Understanding Israel’s Debate Over Judicial Reform

The Debate
Power and the Public
Biden Stands with Critics
The Limits of Dissent
Supreme Court Decision-making
The Override Clause
Judicial Selection
“Reasonableness”
The Role of the Attorney General
The Question of Standing
What Will the Supreme Court Say?
The Court Hears the Arguments
Judicial Selection Committee Hearing
The Incapacitation Hearing
Time For a Constitution?

The Debate

The debate over reforming Israel’s judiciary has become one of the most contentious issues in Israel’s history, bringing hundreds of thousands of Israelis into the streets to protest (there have been a handful of large pro-reform protests) for several months, causing army reservists to suspend their service, and other segments of society to strike. Diaspora Jews have joined both sides of the debate while governments, particularly the United States, have weighed in on the opponents’ side.

The upheaval in the country has led bankers and economists to predict the Israeli economy will be damaged. People in the high-tech industry have talked about withdrawing investments and moving money elsewhere. Security officials are worried about damage to the cohesion of the military and the impact on national security at a time when Israel’s enemies are growing stronger and emboldened. Israelis now openly talk about emigrating.

The government under Prime Minister Benjamin Netanyahu believes the judiciary has grown too powerful and arrogated authority for itself without the public or Knesset voting for the changes and that it makes decisions that should be the prerogative of elected representatives. Netanyahu said, “What we’re doing is not weakening Israeli democracy; we’re strengthening it. We’re bringing it back in line to where most democracies are, where Israel was in its first five decades, and where it should be in the coming decades.”

Many critics agree reform is needed and suggested changes in the past, but now see those proposed by the Netanyahu government as swinging the pendulum too far in the direction of the government and weakening the only check on its power. Opponents assert the reforms will undermine Israeli democracy by giving the prime minister too much power and undermining the Supreme Court’s ability to protect human rights.

Reformers insist they only want to return to the judicial approach the Court followed for decades before changes introduced by Chief Justice Aharon Barak. Kontorovich also notes that “Israel has other checks, such as a proportional representation system that results in a large number of parties being needed to assemble a government…making every coalition unstable” and “elections happen on average every 2.5 years.”

Barak, whose legal approach is a focus of the reformers, argued that Justice Minister Yair Levin, architect of the judicial overhaul, “has assembled all the bad proposals… into a chain that is strangling Israeli democracy” that would turn Israel into a “hollow democracy” like Turkey, Poland, and Hungary. He insisted “the rights of everybody — Jew, Arab, ultra-Orthodox, not ultra-Orthodox — are in grave danger” and that “nobody will protect them” from the Knesset majority. “Your right to dignity, to freedom, to life,” he said, “will be gravely harmed — and there will no Court to turn to.”

Levin’s response asserted that Barak “does not understand the essence of democracy.”

Barak is not the only one to suggest Israel’s democracy is at risk, but even many critics believe this is hyperbole. For example, Natan Sharansky, a former minister in Netanyahu governments, opposes some reforms and the “brutal” way the government has pursued them but insists, “We will not stop being a democracy.”

Power and the Public

The debate is at least as much about power as the law, though neither will admit it. The long-frustrated right wing in Israel sees an opportunity to rebalance the scales between elected representatives and judges, which will reduce impediments to pursuing its agenda. For the center and left, the changes represent a threat to the Court upholding their positions.

The government believes the protestors are anarchists, supported and funded by radicals outside Israel and the Biden administration, primarily interested in bringing down the Netanyahu government. Opponents see the reform push designed to help Netanyahu stay out of jail (he is currently under indictment), to allow the religious parties to secure a permanent exemption for Orthodox Jews from the military, and the far right to ensure the Court doesn’t interfere with its settlement-building agenda.

Netanyahu is also in a predicament. He wants to stay in power, and his coalition partners have threatened to bring down the government if they don’t get what their voters want and what Netanyahu promised their parties to persuade them to join his coalition. These may be idle threats because those making them would have to give up the power that they may (in the case of the far-right parties) never regain. Netanyahu, however, has been unwilling to call their bluff.

Critics also argue that the government has no mandate to make what they consider extreme changes to the democracy given that it won the election by a scant 30,000 votes. They believe that decisions of this magnitude should only be made by reaching a broad consensus and have called for negotiations to achieve that goal.

