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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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Circumcision could be ‘child abuse’ if done wrong, UK prosectors warn after deaths
(JTA) — British Jews are weighing in after authorities said they are considering deeming some circumcisions “a form of child abuse” following deaths from the procedure.
The Crown Prosecution Service, the region’s chief agency for criminal prosecutions, said that while male circumcision is not a crime, it may constitute child abuse “if carried out incorrectly or in inappropriate circumstances,” according to a draft document seen by the Guardian.
This document, which looked at circumcision as a potential “harmful practice” alongside virginity testing, breast flattening and exorcisms, has driven heated debate among Jewish and Muslim leaders since it was revealed this week.
The draft guidance follows a coroner’s report from Dec. 28 about Mohamed Abdisamad, a 6-month-old boy who died in London from a streptococcus infection caused by his circumcision in 2023.
The coroner warned of “a risk that future deaths could occur unless action is taken,” noting that “any individual may conduct a Non-Therapeutic Male Circumcision (NTMC) without any prior training.” He said there was no system to ensure that people who conduct religious circumcisions have accreditation or meet requirements for infection control.
In the past, another coroner raised similar concerns over the 2014 death of Oliver Asante-Yeboah, who developed sepsis after his circumcision by a rabbi. Male circumcision was a factor in 14 deaths in England and Wales since 2001, half of them men over 18 and half boys under 18, according to the Office for National Statistics.
Unlicensed circumcisions are a subject of mounting scrutiny in Europe, raising alarm in some Jewish communities. In May, Belgian police raided three homes in Antwerp as part of an investigation into illegal ritual circumcisions. And in 2024, a rabbi from London was arrested and imprisoned in Ireland for allegedly performing a circumcision without required credentials.
Some Jewish leaders swiftly condemned the Crown Prosecution Service document.
“Calling circumcision child abuse is fundamentally antisemitic,” said Gary Mond, founder of the Jewish National Assembly, to the Jewish News Syndicate.
Jonathan Arkush, co-chair of the Milah UK group that advocates for Jewish circumcision, told the Guardian that the document’s language about circumcision was “misleading” and he would be in touch with the prosecutors.
“The incidence of complications in circumcision performed in the Jewish community is vanishingly rare,” he said. “Circumcision is a core part of our identity.”
Other Jewish voices have urged action to enforce medically safe circumcisions. Rabbi Jonathan Romain, who oversees Reform Judaism’s religious court in Britain, said it was “time to clamp down on rogue practitioners” and called for mandatory training, monitoring and annual reports on the practice.
“Given that it is a longstanding and important tradition among Jews, Muslims and various other cultures, the best way forward is to only permit circumcision if it is practised by someone specifically qualified for it and who belongs to a nationally accredited scheme,” Romain said in a letter to the Guardian.
The Muslim Council of Britain also told the Guardian that it supports strengthening safeguards.
“Male circumcision is a lawful practice in the UK with recognised medical, religious and cultural foundations, and it should not be characterised in itself as child abuse,” said the group. “However, where procedures are carried out irresponsibly, without proper safeguards, and cause harm, they may rightly fall within the scope of criminal law.”
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Tulsa’s Jewish community pushes back on Oklahoma Jewish charter school proposal
(JTA) — Leaders of Tulsa’s Jewish community are publicly pushing back against a proposal to open a publicly funded Jewish charter school in Oklahoma, saying the plan was developed without meaningful local input and could destabilize existing Jewish institutions.
In a joint statement released this week, senior figures from Tulsa’s synagogues, Jewish day school and community organizations said they opposed efforts by an outside group to create what would become the only religious school in the country entirely funded by taxpayers — an arrangement whose constitutionality is contested.
“We are deeply concerned that an external Jewish organization would pursue such an initiative in Oklahoma without first engaging in meaningful consultation with the established Oklahoma Jewish community,” the statement said. “To bypass community consultation in favor of an externally driven initiative is a serious error.”
The statement was signed by leaders from across Tulsa’s Jewish community, including the executive director of the Mizel Jewish Community Day School, rabbis from two Tulsa synagogues, and the head of Jewish Tulsa, the local federation.
The response follows an application by the National Ben Gamla Jewish Charter School Foundation to open a statewide online charter school that would combine Oklahoma academic standards with daily Jewish religious instruction.
Ben Gamla was founded by former U.S. Rep. Peter Deutsch, who told the Oklahoma Statewide Charter School Board on Monday that many families in the state are looking for a religious education option.
