Israelis are in the streets! I have been so deep into developing Season 7 on Israeli history these past few weeks that I’ve been actively ignoring writing anything about Israel after the year 1977, which is where this next season ends.  But current events have a way of pushing through even the most concentrated mind, especially when they combine the trifecta of Jew Oughta Know-ness: a history of how we got here, big-picture questions, and action-packed events. 

The headlines right now are ubiquitous: this is the end of Israel’s democracy. The 75 year-long experiment in Jewish democracy that began in 1948 has proven a failure. Hundreds of thousands of Israelis are marching in the street, facing down a fanatical right-wing government that is gleefully throwing their protests back in their face. Religious fundamentalism has taken over. The Palestinians are doomed. Any remaining moral standing Israel has in the community of decent nations is being thrown out the window.

What is happening? A controversial proposal to reform Israel’s judicial system is right now working its way through the Knesset, Israel’s parliament. 

The media is never happier then when it gets to condemn Israel’s moral standing, which is a whole other topic. And here’s the part — also very Jew Oughta Know — where I tell you to ignore the headlines, let’s not panic, let’s take a sober look at what’s happening, there is a rational reason for everything.

But here’s the thing: this time, I’m kinda one of the people panicking. Okay, “panicking” is a little hyperbolic but I really do think this is a watershed moment in Israeli history and things are not looking good. We have a very dangerous situation situation that could permanently divide Israel’s society. The levers of tension that already exist are being pushed to a breaking point. And for Israel, a small country that depends so much on society’s solidarity and cohesion, this could have devastating consequences. I think the threat to democracy is very, very real, and very, very urgent. The headlines aren’t entirely wrong. 

On the other hand, don’t panic! Israel’s democracy is, at least at this moment, in great shape. And I believe that Israelis are capable of solving this crisis. There is still a collective solidarity to the country that you don’t often find in other places these days. I also believe that every Jew in the world has a stake in the success and permanence of Israel as a Jewish democratic state. Which is why, although I am usually reluctant to arrogate for myself the position of telling Israelis what to do, in this particular case, I am expressing my alarm. 

But of course, this is Jew Oughta Know, and there are very rational, historical reasons how we got here. Today we’ll take a look at the history of how we got here, what is happening right now, and a little analysis of what it all means. Let’s get into it. I’m your host, Jason Harris, and this is Jew Oughta Know.

The historical context

So let’s dive into the history of how we got here. We have two factors which heavily influence what is happening today. The first is that Israel does not have a constitution. Israel’s Declaration of Independence in May of 1948, declared that Israel would have a constitution by October of 1948. It never happened. The politicians could never agree on a final draft, there was disagreement about whether the document should rest on secular or Jewish religious principles, and Prime Minister David Ben Gurion thought the country had more urgent problems to deal with. Other countries, he said, live without constitutions, like the United Kingdom, so it’s not essential.

Instead what happened is that the Knesset enacted a series of laws called Basic Laws. They deal with the kinds of things you find in constitutions, such as the structure of the government and various individual rights. There’s 13 of them, the most recent was in 2018. The Basic Laws have traditionally acted as a sort-of constitution for Israel but not a formal one: because they were passed as ordinary laws by the majority of the Knesset, they weren’t considered supreme except in a few specific cases. That is, a later Knesset could come along and pass laws that override those Basic Laws.

So that’s the first factor: no constitution, but a series of Basic Laws that kinda-sorta act like a constitution.

The second factor is that Israel has a weak system of checks and balances. The United States, in contrast, has a very strong one: three branches of government with almost no overlap, all with multiple places to slow up or stop legislation. This is important because you need a democracy to have two things: majority rule and the protection of minority rights. You need a system where the majority can get its way, but also where there are constraints that prevent it from doing harm to the minority. 

Israel sort of has three branches but in effect there are really only two: a combined Legislative-Executive Branch, and a separate Judicial branch. That’s because members of the Knesset also serve as members of the Executive, such as Minister of Justice or Minister of Education, and it’s very fluid — they can move back and forth. Not so with the Judiciary, where you cannot be both a Member of the Knesset and a Supreme Court Justice.