Opponents also point to polls that indicate the public does not support the government’s reforms. For example, a survey by Israel Hayom, a right-wing Israeli newspaper that originally closely aligned with Netanyahu’s views but has become less supportive in recent years, found that 52% believe judicial reform weakens Israel, double the percentage who think it strengthens the country. Only 16% want the government to “legislate without an agreement” with the opposition. Only 18% supported the coalition pursuing its agenda unilaterally. A plurality (44%) preferred the government decide on reforms after “dialogue and broad consensus,” and 21% opposed the reforms altogether.

Despite the polls, reform supporters note that elections have consequences, and it is democratic for the winners to legislate as they see fit and fulfill their campaign promises to their constituents. They also maintain the proposed reforms will bring Israel closer to the norms accepted in other democracies. The government has engaged in negotiations under the auspices of President Isaac Herzog, but both sides have accused each other of bad faith.

Biden Stands with Critics

In what many see as extraordinary interference in Israel’s domestic affairs and an example of the Arabist view that “America has to save Israel from itself,” the Biden administration has joined the chorus of reform critics. President Biden said, “I’m very concerned, and I’m concerned that they get this straight. They cannot continue down this road.” Biden added, “Hopefully, the prime minister will act in a way that he can try to work out some genuine compromise. But that remains to be seen.”

Secretary of State Tony Blinken reinforced the administration’s message: "One thing that we know from our own experience as democracies is that when you’re looking to make big changes — major reforms — in your laws, your institutions, consensus is maybe the most important thing.”

Responding to the criticism, Netanyahu stated, “Israel is a sovereign country which makes its decisions by the will of its people and not based on pressures from abroad, including from the best of friends.”

It is not only Biden who has expressed concern about the judicial reform process. In addition to left-wing American Jewish organizations that routinely criticize the Israeli government, mainstream groups like the Anti-Defamation League, American Jewish Committee, and the Jewish Federations of North America have also expressed dismay at the failure to seek consensus for the reforms.

Even David Friedman, U.S. ambassador to Israel under President Donald Trump and a supporter of Netanyahu, criticized the decision to pass the law unilaterally.

The Limits of Dissent

The New York Times headlined a story about the 1995 protests against the Oslo Accords, “Israel Faces The Limits Of Dissent.” Today, Israelis are again facing the question of how far it is reasonable to go to protest policies one side believes threaten the nation. In the 1990s, the right saw the Oslo Accords endangering Israel’s security. It adopted much of the same rhetoric and methods to express its dissent as demonstrators against judicial reform today and was vilified by the Rabin government in much the same language as the Netanyahu coalition is castigating its critics.

Within the protest movement, one of the most controversial elements is members of the armed forces who have said they will suspend or refuse to perform their reserve duties. The government considers them insubordinate, but the protestors argue their commitment is to a democratic state that would cease to exist if the reforms are adopted. Some former senior security officials have backed their protest as a legitimate response to the government violating the social contract between the State and the military. Many reservists are volunteers who are not obligated to report and can be removed from their positions but not otherwise punished. The non-volunteers could face prosecution.

Polls of attitudes toward the reservists show the ideological fault lines in Israel. A July 2023 IDI survey found that 65% of left-wing voters (compared to 56% in a March survey) consider refusal to report for reserve duty legitimate, while only 9% of right-wing voters (compared to 17% in the previous poll) agree. In March, only 26% of left-wing voters and 6% of right-wing voters approved of refusal in emergencies. A July survey found that 63% of Israelis did not consider refusing reserve duty a legitimate form of protest.

Particularly alarming was the number of Israel’s elite Air Force corps who joined the protests. Meanwhile, the number of reservists fulfilling their duties is far more significant. For example, the press paid much attention to a petition signed by more than 1,000 Air Force members saying they would not go to the reserves. Air Force Commander Major General Tomer Bar subsequently said the number that announced their intention to terminate their service was 300.

Nevertheless, military and intelligence officials have been warning of the deleterious impact of the reservists’ protests. “The breach within the nation has penetrated deep into the IDF and defense establishment – a clear and major threat to the security of Israel,” warned Defense Minister Yoav Gallant in March before the protests escalated and reservists began coming out in greater numbers.

