Rosner’s Domain— A Legal Counter-Revolution

In Israel, 2023 started with a bang: A new government in a rush to reform our legal system—they say strengthening it, but their opponents say weakening it. One way or the other, what Justice Minister Yariv Levin has in mind is not a tweak; it is a foundational change. It is also the main first act of the new ruling coalition, and it signals that this coalition plans to be bold, and controversial. 

Why is this a revolutionary reform? Here is one example: Minister Levin wants politicians, not justices, to have the final word on who joins the Supreme Court. To Americans this might sound reasonable. But for Israel it is a huge change — from a court controlled from within, by established professionals who are resistant to outsiders and to critics, to a politicized court. Levin and his supporters argue that since the Supreme Court makes decisions that are ideological in nature, it ought to be more in line with the values of the majority. His opponents argue that politicizing the court will mean the removal of the only barrier that prevents a tyranny of the majority. 

To understand this highly significant move by the government, one must go back to the ’90s, when the Knesset passed two Basic Laws that the court interpreted as a mandate to restrict government actions. Some saw it, at the time, as a welcome flexing of judicial muscles; others believed it was an unwelcome and undemocratic move by a condescending, elitist court. The ’90s marked the beginning of a battle, and today we see its result. Thirty years ago, the court grabbed too much power, and now the politicians wish to grab it back, and then some.

It is a revolution and a counterrevolution, each striving to prove that since “the others” went far, we can go farther.

That’s the main problem. Not the wish to reform the system, not the wish to somewhat tame the court. It is the “then some” result of how pendulums swing in a political system. Rather than slowing down, they tend to swing further away. If you swung leftward, we would swing rightward. If you swung 10 inches, we would swing 20 inches. Some might say this is how the presidency of Barack Obama gave birth to the presidency of Donald Trump. Some might say this is how an Israeli government in which an Islamist Party was a member gave birth to an Israeli government of hardcore rightists and religionists. It is a revolution and a counterrevolution, each striving to prove that since “the others” went too far, we can go further.

The result is a sense of triumphalism on one side, that of the coalition, and a sense of despair on the other side, that of the opposition. The Supreme Court is the holy grail of secular Israelis. It is their most sacred institution. One might suspect that this is one of the reasons for the coalition to make it a target. You disrespect our rabbis, we are going to disrespect yours. And yet, beyond psychological motivations, there is also a serious debate about the way Israel ought to be governed. 

For some reason, right-wing politicians (and some on the left) had convinced themselves that the court, and the professional legal establishment, is the main obstacle standing between Israel and its desired policies. That’s nonsense — the legal system is more a convenient excuse for inaction than its real cause. Then again, this is what some politicians and many of their followers believe. And they intend to test their theory. There is a majority in parliament supporting it, and there is a majority among those who voted for this government supporting it. Now all we must do is decide what is this “it.”

Up until now, the tendency of both camps in Israel is to argue in generalities. Either you accept the need for a restructure, or you reject it. But in truth, that’s not how things work. A restructure can be limited or more expanded; it can include three main features, or twenty; it can be tweaked to remedy some of the opposition’s concerns or pass without any such consideration. And that’s the crucial stage that Israel must begin. The one of moving from bold plans and radical visions, to negotiating and finetuning toward a final outcome. 

It could be an embarrassment. It could be a disaster. It could also be a welcome change of a somewhat unreceptive establishment. To make it so, both coalition and opposition must have good will, and a sense of restrained responsibility. If I’m worried, it is because such sentiment is not easily detected.

Something I wrote in Hebrew

It’s another day, and another coalition demands to stop all work on infrastructure on Shabbat. Here’s what I wrote: 

The character of Shabbat in Israel does not yet have an agreed upon form, and is the subject of endless controversy. Yitzhak Rabin landed planes on a Friday afternoon in the 1970s, causing a political crisis. Ehud Barak moved an electric device on Shabbat and caused a political crisis. Benjamin Netanyahu is not interested in a political crisis. So he does not insist on work that offends his coalition partners. But he offends the majority of Israelis! Well, if that is the case, if there’s an offended majority, then where was it on Election Day?

A week’s numbers

If you’re searching for more differences between Jewish Israelis and Jewish Americans, take a look at the following graph, from a survey by themadad.com.

A reader’s response:

Elana Schmidt writes: “For some of us the new government that we see in Israel is intolerable.” My response: Yes, democracy could become an annoyance. 

Shmuel Rosner is senior political editor. For more analysis of Israeli and international politics, visit Rosner’s Domain at jewishjournal.com/rosnersdomain.