So you combine these two things — no constitution that tells you how the country is to be governed, and a limited checks-and-balances system — and what you have is a situation where there isn’t much to stop majority rule and protect minority rights. In other words, the Supreme Court historically had a limited ability to strike down laws as unconstitutional because there was not a constitution to be violated. But then something very interesting happened.

The constitutional revolution of 1995

The thing that happened was the quietest judicial revolution ever heard of. In 1992 the Knesset passed two Basic Laws, both about human rights. And for three years they sat amongst the other Basic Laws and everything hummed along as usual. But then in 1995, Israel’s Chief Justice, Aharon Barak, ruled in a case that those two laws — and therefore all the Basic Laws — actually acted together to form a constitution. Meaning that those 11 laws — which are now 13 — were now supreme over all other laws, none of which could contradict the Basic Laws. But gets to decide what’s a contradiction? The Supreme Court. 

What you got in 1995, was a retroactive constitutional revolution decreed by the Supreme Court. All of a sudden the Court declared “Heyyyyyy Israel, we have a constitution!” and gave itself the power to now strike down any new laws that contradicted any of the basic laws. It was a major power grab, a huge change in Israel’s democracy, and — here’s the crazy part — because it was done in a ruling in a particular case by the Chief Justice, most Israelis weren’t even aware that this revolution had just happened. The Knesset didn’t get the chance to debate anything because they had passed these two laws three years ago already, and had no idea that the laws they were passing were going to become supreme constitutional laws. In other words, no one gave the Supreme Court this new power, the Court just declared it and started chopping down laws it didn’t like.

Depending on your viewpoint, this constitutional revolution — this power grab by the Supreme Court — could be either good or bad. It provided a system for the guarantee of individual, civil, and equal rights, an essential feature of democracy. It replaced the historically weak check-and-balance on Israel’s government with a strong one. According to Professors Amichai Cohen and Yuval Shany, the Court has struck down only 22 laws since 1992, but the effect has been much more far-reaching. They argue that laws are now drafted with a close eye on whether they would survive a challenge in the Court, which means that the Judicial Branch has now considerable influence over the Legislative one. 

The problem, though, is that the Basic Laws don’t cover everything. There was also no public deliberation on whether those laws should stand as a constitution, and the Knesset didn’t pass them with any special process to ensure that they would be debated with the stature of a constitutional law. They were passed like a regular law and then — whoa — turns out nope! They are much more important than that. And this was all happening under the radar. Not so much intentionally in secret, just that Israelis were focused on other things and it wasn’t getting a lot of attention except amongst the legal subcultures that hang around the Court and think about such matters.

But then you get into politics. The Israeli philosopher Micah Goodman talks about how this constitutional revolution developed into a narrative on the right-wing. The narrative was that at a time in the mid-1990s when the right-wing was ascendent, was winning more elections, the Supreme Court was aligned with the left and kept the new right-wing majorities in the Knesset from passing the laws they wanted. That is, there was a huge shift in power in politics from the Knesset to the Court. Therefore the Court was not reflective of, and actually working against, the majority of the people, since it was striking down legislation that was passed by the democratically elected representatives of that majority. In other words, says Micah Goodman, the left was losing elections but still winning at politics because they had the left-leaning Supreme Court on their side. And so for twenty years the Israeli right, and especially the religious right, has been getting angrier and angrier at the Supreme Court. What we’re faced with now, says Goodman, is the counter-revolution. 

Now, here’s the thing: they’re not entirely wrong. Most Israelis recognize that the Supreme Court’s constitutional revolution unfairly swung the balance of power too far in the Court’s favor. Polls suggest that most Israelis — on the right, center, and center-left but not the far left — favor some amount of judicial reform that would create a better balance between the Knesset and the Court. 

So why, then, are Israelis in the streets protesting the current proposed judicial reform legislation? Three reasons: they don’t like what’s in it, they don’t like who’s doing it, and they don’t like how it’s being done. Maybe if it was just one of those things there wouldn’t be so much panic. But all three? Israelis feel like their democracy is under attack as never before in Israel’s 75 years. 

