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  • USIEA Team

Judicial Reform

Updated: Apr 5, 2023


Israel Update - Week of March 26, 2023


Judicial Reform: For the past three months, the State of Israel has been in a period of great contention. The country has been battered with mass protests, wildcat strikes, and refusals to report for reserve duty. Israelis have begun openly discussing the potential for civil war. The source of the turmoil is Judicial Reform. While every respectable media outlet in the world has reported on both the issue and the ensuing turmoil in varying levels of detail, I recommend this article by Evelyn Gordon for a comprehensive and extremely fair overview. I will briefly present the facts followed by an insight that, while not making the news, I sincerely believe lies at the core of the issue.


Israel does not have a written constitution. What it does have is a “Proclamation of Independence” along with a number of “Basic Laws” that broadly define the operation of the government and operates as well as certain rights that its citizens are ensured. Writing a constitution acceptable to a majority of its citizens is no trivial task due to a number of factors such as:

1) the Jewish character of the state,

2) its being in a state of war essentially since the day of its creation, and

3) its absorption of more than fifteen times its original population in less than seventy-five years. Various organizations have taken a stab at it over the years, but no meaningful progress has been made.


So how does the Israeli government operate?

Similar to the United States, Israel has a tripartite system of checks and balances consisting of a Legislative Branch, known as the Knesset, an Executive Branch consisting of a set of twenty-five or so ministers, and a Judicial Branch, consisting of the Supreme Court. A key difference between the Israeli system and the American system is that most members of the Israeli executive branch are also members of the legislative branch.


One of the platforms that Benjamin (Bibi) Netanyahu’s Likkud Party ran upon during the last election cycle was “Judicial Reform.” Israel’s political right feels that over the past thirty years, the Supreme Court has become overly powerful and that it has interfered in the government’s ability to legislate. An unstated gripe was that the court rulings were overly progressive and were prejudiced against the politically and religiously conservative. After putting together a coalition of 64 seats, quite a strong coalition in Israeli terms, the Likkud felt that the time was right for change.


To address these issues, the coalition, led by Yariv Levin from the Likkud, the Justice Minister and by Simcha Rothman from the Religious Zionist Party, Chairman of the Knesset’s Constitution, Law and Justice Committee, proposed a set of sweeping changes. Depending on which side of the political spectrum a person hails from, these changes are referred to as either “reform” or “revolution.” Broadly speaking, the proposed changes include:

  1. Modifying the makeup of the panel for judicial selection to include more representation from the government. Currently, the panel’s nine members include three sitting judges and two members of the Israeli Bar Association, essentially enabling the sitting judges to perpetuate their own world views.

  2. Limiting the scope of judicial review of governmental and administrative decisions by legislating against the doctrine of “reasonableness.” Today, the court can repeal a law if it determines that the law is “unreasonable” as determined by an enlightened society. The problem is that given the dramatically diverse population in Israel, the definition of “enlightened society” is subject to vociferous debate. In the words of David Weinberg, “’Reasonableness’ is a term that runs like a computer virus through the High Court’s decisions over the past two decades. It is authoritarian jargon which allows High Court justices to elastically apply their own sensibilities; to socially re-engineer Israeli society. In their enlightened image, of course.”

  3. Passing an “Override Clause” that enables a simple majority in the Knesset to pass a law that was repealed by the Supreme Court.

Judicial reform has set off a firestorm. For the past thirteen weeks, demonstrations have been held all around the country with steadily increasing numbers and steadily increasing violence. Protest has spilled over to the army. A group of fifty pilots wrote a letter to the Head of the Joint Chiefs of Staff stating that they would no longer report for reserve duty as Israel was no longer “their country.”