“There are a lot of parents that are looking for a sort of a faith-based, rigorous academic program,” Deutsch said.
Tulsa Jewish leaders rejected that claim. In their statement, they said Oklahoma already has Jewish schools and synagogue programs and that they were never consulted about any unmet need.
“Our local boards, organizations and donors have invested heavily in our local Jewish educational system through a dedication to learning,” the statement said, citing the day school and other community programs.
The application also raises a larger legal issue that board members openly acknowledged.
At Monday’s meeting, board chairman Brian Shellem said there was an “elephant in the room” given the board’s recent approval of another religious charter school — the St. Isidore of Seville Catholic Virtual School — which was later ruled unconstitutional by the Oklahoma Supreme Court and left unresolved after a 4-4 split at the U.S. Supreme Court.
Ben Gamla’s lawyers say that split leaves the door open.
“The exclusion of religious charters based on faith violates [U.S.] Supreme Court precedents that ensure equal access to public education for everyone, regardless of religion,” Eric Baxter, a senior lawyer at Becket, the religious-liberty firm representing Ben Gamla, said in a statement.
Baxter said Peter Deutsch consulted with local rabbis and parents during visits to Oklahoma in 2023.
“Contrary to claims of no engagement, Peter Deutsch consulted with local rabbis and parents during exploratory visits in 2023,” Baxter said. “Far from bypassing the community, Peter’s proposal builds on those consultations to expand faith-based choices for families, and we urge the Board to assess it on its merits.”
When asked who specifically Deutsch consulted with and whether here has been any consultation since then, Becket did not provide details. Instead, a firm spokesperson accused local Jewish institutions of trying to block competition.
“Sometimes, institutions that see potential new competitors will attempt to keep those competitors out of the market for educational providers,” said Ryan Colby, a spokesperson for Becket. He added, “While the Jewish Federation is entitled to its own opinions, it does not speak for all Jews.”
Colby added that Deutsch has spoken with Jews who support the proposal and said he expects non-Jewish families would also enroll.
The Oklahoma Statewide Charter School Board is expected to vote on the application as early as soon as its next monthly meeting on Feb. 19.
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Travel disrupted, fears elevated as Israel weathers uncertainty over potential US strike on Iran
(JTA) — Several European carriers canceled flights to Tel Aviv on Wednesday as turmoil over a potential U.S. strike on Iran roiled the skies and elevated fears in Israel.
President Donald Trump has threatened for days to intervene in Iran if the government proceeds with plans to execute protesters who have staged weeks of demonstrations against the autocratic religious regime there. Thousands of protesters have been killed in the streets, according to both government and opposition sources, and Tehran had planned a first execution of a protester arrested during the demonstrations on Thursday.
That execution was postponed amid sharp pressure from the United States, as signs piled up that Trump may plan to go forward with a military option against Iran. U.S. planes have moved within the region, several countries including the United States have urged nonessential personnel to leave the region and Iran briefly closed its airspace on Wednesday night.
On Thursday, reports emerged that Gulf states had talked Trump out of an imminent attack. But the uncertainty — and the recollection that Trump had appeared to waffle before striking Iran last year — has escalated fears in Israel, which is the Islamic Republic of Iran’s sworn enemy.
Iran and Israel fought a deadly 12-day war last year. This time, Israel and Iran have reportedly exchanged assurances, via Russia, that they would not strike each other first, but Iranian officials have said they could attack Israel alongside U.S. targets if Trump strikes Iran.
Daily life in Israel has not been interrupted, but Israelis are on high alert for a potential rehash of last year, when Iranian missiles sent them running to safe rooms multiple times and killed dozens of people.
So far, Lufthansa canceled some flights, then announced that it would revamp its schedule to prevent its employees from being in Israel overnight, when any Iranian retaliation is seen as more likely. A flight from New York was delayed on Wednesday while its carrier reportedly changed its route, igniting fears that the tensions had moved into a new phase. And some travelers have opted not to press on with their Israel trips, fearing being stuck in the country if conditions deteriorate.
At the same time, Israelis and Jews around the world, including tens of thousands of Persian Jews who fled following the ascendance of the Islamic Republic in 1979, are rooting for the protesters and against the regime. The American Jewish Committee issued a statement late Wednesday in support of the protesters.
“The international community has a moral responsibility to act in solidarity with the Iranian people and to advance a safer region and a more peaceful Middle East,” the organization said.
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