Israel’s Supreme Court reform crisis

You can still find the podcast Cafeteria Brookings, which I am now joining as a co-host with my colleague Adriana Pita, on our website at edu.Brookings.Edu/podcasts. I’m Fred Dews, the former host of the Brookings Network Podcast, and you’re listening to Current The from Brookings, where we provide analysis and breaking news on conversations and scholars.

Natan Sachs, the director of the Center for Middle East Policy at Brookings and a senior fellow in Foreign Policy, has been invited to The Current to discuss the current situation in Israel. The approval of the bill has caused a state of unrest in the country, leading to protests in Tel Aviv, Air Force reservists refusing to fulfill their duties, and doctors announcing their intention to go on strike. The “reasonableness bill” was passed with a unanimous vote of 64 to 0, as all opposition members had left the chamber and all members of the Knesset’s governing coalition voted in favor. On Monday, the Knesset of Israel successfully passed a bill that removes the power of the Supreme Court to declare government decisions as unreasonable.

SACHS: Thank you very much, Fred. It’s nice to be here with you.

DEWS: So, let’s talk about the context first of what’s happened. What is the reasonableness doctrine that the new law has changed?

The reasonableness doctrine, which originated from the history of judicial decisions, plays a significant role in reviewing administrative decisions. This doctrine, especially in British common law systems, allows for easy changes. However, instead of having a clearly defined constitution, like the basic laws that we consider as legislation, Israel operates with a gradual legislative approach.

The 1980s saw an expansion of various factors, particularly in Israel. All of these factors fell under the umbrella of reasonableness. In the United States, decisions made by officials, government ministers, and the government itself could be arbitrary and lacking in serious consideration of the consequences or potential conflicts of interest. Instead of evaluating decisions based on their potential conflicts or interests, sometimes it was deemed more appropriate to simply accept them. This is because the court will never strike down a law as unreasonable. Therefore, reasonableness does not apply to laws.

The government has certainly not passed the reform, but today the opposition, including many people, were actually open to some reform. It had become expansive, but unlike other administrative review processes in other countries, it is not. It is a special kind of thing in Israel.

Claiming that in order to fulfill the will of the voters, the Prime Minister says that this new law will make you do whatever. In the new Israel under Netanyahu, pure unbridled majoritarianism could decide anything, even by the slimmest of majorities. In February, you wrote a piece on our website about Benjamin Netanyahu’s efforts to limit the role of the Supreme Court. So, DEWS.

The reasonableness is really the only small element in that. The goal of the sweeping government program was really to undo and check decisions by the government on Israel’s legislative and government decisions. So, it is not just a small element but a small element in comparison to the vast project that this government has set out to limit the ability of the court to oversee or override both executive and legislative decisions. This points to two points on this.

Why did I write that? Well, imagine a scenario where, for example, in the United States, if a small majority in the House of Representatives wanted to pass an outrageous law, such as curtailing the rights of certain minorities after a terrorist attack or something else, it could easily happen. However, it would be very difficult to override it as it would be enshrined in the Constitution as amendments to the Bill of Rights, which would operate very clearly and go through the whole set of federal courts. Additionally, if it were to go for a presidential veto, it would be very hard to override. Furthermore, the Senate has a filibuster. Well, the Senate might pass it.

In Israel, the Knesset, which is the only supreme court, can pass a bill curtailing individual rights or minority rights without any veto power from the presidential chamber. There are no higher chambers or second houses, and the Knesset members, 64 out of 120, now need a small majority of 61 members to pass a bill.

In essence, democracy is not exactly the same thing as majoritarianism, but it is certainly a component of it. The government has the full scope to allow a small majority to exercise their power, and theoretically, the Supreme Court is the only check on this exercise. However, this is a facetious argument because it is highly unlikely for someone to be executed or have their citizenship stripped based on someone else’s annoyance, even though the government could potentially decide on such extreme cases. In any case, the essence of democracy lies in the fact that there is only one check on the rule of a very small majority, regardless of how one may phrase it.

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In light of this situation, the desires of the voters are also the backdrop, the most right-leaning in a considerable amount of time, perhaps even the most right-leaning in a considerable amount of time, which appears to be the current makeup of this coalition at present, and also the current makeup of this coalition currently, the extremely narrow margins in the Knesset that Prime Minister Benjamin Netanyahu has assembled, the multitude of elections that have occurred in Israel for prime minister, and that’s the multitude of elections that have occurred in Israel for prime minister, I understand it’s something you’ve discussed extensively with Adrianna on this very program in recent years, Natan, to delve into the broader context in Israeli politics, may I inquire, DEWS.