Top economists, including the governor of the Bank of Israel, have said the economy will be damaged if the reforms are pursued without a consensus. The shekel’s value fell, and the country’s credit rating has been downgraded by some services and threatened to be by others. Morgan Stanley downgraded Israel’s rating and warned of “increased uncertainty about the economic outlook.” S&P said the “controversy over judicial reforms will continue to harm the Israeli economy.” Similarly, Moody’s warned of “significant risk” from the turmoil.

Netanyahu has dismissed all the dire warnings about the end of democracy and threats to the economy and security as overblown. Supporters of reform also argue that the critics are harming the economy and the reservist protests national security.

The politics, protests, and emotions have obscured much of the reforms’ substance.

Supreme Court Decision-making

Moshe Koppel and Eugene Kontorovich argue the “Supreme Court is a law unto itself. Its unchecked power began in the early 1990s, when the Court’s president, Aharon Barak, announced that even in the absence of a constitution, the Court could invalidate legislation and block government actions with which it disagreed…Barak retroactively declared Israel’s Basic Laws to be a functional constitution and began striking down laws on that basis.”

In 1992, the Knesset adopted two new Basic Laws concerning human rights (Freedom of Occupation and Human Dignity and Freedom). According to the Knesset website:

In the years since the introduction of Barak’s legal theories, the Supreme Court has overturned 22 laws passed by the Knesset.

The government has proposed the following reforms to redress what it views as an imbalance of power between the branches of government in favor of the judiciary.

The Override Clause

The Supreme Court can strike down laws in a panel of three judges alone. The government initially wanted to pass legislation allowing the government to overrule any Supreme Court decision by a simple majority of 61 votes in the Knesset. Many, even within the coalition, viewed this as making it too easy for a government to ignore the Court. Higher numbers for an override were also discussed, but ultimately, Netanyahu decided, at least in the short-run, that this was not a fight he wanted to have.

The government still wants the entire 15-pearson Court to hear cases and to require a supermajority of 12 to agree to invalidate a law. Opponents object to making it so difficult.

Judicial Selection

Reformers see a problem in the homogeneity of the Court, which is reinforced by the way justices are selected. “Unlike the situation in almost every democratic country in the world, in Israel, sitting Supreme Court justices and representatives of the Bar Association—who have strong personal incentives to vote with the justices, and almost always do so in practice—constitute a majority of the committee that selects new judges on all Courts,” according to Koppel and Kontorovich. “This has resulted in a self-perpetuating clique, drawn largely from the country’s political left and social elite, that has final say over almost every policy decision in the country.”

Barak has said, “You need to remember that the Supreme Court is one family, even if there are different opinions. The good of the state requires a coherent Court, in which the relationship is one of family, with all the differences of opinions. You can’t bring somebody who isn’t family into the system.” For critics, that is a problem.

The Judicial Selection Committee currently consists of nine members (the Chief Justice and two additional Supreme Court justices, two representatives of the Bar Association, the Justice Minister and a government representative, and two members of the Knesset—including one from the opposition). The reform would replace the two Bar representatives with representatives from the Knesset.

The government modified its original position and agreed the Selection Committee would be expanded to 11 members:

• Three ministers.
• Three coalition Knesset members.
• Two opposition Knesset members.
• Three Supreme Court justices.

Appointing a Supreme Court justice currently requires a majority of seven out of nine members.

By tradition, not law, Chief Justices are selected according to the seniority system, whereby the most experienced judge serving when the Chief Justice retires is appointed. According to the proposed change, the Committee will choose the Chief Justice.

Another change would allow magistrate and district Court appointments to be made by the Chief Justices of those Courts instead of Supreme Court judges. For the selection of judges for the Employment Tribunal, the Chief Justice of the National Employment Tribunal will replace the Magistrate Chief Justice.

This issue has added urgency because two of the Court’s liberal justices, who refer to them as “activists,” are due to retire in October. Critics fear changing the composition of the selection committee will allow the government to pack the Court with conservatives who share what opponents contend is an illiberal judicial philosophy.