The current judicial reform package

The package being put forth by the Knesset’s right-wing majority would make a number of changes to the judiciary, but there are two in particular that are driving the controversy. The first is known as the “override clause.” This would allow a simple majority of the Knesset to override any decision by the Supreme Court. 61 votes out of 120 total. But Israel is governed by a coalition government which, by definition, must have 61 votes in order to govern. That means that whichever coalition is in power will also have the power to override the Supreme Court. They wouldn’t need to include any other parties to get to, say, a 2/3 requirement, or 3/4 requirement. Just the basic majority that they already have.

The second big change is the way that Supreme Court justices are chosen. There are currently 15 justices. New ones are selected by a committee of 9 people: 3 sitting Supreme Court justices, two cabinet ministers, two Knesset members, and two representatives of the Israeli Bar Association. So out of those 9 people, you have 4 politicians and 5 professionals, which helps to ensure the Court’s independence from political interference. The proposed changes remove the two Bar Association representatives and replace them with two more politicians from the coalition government. What you would have, then, is three members from the Cabinet, three members from the Knesset, and three members from the Supreme Court. So now instead of a minority of 4 politicians, you have a majority of 6 politicians from the majority coalition, although one of the Knesset members would have to be a member of the opposition. The coalition would still command a 5-4 lead. 

So constitutional counter-revolution indeed, as now you would have a situation where the politicians from the majority pick the Supreme Court justices, who they can also overrule whenever they want. If Aharon Barak swung power too far in the Court's direction, now the concern is that power is swinging too far back the other way. The Knesset is moving to end the independence of the court in order to remove any obstacles to majority rule and government power.

So you might be wondering, okay, but what's the “so what” here? How would this cause actual problems, you know, everyone screaming that this is the end of Israeli democracy? Micah Goodman, the Israeli philosopher, lays out the nightmare scenario, which I’ve started to hear in other places as well. Let’s say this judicial reform bill passes and the current Supreme Court overrules it as being unconstitutional — as being against the Basic Laws. So now you have a situation where Micah Goodman says the Supreme Court is living in one universe, where it can cancel decisions of the Knesset, and the Knesset is living in another universe, where it can cancel decisions of the Court. 

Now, says Micah Goodman, let’s say Israel sends a bunch of soldiers into the West Bank to dismantle an illegally-built Palestinian settlement. The Palestinians sue, it goes to the Supreme Court, and the Court tells the government that they actually can’t dismantle that settlement, it’s on private Palestinian land. And this, by the way, does happen — it was one of the rulings the Court made after its constitutional revolution.

But now in this scenario the Knesset overrides that Court decision and tells the army to dismantle the Palestinian settlement. The Court says “you can’t do that,” the Knesset says, “yes we can.” Now you’re the Israeli army’s chief of staff and you have to make a decision about which branch of government to obey. This has never happened before in Israeli history. No matter which choice the army commander makes, he is going to first of all be making a political choice, which is a terrible position for the army to be in. And second it’s going to be a constitutional crisis that has never been seen before, because either the Knesset or the Supreme Court are going to tell him he can’t do that. 

So now you end up in a situation where no one body has authority and Israel’s democracy is torn apart in a constitutional breakdown. That’s why even though you have a majority of Israelis who think the judiciary should be reformed, you also have them protesting this legislation that could create this scenario. And it’s not just the text — they are also upset about who is doing the reforming, and how.

The reaction to the legislation: is democracy doomed? Or are we fine?

Prime Minister Benjamin Netanyahu, currently on trial for corruption and openly antagonistic to the court, is leading a government of extremists who were the only ones who would support his bid for power. He’s got convicted criminals for ministers, nationalist extremists who advocate violence against Arabs, coalition partners who want to use the power of the Israeli police to intimidate Arab Israelis, and religious fundamentalists who are adamant that Israel become a country exclusively for Jews to the exclusion of other minorities. Is this everyone in his government? No, but it’s the extremists who put him back in the Prime Minister’s house and thus command inordinate power. You can see how even Israelis who think the judiciary needs some changes don’t think these are the legitimate people to do it. 

