Having successfully overturned the supreme court’s “reasonableness” doctrine, Israel’s right-wing Knesset coalition now advances to the next round in its plan to re-write—and re-right—the rules of judicial authority in the Jewish state.
Opposition members having walked out, Israel’s Knesset passed legislation last week by a 64-0 vote to eliminate “reasonableness” as a ground for the supreme court to overturn legislative and executive actions. A full range of Israelis, including members of the Israeli Defense Force (IDF), former heads of Israel’s intelligence and military services, the financial and tech communities and most secular Israelis, vigorously opposed the move. The initiative has sparked massive protest marches and demonstrations throughout the country since the beginning of this year, including perhaps the largest, on July 24, the day the Knesset vote took place.
Opponents of this latest law have vowed to continue their fight to blunt the action. The bill, ironically, has been submitted to the supreme court for judicial review. The court, which decided early this week to hear the case, will face the awkward legal conundrum of ruling on a piece of legislation that limits its own authority—a classic battle royale involving a supreme court’s power of judicial review if there ever was one. Think Israel’s version of America’s historic 1803 case, Marbury v. Madison.
That won’t be the end of it, however. Benjamin Netanyahu’s ruling coalition consists of an alliance between the traditionally conservative Likud party and an assortment of extremist fruits and nuts from Israel’s far-right, ultranationalist, Jewish supremacist, ultra-Orthodox and anti-Arab parties. They have opposed several rulings of the supreme court, including those that struck down the government’s efforts to annex West Bank territory and required Haredi Jews to serve in the IDF.
Having failed repeatedly to reverse the court’s decisions on these and other matters, the coalition has borrowed a page from the American Republican party. When you can’t win playing by the rules, change the rules. Only, the rules they intend to change form the bedrock of Israel’s democracy: the checks and balances of the court against excessive power by the executive or legislature, which in Israel are virtually the same thing; Israel’s unicameral, parliamentary democracy means the majority coalition of the Knesset names the prime minister, the head of government. (Israel’s presidency is largely ceremonial.)
More anti-democratic moves on the docket
Notwithstanding the upcoming supreme court referral, the coalition plans two additional measures to circumscribe the court’s authority. One would change the way justices are chosen, placing the appointment of new justices under the control of the Knesset. Currently, a Judicial Selection Committee nominates judges for the Israeli president to confirm. The committee is comprised of three court justices (including the chief justice), two Knesset members, two cabinet members (including the attorney general) and three members of Israel’s bar association. The coalition’s stated reason is to place more friendly, i.e., more right-wing, judges on the court.
The other proposed “reform” measure would allow the Knesset to strike down a supreme court ruling by a simple majority. That plan would appear to fly in the face of a core principle of most democracies, which is separation of powers. But it would give the ruling coalition the power they have long sought to move Israel in the direction of a purely sectarian state where religious law and practices would effectively trump secular law. Additionally, it would allow for effectively unlimited land confiscation in the West Bank, if not outright annexation.
The Knesset will adjourn until October, and the prime minister has promised to hold off further judicial changes until November, setting the stage for a judicial and political donnybrook before the end of the year. Opponents have vowed an all-out effort to block further changes and even to turn back the first Knesset bill. Current polling suggests that more than half of Israelis oppose the reform measures and would prefer unity. Were an election held today, Netanyahu’s party would likely fall to second place.
This explains why this coalition will tenaciously clench onto power—the prime minister more than anyone. It is improbable, given everything we’ve seen to date, that this right-wing coalition will back down. For most of the parties except Likud, this might be their last chance to forge an ultra-religious state from the Mediterranean to the Jordan. For Netanyahu, it is the only way he can remain prime minister, since even his own Likud party increasingly recognizes that he is dragging the party and the state into a political dead end.
Enter the Americans
The US may try to exert some indirect influence to turn this effort around and help its ally avoid driving into the political ditch. While we don’t know the actual purpose of National Security Advisor Jake Sullivan’s trip to Saudi Arabia last week, one plausible reason may likely have been to further coax Saudi officials and Crown Prince Mohammed bin Salman in the direction of recognizing the State of Israel and establishing formal diplomatic relations.
The caveats to such an eventuality in the near term are so many as to make the possibility remote. But one major Saudi condition would unquestionably be an ironclad, in-writing and binding commitment from Israel to forever forsake annexation of West Bank territory, absent an explicit agreement with the Palestinians. This, of course, would stick in the throats of Netanyahu’s anti-Arab, pro-annexation, ultra-nationalist coalition members like an oversized date pit. For Netanyahu, however, the prize of Saudi recognition would earn him a permanent place in Israel’s history (though I suspect that he already has, for other reasons).
Another Saudi condition would be a US-Saudi mutual security pact like those with NATO, Japan or Israel. This would have no chance of passing in the US Congress, where the Saudis enjoy little favor these days. Moreover, the chance that President Biden would even consider putting such an issue before Congress in an election year is close to zero. Nevertheless, the ineluctable lure of Saudi-Israeli recognition persists enticingly.
The future State of Israel
What is at stake in all of these measures is nothing less than the future of Israel. It has traditionally defined itself as Jewish (which isn’t in question) and democratic. Implementation of the planned measures and their likely fallout would cast Israel’s democratic status in serious doubt. That weighs heavily on the minds of the majority of Israelis and, it would seem, on the minds of its closest and most vital ally, the United States.
These events reflect a growing disparity between the visions of two broad groupings in the Israeli body politic, the secularists and the non-secularists, or religionists. To date, Israel has largely been a secular society, which most Israelis, recognizing their diversity, seem to prefer. But that vision places limits on what the religionists see as Israel’s true biblical and historical legacy: a Jewish state from sea to river. There may be room for some of the religionists’ vision in a secularly-ruled state, but there is no room for a secularist’s vision in a religiously ruled state. And certainly no room for Arab Israelis or Palestinians.
The issues, therefore, are both historic and existential. Were a visionary at the helm of Israel’s ship of state, one could have hope. But Benjamin Netanyahu is no visionary. In fact, he’s behaving much like a self-serving, power-hungry autocrat who seems to have lost all capacity for reflection. His lack of vision and increasing lack of leadership in curbing the reckless ideological passions of his coalition are leading Israel’s vaunted democracy into grave danger.
But it isn’t too late. There is adequate opportunity for Netanyahu to display genuine leadership, for example by steering his country and the Knesset to genuine consensus on judicial reforms. Many wonder, however, whether he has either the capacity or the will.
The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.
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