In June 2023, reformers wanted to change the composition of the Committee, giving the government the power to select both political appointees instead of allowing the opposition to choose one. Unexpectedly, four government members voted against the proposal in a secret ballot. The opposition subsequently chose its representative, Yesh Atid lawmaker Karine Elharrar. Later, the government selected Yitzhak Kroyzer, a lawmaker from the Otzma Yehudit Party.

Another proposal, meant to give the public a say in appointments, is to allow the Knesset to choose the first two Supreme Court appointments with a simple majority. The third judge will require the approval of one opposition representative, while the fourth and additional judges require the approval of one of the judges on the Committee. This is supposed to make the Court more ideologically balanced.

The division over the Committee’s composition spilled over to the election of the Bar Association’s delegate, where a reform opponent won in a landslide over a supporter. The government hoped to eliminate the Bar’s involvement because it supports the status quo.

Levin refused to convene the Committee, insisting that the law be first changed to give the government greater control over its composition. This has prevented the appointment of judges, prompting Supreme Court Chief Justice Esther Hayut to complain that the shortage of judges was damaging.

Critics of Levin petitioned the High Court, which agreed to determine whether Levin could be forced to let the Committee meet. The Israel Democracy Institute (IDI) explained that opponents of his proposed changes believe they “would provide the coalition government in power almost complete control over the selection of judges, politicizing all ranks of Israel’s judicial system.”

“Reasonableness”

The first issue to be legislated was designed to strip the Court of the power to veto government actions it regards as “unreasonable.” The Times of Israel explained:

Reformers argue that Courts in other countries have no such standard. They assert the Court’s role is to provide a remedy where the state acts illegally, without authorization, through illegitimate considerations or discriminatorily. It should not be allowed to use such an ambiguous basis to replace the judgment of other government bodies or elected officials.

Opponents argue that the government should only fear the reasonableness doctrine if it intends to act unreasonably. Moreover, the Court rarely used the principle – only 44 times in the prior decade. The infrequency was partly because it incentivized officials to act appropriately to avoid scrutiny by the Court.

Professor Avi Bell of Bar Ilan University’s Faculty of Law argues that this statistic is wrong because “the Court often strikes down action on the grounds of ‘unreasonableness’ without using that term.” It often does not have to issue a final rule at all because “the Court empowered legal advisors to veto policy decisions by elected officials (this is another of the Barak innovations targeted by reformers) and the legal fraternity (Court and its juniors) is, therefore, able to exercise control over policymaking before it even gets into Court.”

Bell notes some of the most controversial uses of the doctrine included:

• Evaluating appointments, including cabinet appointments.
• Overturning military decisions, including battlefield tactics and approval of specific operations.
• Canceling lawful policy decisions made by lame-duck governments (the Attorney General mentioned this as one of the most important uses of reasonableness in explaining her opposition to any change in the doctrinal status quo).
• Overruling broadcasting decisions by public television and radio.
• The judicial firing of elected mayors and cabinet members.
• Changing budgetary and security decisions of all kinds).

On July 24, 2023, the Knesset passed an amendment to a Basic Law: The Judiciary that bars the government from using the reasonableness doctrine in judicial review of the decisions of elected officials. The amendment says:

The vote was 64-0, with every member of the coalition voting for the bill and all opposition MKs walking out before the vote.

Finance Minister Bezalel Smotrich said: “After hard work and effort over many years, we are beginning to fix the justice system and returning the balances between the branches of government that were violated 30 years ago by [former High Court president] Aharon Barak.”

Opposition leader Yair Lapid said the bill’s passage was the beginning of the government’s “canceling the checks and balances, canceling the separation of powers, canceling the gatekeepers, canceling Israeli democracy’s entire immune system.”

According to the Jerusalem Post, one immediate outcome is that the High Court cannot use the reasonableness standard to force Levin to convene the Judicial Selection Committee. The Times of Israel noted that while the Court can no longer judge the nation’s highest office holders – the cabinet and its ministers – for their reasonableness, other elected officials, and all bureaucrats, are still subject to the test.

The Israel Hayom survey found that 54% of Israelis opposed the law canceling the reasonability standard, while just over one-third supported it. Excluding the respondents who didn’t express an opinion, 61% opposed the law.

