The removal of a Catholic commissioner for expressing dissenting views grounded in her faith is the exact affront to free expression and religious liberty that I spoke out against.”
Munshi posted her resignation to X just before 10 p.m. Thursday, hours after an attacker drove a car into a Michigan synagogue while a preschool was in session. She did not mention the incident in her letter, which she said instead was timed to Prejean Boller’s formal ousting by Trump earlier that day.
The Council on American-Islamic Relations praised both Munshi and Prejean Boller on Friday for their “courage.”
“Ms. Prejean Boller and Ms. Munshi fulfilled the commission’s stated purpose by opposing all forms of anti-religious bigotry and standing up for every person’s right to express their religious beliefs, including opposition to Israel’s genocide in Gaza,” the council said in a statement. “The commission is now clearly meant to protect Israel from criticism, not to protect religious freedom for the American people.”
Munshi is a recent Brown University graduate and onetime director of the Muslim organization Coalition of Virtue. She was embraced by the Christian right after publicly opposing a change in a Maryland public school system’s policy allowing parents to opt their children out of curriculum, including LGBTQ material, that went against their religious beliefs. The policy Munshi protested was eventually taken to the U.S. Supreme Court, which ruled in favor of parents who had challenged the school.
Munshi’s biography on the commission’s website was still active as of Friday. It states, “Sameerah has courageously spoken out against forcing children to learn radical gender ideology in schools.”
Munshi had been outspoken for weeks about her support of Prejean Boller, with whom she was ideologically aligned on Israel, after Prejean Boller’s remarks during the antisemitism hearing caused a firestorm.
Like Prejean Boller, Munshi is also a follower of Candace Owens, the right-wing pundit who has embraced a number of antisemitic conspiracy theories. She praised Owens’ conversation with Jewish pro-Palestinian academic Norman Finkelstein last fall, writing on Instagram that Owens had a “rare willingness to confront uncomfortable truths head-on,” and suggested future guests for Owens to interview.
Munshi has been aligned with Prejean Boller since the fall, when Prejean Boller approached her after Munshi testified to the commission in favor of public schools’ rights to protest Israel. “Carrie has been wonderful. We’ve become pretty good friends at this point, and we’ve shared a lot,” Munshi told Middle East Eye.
On her Instagram before last month’s antisemitism hearing, Munshi wrote that the two of them had pushed the commission to invite “fair witnesses” to the hearing that would have reflected their own perspectives, including Finkelstein, left-wing Israeli academic Miko Peled, anti-Zionist rabbi Yaakov Shapiro, and David Spevak, an American Jewish activist and descendant of Holocaust survivors who has compared Jewish summer camps and cultural programs to the Hitler Youth.
After Prejean Boller’s performance at the hearing, during which she told Jewish witnesses that her Catholic faith compelled her to oppose Israel and Zionism, Munshi defended her from blowback from Jewish groups and the Trump administration. The Wall Street Journal wrote in an editorial that the two “left together and appeared to be texting amid the hearing,” appearing to allege collusion in Prejean Boller’s line of attack.
“Christian views and beliefs were targeted as ‘antisemitic’ for merely expressing concerns about the ongoing conflation between criticism of the state of Israel and anti-Jewish animus,” Munshi wrote on her Substack in February. “During the hearing, an attempt was made by a collection of ‘Israel First’ actors to redefine antisemitism to include all criticism of Israel, smear many concerned citizens as bigots, and even gatekeep what counts as ‘real’ Judaism by confining it to Israel-first Jews.”
Trump established the Religious Liberties Commission last year, with the order’s text stating that it would “offer diverse perspectives on how the Federal Government can defend religious liberty for all Americans.” Munshi was one of three Muslims on the commission and the only Muslim woman; all three were chosen to serve in an advisory capacity, rather than as full commissioners.
In her resignation letter Munshi also said she was resigning in protest of the Trump administration’s war with Iran, which she wrote was being done “at the urging of a genocidal state.”
“I support America over Israel, and unfortunately that means I cannot support Trump or this government,” Munshi continued.
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Oklahoma attorney general accuses officials of rigging vote on proposed Jewish charter school
(JTA) — Oklahoma’s attorney general is accusing a state board of trying to rig the legal fight over a proposed Jewish charter school — a dispute that could open the door for publicly funded religious charter schools across the United States.
Attorney General Gentner Drummond filed a motion this week asking an Oklahoma County district judge to intervene after the Statewide Charter School Board rejected an application to open the Ben Gamla Jewish Charter School, a virtual statewide school that would combine secular studies with Jewish religious instruction.
Drummond alleges that the board engineered its vote so the rejection would focus only on the school’s religious character, strengthening the legal case for the school’s supporters, who are preparing a federal lawsuit challenging Oklahoma’s ban on religious charter schools.
“A state agency that deliberately hobbles its own legal position is not doing its job — it is betraying Oklahoma taxpayers. I will not allow that,” Drummond said in a statement.
He added: “The Board deliberately suppressed those findings to manufacture a cleaner path to federal court. I will not allow this Board to rig the record at taxpayers’ expense.”
Drummond asked the court to order the board to issue a new rejection letter detailing all of the reasons the proposal was deficient.
The dispute centers on the National Ben Gamla Jewish Charter School Foundation, led by former Florida Democratic Rep. Peter Deutsch. The group applied to open a statewide online charter school serving kindergarten through 12th grade students beginning next school year.
The proposal called for a curriculum combining secular coursework with daily Jewish religious studies. If approved, it would have become the nation’s first publicly funded religious charter school.
Jewish groups in Oklahoma have opposed the proposal, saying they prefer not to be thrust into the middle of a debate over church-state separation and that there is little demand for such a school among local Jewish residents.
The charter board voted earlier this week to reject the application, citing a 2024 Oklahoma Supreme Court ruling that charter schools must remain secular.
That ruling overturned a previous effort to open a Catholic charter school, St. Isidore of Seville Catholic Virtual School. An appeal to the U.S. Supreme Court ended in a 4–4 tie after Justice Amy Coney Barrett recused herself, leaving the state court decision in place.
Several board members said the precedent left them no choice but to reject Ben Gamla’s application.
At the same time, the board has signaled it may support the school’s broader constitutional argument in court. The board hired the conservative Christian legal group First Liberty Institute to represent it in the expected litigation and has indicated it could back the school’s position once a lawsuit is filed.
Drummond, who also fought the Catholic charter school proposal, said the legal question about religious charter schools had already been settled by the state courts and insisted his objection to the board’s vote was procedural rather than religious.
Among the issues he says the board improperly left out was a discrepancy in Ben Gamla’s projected enrollment.
Deutsch initially said the online school would serve about 40 high school students, but the formal application projected enrollment of 400 students across grades K-12.
State officials also raised questions about the composition of the school’s governing board. Oklahoma law requires a charter school board to include a parent or grandparent of a student. Ben Gamla listed Brett Farley, executive director of the Catholic Conference of Oklahoma, as its parent representative.
Supporters of the school have said they plan to challenge Oklahoma’s prohibition on religious charter schools in federal court, arguing that excluding religious schools from charter programs violates the Constitution’s protections for religious freedom.
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