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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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Israeli-American soldier Moshe Katz, killed in Lebanon rocket strike, laid to rest on Mt. Herzl
(JTA) — Hundreds gathered on Sunday night at Israel’s military cemetery on Mt. Herzl for the funeral of Moshe Yitzchak Hacohen Katz, an American-born Israeli soldier who was killed by a rocket strike on Saturday in southern Lebanon.
Katz, 22, from New Haven, Connecticut, is the fifth Israeli soldier killed in Lebanon since Hezbollah, an Iranian proxy in Lebanon, resumed attacks on Israel following a 2024 ceasefire, after Israeli and U.S. strikes on Iran last month.
“With unspeakable tragedy I regret to inform you that my 22 year old son Moshe Yitzchak a*h a sergeant in the idf, fell in battle in Lebanon,” Katz’s father, Mendy, wrote in a post on Facebook on Saturday. “My oldest Son with a zest for life and jokes. Burial is tomorrow in israel. Maybe we only share good news. My heart is shattered and the wound is real.”
Mendy Katz had been in Israel when the war began and posted on March 7 about witnessing his son’s graduation from basic training with the Israel Defense Forces before returning to the United States via Egypt.
During the funeral on Sunday, Katz, who was posthumously promoted from corporal to sergeant and was affiliated with Chabad, was eulogized by a host of fellow soldiers who referred to him as a “true friend” who “always used to make sure that anyone around him was always taken care of.”
“Moshe was a brave soldier, we have proof of that, but more than that, he was a loyal friend, he was a hard-working son and a loving, caring brother,” Adina, Katz’s sister, said between tears during her eulogy. “Moshe’s body might be gone, but his legacy is not. He was a proud soldier and a proud Jew, and we are the proudest family.”
Israeli Prime Minister Benjamin Netanyahu offered condolences to Katz’s family in a post on X and wished a speedy recovery to three other soldiers moderately wounded in the attack.
“Moshe z”l immigrated to the land from the United States, enlisted in the Paratroopers Brigade, and fought bravely for the defense of our homeland,” Netanyahu wrote. “On behalf of all Israeli citizens, we embrace Moshe z”l’s family in this difficult hour and wish a swift and complete recovery to our fighters who were wounded in that incident.”
On Sunday, Netanyahu announced that he had instructed the Israeli military to further expand its operations in Lebanon in order to “finally thwart the threat of invasion and to push the anti-tank missile fire away from our border.”
Menachem Geisinsky, a photographer and friend of Katz’s, also eulogized him in a post on Facebook, writing that he “forever will be my hero” for “his bravery in coming all the way from New Haven, Connecticut to fight for what he believed was right and also for being a man who wouldn’t tolerate a frown.”
“So be like Moshe. Be a hero. Make someone’s day. Make someone giggle or smile,” wrote Geisinsky. “Step up, and be the man Moshe was, and forever will be remembered as.”
Katz is survived by his parents, Mendy and Devorah Katz; siblings Adina, Yehuda, Shua and Dubi; and grandparents.
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A second poll of US Jews finds the same result: Most oppose the war in Iran
(JTA) — For the second time in a day, a nonpartisan poll has found that most American Jews oppose the U.S. military campaign against Iran — even as 90% of them say they oppose the Iranian regime.
The new poll, conducted by GBAO Strategies on behalf of the liberal pro-Israel lobby J Street, found that 60% of U.S. Jews say they oppose “the US military action against Iran.”
About the same proportion, 63%, said they believed “the most effective way to address U.S. and Israeli concerns about Iran’s nuclear program and destabilizing regional actions is through diplomacy and sanctions,” not military action.
And the majority of American Jews said they believed the war will not improve Israel’s security, with a third saying they believe the war will weaken Israel’s security.
As with the previous poll released earlier on Monday, the poll found a sharp partisan and denominational split in the results, with Republicans and Orthodox Jews more likely to support the war, which the United States and Israel jointly launched on Feb. 28.
A press release from J Street touted the survey as “the first methodologically sound poll of Jewish American opinion since the conflict began,” positioning the results as an antidote to findings from the Jewish People Policy Institute, which surveys “connected” U.S. Jews and has found that a majority of them support the war, even though the proportion has fallen since the war’s start.
“This data is a wake-up call for anyone claiming to speak for the American Jewish community while beating the drums of war,” J Street President Jeremy Ben-Ami said in a statement. “Most American Jews see this war for what it is: A reckless, unforced error by a President who has no clear, achievable goals or an exit strategy. This poll proves that the ‘pro-Israel’ position is the pro-peace position – and that means stopping this war before more lives are lost.”