The Role of the Attorney General

Reformers object to the Court rather than a legal statute, giving the Attorney General the authority to issue legally binding rulings on the government. The AG serves a six-year term and is not part of the elected government but controls the legal advisers within the government. All government decisions or proposed legislation require the legal advisors’ approval. The advisors examine whether the decision or proposal will stand in Court and whether they are balanced, and the advisors finally decide upon their fate. The AG represents the state before the Court but can argue against the government’s position.

The Attorney General, the government maintained, should be allowed to advise, not decide, and the government should be free to choose its legal positions and line of defense and representation in Court. Until the law barred the use of the reasonableness doctrine, the AG could rule on both the legality and “reasonableness” of laws and policies. Further, reformers objected to the AG making decisions based on whether they are “legally problematic” rather than expressly “illegal.”

Though the opposition views the law as neutering the AG, Bell says, “The new law specifically references only the authority of Courts, so any effect on the AG’s power is therefore indirect and not at all clear.”

The IDI highlights a related issue. “Today, they are civil servants appointed by tender and report to the Attorney General. Under the proposed overhaul, the legal advisors will become political appointees, subordinated to the ministers and potentially transformed into yes-men, diminishing their ability to perform their duty and defend the law.”

Critics also fear that the government wants the authority to fire the Attorney General and replace her with someone who will drop the various charges against Netanyahu.

The Question of Standing

Another issue reformers want to be addressed is determining who has the right to petition the Court. This is the question of standing, which in the United States requires that a petitioner/plaintiff demonstrate that a defendant/public authority’s actions have caused them direct harm. Elliott Abrams notes that standing “serves to prevent the judicial process from being used to usurp the powers of the political branches.”

According to Israeli law, the Supreme Court has broad authority to “discuss matters in which he deems it necessary to provide relief for the sake of justice.” Until the 1980s, the Court would only accept petitions from those who could prove their personal and unique interests were harmed.

This is another area in which Barak is seen as the culprit in radically changing the application of the law without any legal authority. He advanced the idea of a “public petitioner” who can challenge a law and trigger a judicial review of important issues. “I suggest that in some cases we expand the framework and allow the Court, at its discretion, to grant relief to a petitioner whose entire interest is in upholding the principle of the rule of law,” Barak argued. Otherwise, he said, “the Court will never grant relief, and the principle of the rule of law will be found to be impaired.” He added that the Court should only act this way “when the emerging problem is of a constitutional nature, such as the relationship between ordinary law and the Basic Law,” which would justify opening “the doors of the Court, without excessively examining the matter of interest.”

As with other “reforms,” the government maintains that it isn’t creating a new standard but seeking to return to a previously accepted one whereby the Court would reject petitions from those lacking standing. One objective is to prevent organizations that are not directly harmed from going to Court to block government initiatives, particularly in the security arena. Those groups, unsurprisingly, oppose the reforms.

What Will the Supreme Court Say?

Several parties critical of reform immediately petitioned the Supreme Court to suspend and, ultimately, invalidate the law, taking away its power to make decisions based on “reasonableness.” They argue that committee discussions were inadequate, that the Knesset was misusing its legislative authority by acting for political reasons, and that the legislation runs contrary to unarticulated “principles of the Israeli system.” Later, 38 Israeli rights organizations submitted a petition claiming the government’s action would limit human rights protection, undermine the rule of law, weaken the separation of powers, and subvert the Court’s moral integrity.

Explained one of the petitioners, “The reasonableness doctrine allows them to fight corruption, fight illegitimate appointments — it’s an extremely important tool.” Eliad Shraga added, “If they don’t strike this down, they might as well grab their keys and head home.”

The argument that the new law undermines the separation of powers and puts Israel’s democratic character in danger is at the heart of the protest movement and will be used in challenges to additional reforms sought by the government.

The counterargument, Bell explains, is that “the claimed adverse effects of limiting the scope of reasonableness review are unfounded and run contrary to Israel’s experience without reasonableness review of elected officials’ actions for its first four and a half decades. In any event, there is no statutory authority for the Court to invalidate an amendment to a Basic Law, nor any precedent for such an action.”

The Times of Israel acknowledges the Court has never struck down changes to a Basic Law – a move some compared to the U.S. Supreme Court striking down an amendment to the Constitution – but notes, “never has any Basic Law legislation caused such uproar and division within the public.”

