The Knesset’s passage of legislation yesterday to curtail the authority of Israel’s Supreme Court marks a new era for the state of Israel. The disjuncture comes not because of the legal implications alone, although they are substantial. Nor because of the economic, diplomatic, and security damage wrought in the short time since Prime Minister Benjamin Netanyahu returned to office, although it is considerable. Rather, the new era begins because of the damage that proceeding with the bill has done to Israeli society itself.
In March, the governing coalition led by Netanyahu paused in its effort to overhaul judicial review. Instead, it turned to administrative review—the Court’s authority to overturn actions taken by the executive branch—limiting the ability of the Court to set aside acts it deems “unreasonable.”
The reasonableness doctrine, as Amichai Cohen and Yuval Shani of the Israel Democracy Institute explained in Lawfare, provided grounds for striking down a decision where the Court found a conflict of interest, a procedural impropriety, or an act that exceeded the government’s legal authority. The Court could also rule on substantive grounds, finding that the government had acted in a discriminatory manner, taken into account irrelevant considerations, or adopted “patently unreasonable” decisions.
Both judicial and administrative review are powers broadly shared by courts in most democracies, but the reasonableness doctrine can be interpreted expansively. Many in Israel’s political opposition would have been open to a good-faith, consensus-based approach to constitutional reform, including the reasonableness doctrine. But that does not describe the Netanyahu coalition’s effort. The legislation passed yesterday was openly touted as just the first element in a sweeping plan to curtail nearly all checks on government power in Israel, which is already expansive.
Netanyahu, usually a cautious leader, has done more to fracture Israeli society in seven months than any prime minister before him, widening and exposing the deep gulf between his supporters and his opponents. The result has been an unprecedented political drama playing out in Israeli streets, as leaders of business and industry, academia, the medical establishment, labor unions, etc. protest his agenda.
Most notably, large numbers of military reservists have announced their intention to stop volunteering—which is not the same as refusing orders to serve, something no one has suggested. The volunteers include hundreds of servicemen in the air force, which relies on the reserves. As my Brookings Institution colleague Amos Harel wrote in Haaretz, the potential damage to military readiness is serious, and the Lebanese Hezbollah, among others, sees an opportunity.
Although there is no threat of the military disobeying civilian orders, or even a call for it to do so, individual military service has long been seen as an apolitical act in a country with ostensibly universal conscription, and a military with widely diverse political opinions. The government’s supporters view the protest of the reservists as a betrayal of the common Israeli code; its opponents view it as a sign that the Netanyahu government is tearing apart that code. Refusing to defend the state is a doomsday weapon, but a large segment of Israeli society believes it faces a democratic doomsday.
Ironically, the best explanation of the current situation came from Bezalel Smotrich, the far-right minister of finance and member of the security cabinet. Back in March, in response to a terrorist attack against an Israeli settlement, violent youth from those settlements rampaged through the Palestinian town of Huwara—an outburst that the Israeli general in charge called a pogrom. Smotrich condemned the vigilante violence in an interview, but said that the Palestinian town should be “wiped out” by the state instead.
During the ensuing uproar, Smotrich was approached by a friend, an Israeli-air-force pilot, who, Smotrich said, enlightened him about the damage his words had done. In an apology of sorts, Smotrich expressed his shock that he had been understood to have meant precisely what he indeed said. He did, however, spell out what had horrified so many in the military. Once a fringe far-right activist, Smotrich had become a senior cabinet minister, in a country where the cabinet is the collective commander in chief of the military. Pilots and others in the military are handed immense firepower, Smotrich’s friend explained, and they rely on the political leadership and state institutions to issue only morally defensible orders. Given the extreme positions taken by members of the Netanyahu cabinet, and its energetic efforts to limit all checks on its authority, military personnel were left to guess whether a senior cabinet minister was actually planning to order them to commit a war crime. That situation, for many, became untenable.
More broadly, many in Israel sense a breakdown of the social contract. If Israel is not fully democratic, then the state—which holds together a remarkably diverse Jewish population—can come undone. For Israel’s Arab citizens, the struggle to find their place in Israeli society has been all the more difficult, but their economic, social, and political gains in recent years are also threatened as judicial limits to the rule of a political majority that usually excludes them are removed.
Netanyahu supporters also sense a crisis. They see the breadth and strength of the protests against the reforms, and the refusal of reservists to volunteer, as efforts to subvert majority rule. They won the last election, they feel, and now the opposition is using extra-electoral means to prevent their preferred policies from being enacted. At their own protests, they have embraced the slogan “Second-class citizen,” a complaint that their votes count for less and their electoral mandates are regarded as illegitimate. Netanyahu supporters, on average, come from lower socioeconomic strata of society, and feel that established elites are fighting to retain their hold on the country in the face of demographic trends that favor Netanyahu’s coalition.
Ignoring the views of the large minority that supports the government would be a mistake, yet there are two major flaws in its narrative. The first is that Netanyahu’s government is not just pursuing a set of controversial policies but seeking to implement constitutional change. Securing a slender majority in an election should not suffice to make sweeping changes to a country’s constitution. Israeli law grants a small or temporary majority the same constitutional power as a broad coalition, and allows swift constitutional changes, but it should still seek consensus and exercise self-restraint, not just as a matter of fairness but to safeguard the integrity of the polity.
Second, Netanyahu and many of his supporters have confused majoritarianism with democracy. These are not the same thing. As I wrote in February, democracy is the rule of the people, the demos, all of it, including the minority. Democracy is not a license for the majority to do as it wishes, with no guardrails.
Netanyahu supporters often claim that they have no tyrannical intentions. In private and in public, they greet any suggestion that they might abuse human or civil rights indignantly. Israel, however, also happens to control much of the lives of Palestinians in the West Bank, for whom this argument rings hollow. They have seen otherwise. And although the current checks on executive action have had only a limited effect within the West Bank, there is a reason the ideological elements of the settler movement are so keen on the judicial overhaul. Without any checks, things could be far worse.
Moreover, good intentions are not enough in constitutional arrangements. Institutions, constraints, and the rule of law are also essential. Israel doesn’t need good intentions; it requires the messiness of real democracy.