One major case was the grand coalition government falling apart quickly. Israel, with its parliamentary system and the need for multi-party coalitions to form a government, saw four elections that essentially ended in a draw, as no party had the ability to command a majority in the Knesset. This ongoing trial is now in motion, where the prime minister, Benjamin Netanyahu, is presumed innocent until proven guilty, of course. The trial mostly started with the indictment of Benjamin Netanyahu, the current prime minister, on three corruption cases. This is a severe political crisis coming out of five years.

This is easily the most extreme coalition in Israeli history. Some of these senior members are now part of his own coalition. This includes elements of the Likud Party, like the Conservative Party, which has traditionally avoided these more extreme factions. Personally, I don’t even think the word “conservative” is accurate. In fact, Netanyahu had to work very hard to orchestrate a coalition before the pre-election period, which was very far in advance. However, Netanyahu managed to come to power and lead a coalition with a small but decisive lead of 64 seats. Finally, Israel had its late elections last year, where Netanyahu’s coalition came out on top.

Initially, they tried to stir up a massive opposition by getting everyone else up in arms and really upset about their huge agenda. Now, instead of trying to do that, they’re focusing on passing small things to galvanize a huge opposition. They made an error in judgment by setting out to do such a sweeping and ambitious plan. This overhaul of the judicial system, led by Levin Yariv, the Minister of Justice from Netanyahu’s Likud Party, would be the first order of business to be passed. They agreed upon what they came together for. It’s true that they also have many other issues to address, such as the state and religion, but especially when it comes to Israeli policy in the West Bank and regarding Palestinians.

And they indeed possess a majority. Elections are the survey that truly matters. However, polls are simply surveys. Enacting this legislation without widespread agreement goes against the will of the majority of Israelis, as evidenced by current polling data. The 64 votes, which translate to 64 seats in the Knesset, do signify a majority of Israelis. I would like to emphasize the significance of the majority.

The passing of what they’re simply not here is policy. What they’re passing here is fundamental changes to the constitutional makeup of the country. It is legal in Israel. It is now law and they can pass this bill. If you think of it as the equivalent in the United States, it would be like if the House of Representatives decided to change the constitution with a small majority. Of course, that would be impossible in America. It would also require a majority of the states. It would take a very long time and today it would basically be impossible.

In one instance, the greater part coincidentally becomes a lesser part simply because they mistreat the lesser part. They are unable to choose to become a greater part in that situation. However, there need to be limitations on that. The greater part should be given priority and the desires of the population should be combined. That is logical. Typically, in a democratic system, we grant priority to the greater part. Naturally, each and every individual holds authority in a democracy. They are also the lesser part, they are the greater part, they are the people. Democracy is the governance of the people, but it is not identical to democracy. Majority rule is a fundamental aspect of democracy, secondly.

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Although I said it’s a constitutional change, the sense in which democracy would be deeply infringed upon is that unbridled majoritarianism would prevail. If there were no Supreme Court to stop them, there would simply be no check on them, and it would open the door to a government deciding things without any hindrance. However, this legislation is not necessarily an abuse in itself, but a necessary change now.

Prior to this, have you witnessed demonstrations of this nature? I’m referring to individuals taking to the streets in opposition to this, what types of sentiments are prevalent among the Israeli population? Correct? These protests have been ongoing for quite some time, they did not commence solely on Monday or Tuesday. Furthermore, it is important to acknowledge that certain other protests throughout the nation, let’s establish a connection between those and the street protests. Well, DEWS.

The Israeli Air Force is a very important component of the Israeli Defense Forces, and it is crucial for the readiness of the Air Force that all pilots and personnel fulfill their duty and volunteer. We have seen large numbers of people, especially pilots, in the Air Force, but there are still some who have not shown up to volunteer, despite the order. Even reservists in the military are saying that they will not volunteer to serve. These are not simply young radicals, as we have seen people from all walks of life, academia, and industry, actively participating in the streets. These large percentages of the population are absolutely enormous. If you look at the numbers, it is clear that this is unprecedented in the history of Israel. SACHS.

The demonstrations in my hometown of Jerusalem, as well as all over the country, have truly been remarkable. They have taken place during the hot days and nights of the week, and have been organized very well. The opposition has shown an absolutely remarkable strength, thanks to the persistent and resilient society of civil society.

The legislation was gradually passing, returning to a move that was broken again a week ago. We saw this as a week that saw the largest demonstrations to date, with the prime minister Netanyahu pausing and stepping back in negotiations with the opposition in order to reach some kind of consensus. And it was actually the night through which all the demonstrations erupted. He did not actually do it. In March, after the threats, the defense minister declared that he would not show up for the defense minister’s show.

They proceeded. Consequently, the proposed agreement was declined and he had suggested a compromise on the bill, as recommended by the Prime Minister. Indeed. DEWS: I observed that.