Typically hearings are held before a subset of the Court; however, because of its significance, the Court announced the full panel of 15 justices would review the case on September 12, 2023. A simple majority of eight justices can decide the outcome.

As the New York Times’s Patrick Kingsley observed, “The Supreme Court may now, in essence, decide its own fate and choose between accepting Prime Minister Benjamin Netanyahu’s move to reduce its power – or reasserting its dominance by striking down the law.”

Reformers insist that Israeli democracy would be undermined if the Court invalidated the law, reinforcing their argument that it is acting without statutory authority and preventing the Knesset from checking its power. Critics say the opposite is true, that the government’s power will be unbridled without judicial review.

Opinions aside, Israel’s democracy could genuinely be in danger if the Court rules against the government and Netanyahu does not accept the decision. The military and civil servants would then have to decide whom to obey.

If the Court upholds the law, the crisis will not end, as the coalition plans to advance the other controversial reforms. Protests are likely to continue unless compromises are reached. If they are not, and new laws are enacted, the government and its constituent parts will again face the potential predicament of deciding whether to follow the Court’s ruling or the Knesset’s legislation.

Israel will not cease to be a democracy if the judiciary is reformed, but many believe it will have fewer protections than it has today.

Levin has said the Court would be “crossing every red line” if it struck down the legislation. “We would certainly not accept that,” he said. Other members of the coalition made similar remarks.

When asked if he would accept a Court decision against the reform, Netanyahu said, “We’ll go into uncharted territory, and I really would like to believe that they won’t do that. We’re all subject to the rule of law. The prime minister is subject to the rule of law. The Knesset, our parliament, is subject to the rule of law. The judges are subject to the law. Everybody is subject to the law.”

A subsequent statement from the Prime Minister’s Office meant to clarify his remarks seemed to muddle them. It said, “The governments of Israel always respect Court rulings,” adding, “The Court has always viewed itself as obligated by Basic Laws, to which it confers the status of a constitution. Like the majority of Israelis, the prime minister believes both principles must be maintained.”

Defense Minister Yoav Gallant’s response was equally unclear. “The State of Israel is a democratic nation of laws,” he said. “We will act according to the law.” Equally opaque was the reaction of Mossad director David Barnea, who declared, “If the situation becomes a constitutional crisis, I will stand on the right side.”

On the day the Court was to take up the case, Levin said the Court had no legal grounds for accepting the challenge. “Presidents and justices of the Supreme Court over the generations all agreed—the people is the sovereign, and its will is represented in Basic Laws legislated by the Knesset.” He added, “The Court, whose justices elect themselves behind closed doors and without a protocol, is placing itself above the government, above the Knesset, above the people and above the law....Until today, despite highly problematic judicial activism, there was at least one agreed basis—the Court respected Basic Laws.” 

Opposition leader Yair Lapid also issued a statement saying the amendment in question “isn’t a Basic Law and doesn’t even resemble a Basic Law....This is an irresponsible document that someone wrote ‘Basic Law’ on, and they have since demanded it be treated as holy writ.”

The Court Hears the Arguments

Petitioners and the government submitted affidavits; however, only eight petitioners against the law, representing an array of government watchdog and civil society organizations, and Eran Helman from the Attorney General’s office were allowed to present their case directly to the Court in oral arguments. Attorney Ilan Bombach represented the government, MK Simcha Rothman represented the Law, Constitution and Justice Committee of the Knesset, and Itzchak Barth represented the Knesset.

Court President Esther Hayut summarized the three arguments for challenging the law:

• It is a  “constitutional amendment that is not constitutional.”
• It “constitutes the abuse of [the Knesset’s] power.”
• The procedure for passing the law was flawed.

She also said, “We can’t nullify Basic Laws every other day. There needs to be a mortal blow to the basic tenets of the state as a democratic state.”

“What is the justification to take away the basic characteristic of the State of Israel as a democratic state, its free elections, the ability of the public to express its opinion, the ability of the public to change the laws that run their lives, the ability of the public to determine how the government is run?” Rothman asked. “If we make a mistake, we can correct it when we are made aware of it, and if we don’t — we can be replaced via the ballot box,” he added.

