The government of Israeli Prime Minister Benjamin Netanyahu is going ahead with legislation designed to weaken the country’s Supreme Court, a move that analysts are warning could lead to an erosion of democracy and a dramatic constitutional crisis.
A parliamentary committee approved parts of the legislation on Monday in a lightning-quick process that has triggered protests around the country. Leading jurists, economists, and retired security officials have spoken out against the legislation. But Netanyahu’s coalition, made up of far-right and religious parties, is hoping to finalize the reforms in the coming weeks and months.
To understand more about the legislation and the potential impact on Israel and the region, FP’s Dan Ephron spoke to Amir Tibon, a senior editor at the Israeli newspaper Haaretz. The discussion was broadcast on FP Live, the magazine’s forum for live journalism. FP subscribers can watch the complete interview at the top of this page. The following transcript of that conversation has been edited for clarity.
Dan Ephron: What is it about the Supreme Court that aggravates the right wing in Israel so much, and what about it aggravates Netanyahu specifically?
Amir Tibon: First of all, it’s important to differentiate between Netanyahu himself and members of his coalition because we can go back decades and pull from the archive videos of Prime Minister Netanyahu giving interviews in Hebrew and in English, saying how proud he is of the strength of the Israeli judicial system and the independence of the Supreme Court. Netanyahu really believed that the Supreme Court was an important institution in safeguarding Israeli democracy and promoting the liberal values of Israel that we Israelis are always proud of.
So, what has changed? There is now an unusual meeting of the personal interest of Benjamin Netanyahu and the ideological beliefs of some of his coalition partners. Netanyahu himself is currently standing trial in the Jerusalem District Court for bribery, fraud, and breach of trust. The trial has been ongoing for more than a year now, and obviously he has a strong personal interest to weaken the judicial system and to give politicians much more control over how judges in Israel are appointed.
The other aspect is that some of his coalition partners [the ultra-religious nationalists within the coalition], unlike Netanyahu himself, have held a long-standing belief that the Supreme Court, because of its role as a liberalizing force in Israeli society, is an enemy from their point of view.
Over the years, even when Netanyahu had coalitions with some of these religious parties, he always blocked initiatives that were meant to weaken the Supreme Court and the judicial system. He was always very, very clear that he’s a right-wing prime minister and he’s got these more nationalist views on some of the important issues that Israel is facing, but when it came to the Supreme Court, he didn’t want to touch it. Now that has changed, and I don’t want to ignore the elephant in the room—basically his own corruption trial—as a potential motivation for the change.
DE: In what ways would the new legislation weaken the Supreme Court?
AT: So, there are several elements. One element is what we call here in Israel an “override clause,” basically saying that the Knesset [Israel’s parliament] will have the ability to override decisions by the Supreme Court, specifically on issues of legislation. We don’t have a constitution here in Israel, but we have Basic Laws that are supposed to form the draft for a future constitution. And today, if the Supreme Court strikes down a law because it contradicts one of the Basic Laws of the state of Israel, the Knesset has to accept the ruling of the court. Once you introduce an override clause, that means the Knesset can tell the Supreme Court, “We’ve heard your view, and we are pushing along this legislation anyway, despite the court decision.” What the government is pushing through right now is the most extreme version of an override clause, basically stating that 61 members of the Knesset—the smallest possible majority—is enough to override any Supreme Court decision. To put so much power in the hands of the lawmakers is a big change.
Another element is limiting the Supreme Court’s ability to conduct judicial review in the first place. While the Knesset, under this proposal, will be able to strike down Supreme Court decisions with the smallest possible majority, the Supreme Court will have the ability to strike down legislation only if 80 percent of the justices support it, which is a very high bar. It becomes very clear that the ability of the Supreme Court to protect human rights and civil rights will be severely diminished.
One last aspect they want to [change is] the process of appointing judges in Israel, and here Netanyahu has a very good spin that he’s been using in interviews with the American media. He says, well, all we want to do is give the politicians the ability to appoint judges and Supreme Court justices, just like in America. But the difference is, in the United States, you have the U.S. Senate voting on nominees for the Supreme Court and other courts as well. The Senate very often is not controlled by the same party [sitting in] the White House. In Israel, we don’t have any of those layers of protection.
DE: I have read through the reforms, and it’s not clear to me how weakening the Supreme Court, changing its structure, would directly impact Netanyahu’s court case. Tell me about that.