They believe that this is just the first step in a much larger push. Refusing to believe that this is the end of the story, he says a word of opposition. The Israeli government, officially declaring their refusal to believe his word, is refusing to negotiate in the context of this prime minister’s very low credibility in Israeli political institutions, especially in the backdrop of the sweeping revolution. But in the context of this prime minister, it is reasonable to think that there would probably have been an agreement on some form of changing what is considered reasonable. In a different year, with a different prime minister, it would have been easier to negotiate in a vacuum. Of course, the opposition, refusing to negotiate, is portraying this as a point of opposition. Netanyahu: SACHS

What are the implications for the United States in this dispute? The Netanyahu administration has recently implemented this specific measure as well as other measures that have been condemned by the Biden administration. DEWS: Well.

Israel stands out as the foremost among them. Moreover, those possessing military capabilities, including allies in the area, would heavily depend on Israel’s perspective on how the United States will navigate its Middle East policy in the future, which the United States greatly depends on its partnership with Israel. In fact, I would argue that even more than the average Democrat today, Biden himself strongly supports Israel. In this aspect, he aligns with the traditional pro-Israel stance of the Democratic party. Now, the Biden administration faces a challenging situation.

The partnership between the United States and Israel has consistently been a fundamental aspect of Israel’s democratic standing, particularly within the Green Line. However, the Palestinian question and their status remain ongoing concerns, which should always be highlighted. Democracy is the foremost concern among these issues, and they both hold profound shared values, at least according to this notion. Their partnership is not solely driven by self-interest, but also rooted in this concept. Consequently, the enactment of such legislation and its current manner of approval is incredibly worrisome for Americans. Nevertheless.

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The demonstrations are causing a deep sense of bitterness among those who support Netanyahu and those who oppose him, resulting in an unprecedented polarization in Israel today. Many feel compelled to use mass demonstrations as a means to try and stop the majority’s implementation of this policy, expressing their strong dissatisfaction.

It remains uncertain what future legislation will entail. Despite not being helpful this time, he proceeded with it regardless. His support likely influenced Netanyahu’s pause in March, and he has been urging Netanyahu to cease. Instead of discussing specific laws, he believes that a clear majority of Israelis need to back something for it to happen, or else he opposes it. He mainly argues that any legislation with constitutional implications should be passed with consensus, although he does not explicitly state this. Initially hesitant, he has become more forceful in advocating for this, both personally and in interviews. Therefore, Biden has deviated from the usual practice of refraining from commenting on domestic matters in friendly countries. This level of polarization and harm is significant for a country that regards Israel as a close ally.

DEWS: Well, final question for you, Natan. What are you anticipating in terms of what might occur next?

There is a lot of reason to pause for him. We have seen warnings from S&P and now Moody’s on Israel. The shekel is losing value. The market is going down. The economy is being hit by this. Perhaps, if we turn to other things that would be less damaging to the state, we may manage to pass something important despite the strong opposition. This gave me a win for my constituency and my coalition. I am saying okay, and now maybe Netanyahu is pausing in different ways. You could read it in different ways. The first thing to watch is what is next in terms of Netanyahu’s coalition plan. I am watching for two things. SACHS:

Both they could control because they have the powers of separation, they really don’t need to change that. If they manage to politicize the Supreme Court, I will be looking for them to fall, either late or early. So, the first thing I’ll be looking for is whether the government takes up suggestions to change the process of judicial appointments and politicize them. He may have his own interests involved. Also, as I said, he is on trial. On the other hand, there are many different items that he would like to pass.

The domestic concerns are what we are discussing today, and it would also pertain to what we are discussing today. This would be highly significant for other aspects, but it would also likely involve significant measures by Israel on the Palestinian front. Saudi Arabia is much larger and more important than the UAE or the other partners. And it would be significantly larger than the Abraham Accords. It would be a drastic change in Israel’s position in the region and to some extent, for the entire region. Therefore, it would bring about peace. Saudi Arabia and Israel have officially been in a state of war. And indeed, there has been a coordinated effort in Jerusalem, as well as in Riyadh and Washington, to promote the normalization of relations between Israel and Saudi Arabia. Despite all the skepticism for various reasons, we are witnessing in recent months, the second aspect relates to foreign policy.

I am skeptical that this could happen, but it is possible nonetheless. It would be a very risky move politically for Netanyahu, as he is not known to be a risk-taker. However, if there were significant changes in the reality of the situation, such as a real agreement with Saudi Arabia in the context of peace, it could offer some hope for the future. I think it would be a major thing to see a different coalition in power, which could potentially lead to betterment in the West Bank. But we should all be very skeptical of this and not simply trust him based on past experiences. It may be a very hard pill to swallow for the right flank of Netanyahu’s coalition.

I want to thank you for taking the time to talk to me today, Natan. Now, let’s leave it there. Okay. DEWS.

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