Helman replied, “If there is one thing that should frighten all of us, it’s when they come and tell us ‘trust us, we won’t harm the Basic Laws.’”

Bombach told the Court, “I was sure this would never happen, the possibility that the honored Court would for the first time ever intervene in a basic law, without a shred of authority.” 

He also challenged the idea that the Declaration of Independence did not allow the Knesset to adopt laws that erode Israel’s Jewish or democratic character. “Because 37 people were authorized to sign the hasty Declaration of Independence, which was still in draft stage until the last moment, this should obligate people who came later?” 

Bombach’s position received support from Justice David Mintz, who said, “By referring to the Declaration of Independence you are creating something out of nothing, there is no implied authority [from the Declaration of Independence].”

When Bombach argued that the law would not erode Israel’s democratic character, Justice Isaac Amit replied that historically, “democracy dies in a series of small steps.”

Bart argued that the Knesset “didn’t want to exempt the government from the obligation to act with reasonableness; it could have done that through a regular law, but instead it reduced the Court’s use of the judicial standard — while not eradicating the obligation to act with reasonableness.”

“Who ensures that [ministers] in fact act with reasonableness? You agree that there is a legal obligation, but say that there can be no judge [to enforce it],” Hayut responded.

Bart also admitted the legislative process was flawed but argued this was not sufficient grounds for overturning the law.

Nadav Weissman, arguing against the law on behalf of the Israeli Bar Association, said lawyers would be unable to enforce the law against the government, ministers, and the Prime Minister but Justice Yael Vilner responded that “Enforcement will still be possible, and there are many other tools… It’s not as if this will suddenly be an absolute chaos; there will be plenty of other mechanisms, and maybe nothing will change at all.”

In an exchange with Gilad Barnea, representing the Civil Democratic Movement, who argued for the need for a constitution, Justice Isaac Amit said, “The fact that we don’t yet have a complete constitution should not prevent us from expanding or refining the Court’s oversight.”

Responding to Rothman questioning whether the Court could judge the case without being biased, Justice Offer Grosskopf said: “This is the first time that the Knesset creates a situation where there’s a law, but there’s no judge.”

Similarly, Hayut asked, “Who will supervise that the government is indeed acting reasonably...? There is law, but no judge.”

Critics of the law presented a variety of arguments, including that it would affect the integrity of elections, weaken protection for human rights, and allow soldiers to be tried for war crimes by international tribunals.

Barth ended his presentation with a suggestion that instead of keeping or repealing the law, parliamentary review tools should be developed to replace the reasonableness standard.

In one of several telling remarks by the judges, Amit told Bombach, “The feeling on your part is this – we made a bad law, we know it's a bad law. Now we will offer you tricks to get around it.”

During the oral arguments, a Likud spokesperson said, “If the Court can annul foundational laws, it effectively assumes sovereignty over the people. This extreme step undermines the core of democracy.”

Only one day was allowed for oral arguments, and the discussion continued late into the night for a total of more than 13 hours.

The Court had no deadline for making a ruling. Also, in a peculiarity of Israeli law, only those judges hearing the case may be part of the decision. Thus, if the decision is not made before two justices are scheduled to retire in October, they will still have a vote on the case; new justices will not.

Following a leak to the media about the Court deciding the case in favor of the petitioners, the decision was released on January 1, 2024, invalidating the law. By an 8-7 vote, the Court said the government could not restrict its ability to make judgments based on reasonableness. The decision was controversial both for the outcome and its timing. Supporters of reform noted this was the first time the Court had invalidated a Basic Law. They also argued the Court should not have made a decision during the war with Hamas as it threatened the unity of the nation that followed the October 7, 2023, Hamas massacre of Israelis. The Court addressed the first issue, with 13 of the 15 justices agreeing that the Court has the authority to strike down Basic Laws. 

Critics were also upset that the decision was not delayed until Hayut was no longer eligible to participate in the deliberations. Hayut, who had been skeptical of the legality of the legislation, wrote in the decision that the law was “extreme and irregular” and “departs from the foundational authorities of the Knesset, and therefore it must be struck down.”

Opponents of the reform were happy with the outcome, but it was not immediately clear if the government would accept the decision and precipitate a constitutional crisis.