The survey of 800 Jewish registered voters was conducted March 24 to 26 and has a margin of error of 3.5 percentage points.
The J Street survey also asked respondents about other issues related to Israel. It found that 70% of U.S. Jewish voters said they are more sympathetic to the Israelis than the Palestinians in the Israeli-Palestinian conflict, compared to multiple polls finding an even split or slight edge for the Palestinians among Americans overall.
It also found that 70% of American Jews oppose unconditional military and financial assistance to Israel — reflecting a mounting political consensus that is at odds with the priorities of AIPAC, the traditional pro-Israel lobby.
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Their sons survived the battlefield but not their wounds. Now these Israeli mothers mourn together.
(JTA) — TEL AVIV — On the morning she left Jerusalem for a health retreat for bereaved mothers, Taly Drori was surprised to recognize another woman in her rideshare. More than two years earlier, they had often crossed paths in the intensive care unit of the same hospital, where their sons were being treated in neighboring rooms.
The woman was Hazel Brief, the mother of Yona, an American-Israeli soldier who was seriously wounded at Kibbutz Kfar Aza in the opening hours of the Oct. 7 attack. Drori’s son, Chanan, also a soldier, was severely injured in Gaza in December of that year.
Both women spent long nights watching their sons fight to graduate from intensive care into rehabilitation, a milestone neither reached. Consumed by their sons’ care, they barely spoke. When they passed each other in the ICU hallway of Sheba Medical Center, Brief said, it was often just “a nod and a look in the eyes, to say, I got you. I get you.”
After two months, Chanan died from a fungal infection. A year later, Yona followed.
The retreat, held in the Gilboa region in northern Israel, offered a different kind of rehabilitation, Brief said, a “sacred space” where hallway nods gave way to a shared language of grief, as mothers try to rebuild themselves.
The gathering was part of a new initiative by OneFamily, an Israeli nonprofit that supports families of terror victims and fallen soldiers. Its impact is so significant that founder Chantal Belzberg was awarded the Israel Prize for Lifetime Achievement last week, the highest civilian honor awarded by the Israeli government — at a time when more Israelis are unfortunately joining its constituency.
“I am moved not because of myself, but because of the people for whom OneFamily was created: bereaved parents, widows, orphans, bereaved siblings, double orphans, and the wounded, with visible and invisible wounds,” Belzberg said in a statement. “This prize is, first and foremost, recognition of them. It is an embrace for the thousands of families who continue to carry this country, even when their hearts are broken.”
Belzberg’s daughter, Michal Belzberg-Slovin, is a yoga instructor who embraced Drori’s suggestion for a weekly health-and-wellness circle for bereaved mothers, centered on movement, mindfulness and nutrition. During the current war, meetings are taking place in a bomb shelter. But before it began, Belzberg-Slovin led 10 weeks of Wednesday sessions before the group traveled north together.
The program draws more than a dozen women, ranging from their early 40s to late 70s, all bereaved mothers of soldiers except one whose son was killed at the Nova music festival. It was originally intended for mothers bereaved in the current war, but the flyer OneFamily circulated omitted that detail. As a result, several mothers who had lost sons years earlier joined the circle as well. Belzberg-Slovin called it a happy accident, saying their presence was “very strengthening and healing,” and that it offered newer members a glimpse of how life can reshape itself around loss over time.
After Chanan’s death, Drori said she felt grief register physically before she could process it emotionally. “My life energy was draining away from me,” she said. She described chest spasms, sleeplessness and difficulty concentrating. At one point, she struggled even to stand upright. “I felt like I was made of lead.”
The next summer, she and her husband Roni spent several weeks at a health retreat on a kibbutz in northern Israel, a change of scenery that coincided with the war with Iran. The days were structured around nature walks, breathing exercises, yoga and simple, clean meals.
“The place slowly brought us back to life,” she said. That experience, she said, convinced her that bereavement requires deliberate physical care as well as emotional support, because “grief and trauma are stored in the body.”
Drori took the experience and pitched it to OneFamily as a half-day program to fit into the routines of women juggling work, family and mourning. Belzberg-Slovin bought into the idea immediately.
“This is my language,” she said, describing years of yoga, reflexology and aromatherapy.
Belzberg-Slovin had grown up around OneFamily, which her parents founded in 2001 after the Sbarro pizzeria bombing in Jerusalem, inspired by her decision as a bat mitzvah-age girl to forgo a party and redirect the money to victims and their families.