AT: One thing the court has done that has attracted a lot of criticism, and I believe some of it justified, is what we call the reasonableness standard. Basically, the Supreme Court over the years has ruled in some important cases that governmental decisions or policies were unreasonable. The Supreme Court in Israel has widened this sometimes to the political arena as well. I think supporters of the judicial overhaul do have a valid criticism on this point that sometimes it’s been used too loosely and too freely. But if this judicial overhaul passes, and indeed they limit the court’s ability to use the reasonableness standard, Netanyahu’s government [could] then decide to fire Israel’s attorney general and appoint a new attorney general who is much friendlier to Netanyahu and will then decide to freeze the prosecution of the sitting prime minister and take another look at the evidence and put this trial on hold. If you take away [the reasonableness standard] clause from the Supreme Court, suddenly things look different.
Another interpretation is that Netanyahu wants to use this new structure as leverage for negotiating a better plea deal with the legal system for himself.
DE: How would legislation focused on the judicial system affect Israel’s economy?
AT: A very impressive list of Israel’s top economic experts have come out against this judicial plan. They’re making two arguments. Number one is that this will hurt Israel’s image as a member of the family of democratic countries, a phrase used by French President Emmanuel Macron when he met Netanyahu two weeks ago in Paris. He said this legislation pushes Israel away from the family of democracies and that being the only democracy in the Middle East is something that Israel has always used as part of its imaging and [that] also served its economic interests. Specifically, the high-tech industry enjoyed this image of Israel. They’re afraid that now it will be diminished. There’s also a fear that the government could make some dangerous and irresponsible economic decisions and nobody would be able to block them. This coalition also includes the ultra-Orthodox parties that have their own vision of what the Israeli economy should [look] like, and there’s a huge economic challenge for Israel of incorporating the ultra-Orthodox in the global modern economy.
There’s another element here. We’re seeing Israelis who have foreign bank accounts taking their money out of the banks [in Israel] right now because they’re afraid of the instability, because they’re afraid the country is sliding from democracy to autocracy.
DE: Many thousands of Israelis have demonstrated against the government each week since it was formed in maybe some of the biggest and most sustained protests in decades. But in my recollection, street protests in Israel don’t usually translate into actual change in policies or politics. What are the chances that the protests, or the petitions by economists and others, would have any real impact?
AT: The biggest achievement of this protest movement was when the president of Israel, Isaac Herzog, a ceremonial figure, gave a speech to the nation and said this reform is tearing apart the country. He said that while he understands why the Israeli right wing and the religious parties want to change the balance of power, and he sympathized with some of their arguments against the current powers of the Supreme Court, what they’re trying to do is too extreme and could lead to an erosion of democracy and hurt human and civil rights. He proposed to freeze the legislation and sit down and talk. He offered several frameworks for the discussion. If the president’s initiative fails, [things] could actually go in a very dangerous direction.
DE: In some ways, this debate in Israel about democracy means very little to Palestinians. They do not benefit from the democratic principles that govern Israel. Those principles are not extended to Palestinians in the West Bank. But Palestinians are affected by this new Israeli government. Cabinet ministers are calling for more aggressive measures against Palestinians. Some cabinet ministers are also talking about annexing the West Bank. How likely is it that Israel would move toward annexing the West Bank in the coming year?
AT: I find it hard to see that the government will formally annex settlements as long as [Joe] Biden is in the White House. If Israel didn’t get a green light for annexation under [former President Donald] Trump, obviously it’s not going to get one from Biden. Netanyahu is fighting on so many fronts domestically because of this judicial plan that a full-scale escalation on the Palestinian front, a war with Gaza, or a third intifada in the occupied territories would be disastrous. He is trying to calm down some of the far-right ministers in his government. And I’m sure that they’re hearing the words, “but Biden.” The question is, how long will they agree to hear those two words, and will he eventually lose the ability to block them? Because he relies on them to stay in power, and staying in power means a lot for him right now because of his own legal troubles. So it’s a very delicate and problematic situation.
DE: I want to look ahead to the coming days and weeks. We talked about the fact that the legislative process has already begun in Israel. It could last several weeks. If these laws do pass, it seems very likely that the Supreme Court would strike them down. Wouldn’t that create a real constitutional crisis? What happens next?
AT: That’s the vertigo scenario of Israeli democracy. If the Supreme Court strikes down this judicial overhaul, I’m not sure the government will accept it, and then we’re going into an unprecedented constitutional crisis here in Israel. This is why President Herzog is worried. This is why President Biden is worried, because what’s happening right now is a big deal.