Judicial Selection Committee Hearing

The Court was scheduled in November 2023 to hear petitions demanding that Justice Minister Levin convene the Judicial Selection Committee in its current format. The hearing was canceled after Levin announced he planned to convene the committee within 15 days. The Court said Levin must provide an update by November 23, by which time the committee should have been convened if the justice minister makes good on his promise. The Court said it would reschedule the hearing “if necessary.”

The Incapacitation Hearing

At the end of September 2023, 11 members of the Court heard two petitions against the incapacitation amendment to Basic Law: Government, which was adopted by the government because Netanyahu and his supporters were afraid the Court had too much discretion over when incapacitation could be declared and by whom, and that the Court or Attorney General might be used against him on the grounds that his own ongoing indictment renders him incapacitated. It gave the prime minister the authority to declare incapacitation with ratification by two-thirds of the members of the Knesset House Committee or three-quarters of the members of the government. It also specified that incapacity would only apply to physical or mental issues and not criminal ones.

Petitioners argue that Netanyahu should not be allowed to make changes in the judicial system that could affect his trials. They also contend that he violated an agreement he signed saying he would not be involved in the appointment of judges or changes to the judicial system while under indictment.

The Attorney General suggested deferring the amendment’s implementation until the next Knesset so as not to be relevant specifically to Netanyahu. The government objected to that idea. Netanyahu’s lawyer argued that this would potentially allow the judiciary to force the prime minister to recuse himself, which he described as “a cancellation of the election results.”

Barth, again representing the Knesset, conceded that the amendment had been adopted to shield Netanyahu but argued that its purpose mattered more than its intent and that Netanyahu did not seek shielding for personal reasons but rather to protect the office of prime minister.

Justice Ofer Grosskopf argued, “The motives can affect the purpose. The purpose of the law was to revoke the possibility of ordering a prime minister to recuse himself due to violating a conflict of interest agreement, which is relevant to the current situation.”

As with the reasonableness case, the Court was asked to take the unprecedented step of nullifying a Basic Law. On January 3, 2024, the Court ruled the Incapacitation Law would only apply starting in the next Knesset term. The 6-5 vote did not make a determination as to the grounds for declaring a prime minister incapacitated or whether the conflict of interest agreement that Netanyahu signed could be enforced. 

The majority found the law was an abuse of power because it was drafted for the benefit of a single individual, the sitting prime minister. The legislation, the Court said, “was designed to serve a clearly personal purpose – advancing the personal interests of the prime minister and the removal of the legal restraints that had applied to him, in light of the ongoing criminal proceeding against him.”

Together with the decision on reasonableness, the decision was seen as a second blow to the government’s reform efforts and a victory for those accusing Netanyahu of attempting a “judicial coup.”

Time For a Constitution?

Some analysts attribute the problems related to the judiciary to Israel’s failure to adopt a constitution. This is an issue that dates to the founding of the state but has been given new impetus by the divisions over judicial reforms. Many draft constitutions have been written, and some suggest the time has come for a convention to hash out a consensus document as the Americans did in 1776.

As in the past, however, religious parties are an obstacle. They believe Israel has a constitution that comes from God – the Torah. There is no compromise on that position. David Ben-Gurion needed Orthodox support to unify the Jewish people behind the establishment of Israel and believed there were more urgent issues on the agenda. He was also critical of the idea of a constitution because he thought Israel had unique issues and that the motivations for other countries to adopt such documents did not apply.

“In a country such as ours, imagine for yourselves that the nation wants something, and seven people designated with the rank of judge cancel something that the nation wants!” Ben-Gurion said. “This, in our country, would lead to revolution. For the people would say: we will do what we want.” Ultimately, he opposed drafting a constitution that would “delegate authority to the Court to decide whether the laws are kosher or not kosher.”

Despite Ben-Gurion’s view, Leo Kohn, the secretary of the political department of the Jewish Agency, was tasked with writing a constitution in December 1947. He drafted three proposals, the last in October 1948; however, the constitution was never completed. Others were drafted over the years, but none were seriously considered or voted on by the Knesset.

The schism in Israeli society suggests to some that the time has come to codify the law. Still, the deep divisions in society, which are not restricted to those between religious and secular Israelis, have prevented agreement on a constitution in the past and are likely to remain an impediment for the foreseeable future.

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