The Wednesday circles became even more of a family affair when her husband, Nadav, stepped in to cook the group’s vegan meal.
While not bereaved herself, Belzberg-Slovin said her own uneven path into adulthood has made her attuned to other people’s pain. She recalled a childhood in which terror victims and their families were always in her home, and a young adulthood marked by hurdles, including an eating disorder, cycling though career paths and remaining single long after most of her peers were married.
“I’m not one of them but something in my upbringing gave me the sensitivity to be fully with them in this process,” she said of the women in her circle.
Yoga and OneFamily, she said, were the two constants. “OneFamily has always been my identity. I always went back to it,” she said. Now, married with two children and a third on the way, she said she finally feels she is arriving on her own terms. “Now I’m bringing my new self into OneFamily which is special for me.”
The circle incorporates trauma-sensitive yoga, adapting an approach often used with survivors of sexual abuse and other trauma. The emphasis, Belzberg-Slovin said, is not on achieving a pose but on slowing down and respecting where the body is holding. A second yoga teacher, who is also a licensed therapist, facilitates the group discussion afterward.
She described one participant who shared that she found it hard to enter a supermarket because she saw reminders of her son everywhere. “How do you get from yoga poses to speaking about grocery shopping? But that’s what happens,” Belzberg-Slovin said. “We bring up everything the body raises.”
One of the veteran bereaved mothers on the retreat was Ruhama Davino, whose son was killed nearly 12 years ago during the 2014 conflict in Gaza. Davino said she kept her relationship with OneFamily at arm’s length, speaking by phone but repeatedly declining invitations to attend programs. “Every time they called, I said no,” she said. “I wanted to stay far from the bereavement and just continue my life.”
She doesn’t know what made her finally show up to the Wednesday health circle after so many years, but she left the first time without any doubt that she would be back, she said. “It’s powerful to be there, to be part of it, to draw strength.” Being in a room with mothers newly bereaved, alongside others who have lived with loss for years, changed her mind. “In the end, each of us needs this for the body and the soul,” she said.
Before the war, Chanan Drori had been studying biotechnology at Hadassah College and was preparing to begin his final research project in a medical research lab. After his death, the lab launched a research track in his name focused on infectious fungi, the complication that ultimately killed him.
“Chanan dreamed of helping people for whom no cure existed,” Drori said. “He dreamed of developing those medicines, so we felt like the best way to commemorate him was by realizing his dream.”
Chanan was treated at Sheba by Dafna Yahav, the head of its infectious diseases unit, who also treated Yona. Brief credited Yahav with pushing to bring in experimental drugs from overseas and said she never approached the family as a case first. “With all her accolades and running departments and being a world renowned expert, she’s an incredible human before being an incredible doctor,” Brief said. “She always responded first as a mom talking to another mom.”
Although the timelines were different — Yona was hospitalized for 417 days and Chanan for two months — Brief said the two mothers shared a form of loss that is hard to explain even to families of other soldiers who receive their news in an instant, with a knock at the door.
The similarities didn’t end there. Both men had volunteered to serve. Chanan did not meet criteria for a combat role, and Yona was exempt after he was wounded by an exploding pipe bomb months before Oct. 7. Both men loved music. OneFamily helped bring a piano for Yona, who played piano and guitar, into the hospital.
Both men and their families believed they would survive. Despite sustaining 13 bullet wounds and enduring repeated complications during his hospitalization, Brief said she expected Yona to “make it.”
Three weeks before Chanan died, doctors woke him from a medically induced coma and the family brought musicians to play at his bedside, including Yagel Harush, a singer he loved. The family invited Harush back to sing at the celebration they expected to hold after Chanan’s recovery, and at his wedding to his fiancée, Rivka.
“He was supposed to live,” Drori said.
Instead, this winter, two weeks after Drori returned from the north, Harush performed at a memorial event for the second anniversary of Chanan’s death.
When Drori met Brief again at the retreat, the two women posed for a photo to send to Yahav. Brief said she didn’t want to describe the retreat as “nice” or “comforting,” because nothing offers real consolation — “there’s no nechama,” she said, using the Hebrew word for solace. But OneFamily, she said, offered something she struggled to find elsewhere.
“You so often feel abnormal in society and here all of a sudden you feel normal,” she said. “Here’s another mom that knows what it’s like to see her son in intensive care for an extended period of time. I can’t share that with many people.”
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