Last Tuesday, things came to a head when Bibi fired Yoav Galant, his Minister of Defense, after Galant recommended that the legislation be halted, at least temporarily. After Galant was fired, the largest union in Israel, the Histadrut, called a general strike, essentially shutting down the country. Bibi addressed the nation that evening and informed us that the legislation would be frozen until May, giving time for the politicians to discuss, to negotiate, and to move ahead slowly. Negotiations are being led by Israel’s President Isaac Herzog, who, two weeks ago, floated compromise legislation of his own that was soundly rebuffed by both sides. Truth be told, the coalition was running at breakneck speed to pass the legislation, and they had lost the pulse of the country. A time-out needed to be called.


Everything that I have stated so far can be found in the flavor of your choice on almost any media outlet. But here is something that they won’t tell you: If you show me a picture of an Israeli and describe his background in one short sentence, I can tell you with extremely high confidence whether he is for or against judicial reform. Two things that I noticed alerted me to this filtering capability: The first indication came after I looked at a bird’s-eye picture of one of the first anti-government demonstrations and I noticed that there was not one yarmulke (cap worn in public by Orthodox Jewish men) in the entire picture.


The second thing I noticed was that ninety percent of the people in my department at RAFAEL support the demonstrations and many of them regularly attend them. These are the same people that threatened to leave the country each time that Bibi has won an election. And so, without overly generalizing, my experience has been that the people who support judicial reform are typically religious and/or of Sephardic (Middle East and North African) descent while those who most actively oppose the reform are typically not religious, of Ashkenazic (European) descent, and are college educated. This division rolls back history by nearly fifty years. For the first twenty-nine years of Israel’s existence, the country was owned and operated by David Ben Gurion and the Ashkenazic Mapai Party. Sephardim were overtly treated as second class citizens. The religious were a small minority, kept at bay by continued government funding of their institutions. The ultra-orthodox did not even vote.


The rise to power of Menachem Begin and the Likkud Party in 1977 changed the game. While Begin was born in Brisk, Lithuania, he was the representative of Israeli Sephardic Jewry. He deplored their treatment by the Mapai, and he demanded their integration into Israeli society. Begin was the first overtly Jewish Prime Minister, frequently quoting the Bible and refusing to work or to attend official functions on the Shabbat. When he won the 1977 elections, it was nothing less than revolutionary. The Likkud has been in power since 1977, other than a few years here and there. The country has steadily drifted to the right, both politically and religiously. The last stronghold of the Ashkenazic elite remaining in Israel today is the Supreme Court, and they are fighting tooth and nail to retain that stronghold. The tumult in Israel today is residual fallout from the 1977 elections. Scars that we all thought had long been healed are being reopened, dividing, or perhaps redeviding Israeli society into two camps. The Air Force pilots, most of which still hail from the old Ashkenazic elite (although this is steadily changing), are refusing to fly while the technicians, who are more often than not Sephardic, are refusing to load bombs onto their aircraft. Let the pilots figure it out for themselves, they say.


Israel has never experienced more than seventy five years of unity.

In the First Temple period, seventy four years after King David was appointed, Rehoboam and Jeroboam split the kingdom into Judea and Israel. In the Second Temple Period, after seventy four years of Hasmonean rule, two brothers, Aristoblus and Hyrkanos, contested the throne. Aristoblus invited the Romans to referee and one hundred years later, the temple lay in ruins. Modern Israel is also seventy four years old. The only way we will make it past seventy five is if Israelis internalize that this is the only country we have and that if we, Heaven forbid, lose it, it could spell the end of the Jewish People.


Wishing you a quiet week,

Ari Sacher


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3 Comments


Janis Copeland McWilliams
Janis Copeland McWilliams
Apr 06, 2023

Thank you, Ari, for this concise explanation of the current state of affairs and the big picture perspective from recent history. Very helpful.

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garycyndeewatts
Apr 06, 2023

Very incisive and educational. This struggle is obviously between the political right and left. Thanks for adding the fascinating history of the problem.

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tom.skarnas
Apr 06, 2023

Thanks for such a concise explanation. I did follow the link to Evelyn Gordons very detailed and looooong article, which was very helpful as well.

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