All the while Netanyahu, master politician, does what he does best lately, which is to provoke division and hatred in Israeli society in order to score political points and keep himself in power. Yes, he has a long history of being a cautious, small-c conservative with a track-record of loyalty to the democratic process and the will of the people. But that Netanyahu has been missing. He has lost sight of any gap between the national interest and his own as he demonstrates a willingness to do anything to stay in power, no matter how much it undermines Israeli society. 

The danger here isn’t that this all starts and stops with an overhaul of the judicial system by a band of extremists and criminals. It’s how that overhaul will allow them to remake the country in the direction they say they want: less democratic, less protection of minority rights, more antagonistic towards Arabs, and more extreme in its application of Jewish law. These changes aren’t being debated and discussed but railroaded through the Knesset’s political process. Even Israel’s president, Isaac Herzog, is asking the government to slow down, but they won’t. This is their moment.

But it’s also the moment for the Israeli people. Hundreds of thousands have been turning out all over the country, night after night, from all walks of life. Even the religious right have been staging protests, which is surprising since, on the surface, they would seem to gain the most from the present government. But many of them also don’t like how far the reform goes and don’t like the process of the people pushing the reforms. But what they especially don’t like is the wedge that’s being driven between them and their fellow Jews. The historian Daniel Gordis posted an ad for the right-wing protest that said, amongst other things, “We are brothers. Dialogue now. We say NO to civil war. Because the unity of the people and land is paramount. We’re in favor of improving the legal system, not destroying it.”

So you’re getting a huge cross section of Israeli society. It’s incredible, Israel hasn’t seen sustained protests of this nature in decades — maybe ever.

And therein lies some hope and optimism. Israel’s system of government — without a constitution and, for the last 30 years, with an overly-powerful Supreme Court — has nevertheless survived 75 years through one existential crisis after another. Their democratic system was imperfect, and at times maybe they muddled through without the guide of a constitution, but it worked, and it worked very well. There’s a reason Israel is the only true democracy in the Middle East. 

The historian Gil Troy writes that Israel’s democratic culture is bottom-up, not top down, and therefore incredibly vibrant, steady, progressive and resilient. Israelis have a strong sense of solidarity. Israelis are united under threat from their enemies — frequent terrorist attacks while Iran looms over the horizon determined to build a nuclear weapon. Troy points out that, unlike in the United States, the coronavirus pandemic wasn’t used to stoke political division or undermine social cohesion, but instead found the national medical establishment treating everyone equally. 20% of Israeli doctors are Arabs, 25% of nurses are Arabs, and about half of Israel’s pharmacists are Arabs — people who suddenly became highly visible and desperately essential. Israel has a very strong sense of family, community, and tradition: Jews, Muslims, secular, and religious alike celebrate their respective rituals and holidays, making for a strong emphasis on family and community belonging — factors which, Troy writes, make for “a sense of loyalty, proportion, commitment, self-sacrifice, and love.” Yes, Israel’s politics has been in chaos but they’ve held 5 elections in the last 4 years with 70% voter turnout and none of the losers have been screaming about voter fraud or storming the Knesset building. At root, writes Gil Troy, is the Jewish value of b’tselem elohim — “in God’s image” — “that treats all humans as equal, deserving the inherent dignity and rights every democracy must protect.” This is the Israel I see every time I visit, most recently this past November just after the election. 

And that’s why this current crisis is, I think, uniquely dangerous. Because it has the potential to undermine all of this. We can just look around the world to see the state of societies living under illiberal governments. Still, I also think Gil Troy is right. I think Israel’s democratic instincts and national solidarity ought to be enough to withstand anything their extreme government can throw at it. There is a way forward to reform the elements of democracy that need to be reformed without wrecking the body politic in the process. It requires that which all democracies require, with an extra dose of Jewish wisdom: mutual respect and understanding, dialogue and debate, a commitment to humanistic values, compromise, and a collective sense of shared fate. 

The legislation is right now being debated in the Knesset, and Netanyahu’s coalition, or Netanyahu himself, are the only ones who can stop it since they command the majority.

We’ll see what happens.

Keep a lookout for Season 7 on Israeli history from 1967-1977, starting up soon. You can find me at jewoughtaknow.com and my email is jewoughtaknowpodcast@gmail.com. Talk to you soon, l’hitra’ot — see you later.

© Jason Harris 2023