Fighting for court control

An estimated 75,000 protesters took to the streets of Jerusalem on Feb. 20, marching outside the Knesset, the Israeli parliament, as lawmakers prepared to hold their first vote on controversial legislation meant to reform the nation’s judiciary. Navigating a sea of blue-and-white Israeli flags, demonstrators carried an enormous replica of the country’s declaration of independence. Inside the Knesset, after six hours of fiery debate in which some flag-wearing legislators were escorted from the hall, the vote passed 63-47 just after midnight.

The protest followed seven weeks of traffic-stopping demonstrations in Jerusalem, Tel Aviv, and other cities across Israel as ­voters decried what they say is government overreach. Within days of Prime Minister Benjamin Netanyahu retaking office late last year, his ruling coalition announced plans to overhaul the nation’s Supreme Court. The proposal would allow parliament to “override” the high court: Any law the court strikes down as unconstitutional could return to the Knesset, where a majority would be able to overturn the court’s ruling.

Critics say this effectively strips the nation’s courts of judicial review, severely weakening Israel’s democracy. Leaders across the political spectrum have declared a democratic crisis. While Israel faces threats from Palestinian militants who have renewed attacks on Israeli-occupied sites, tensions and hostility over the judiciary reform effort present an internal political threat as well.

Along with the parliamentary override, the proposals would change the composition of the nine-member Judicial Selection Committee. The committee currently includes two Cabinet ministers, two Knesset members (including one from the opposition), three Supreme Court justices, and two representatives from the Israel Bar Association. Judicial appointments require approval from at least seven committee members, effectively giving political representatives and members of the judiciary veto power. The proposed amendment would change the committee’s makeup so that at least five of the nine members would represent the interests of the ruling coalition.

Netanyahu’s allies are a coalition of nationalist and religious lawmakers who say reforms are needed to better represent the will of the people and to check a judiciary that has become politicized and activist. But the Supreme Court president, Justice Esther Hayut, said the overhaul plan would deal a “fatal blow” to the country’s democratic identity. An independent judiciary, she said, “is the guarantee that the rule of the majority does not turn into the tyranny of the majority.”

Dan Arbell, scholar-in-residence at the American University Center for Israeli Studies, says the changes would centralize all branches of government under the prime minister. “It’s changing the very character of Israeli democracy as we know it,” says Arbell.

Netanyahu, a hawkish leader who staged a political comeback last year, has stitched together six terms for a total of 15 years as prime minister. His opponents note he never pushed for judiciary reform until he faced a corruption trial stemming from a 2019 indictment. That trial is ongoing.

During the November election, Netanyahu’s conservative coalition won 64 of 120 Knesset seats on promises of better national security and legitimization of unauthorized Jewish settlements in the West Bank. The ultra-Orthodox members of the coalition want changes because they fear the Supreme Court will require yeshiva students to serve in the military. The ultra-nationalist members also support the reform because, according to Arbell, they want “a Supreme Court that will prioritize Jewish values over universal values and will allow settlement expansion, settlement construction, and would not favor appeals by the Palestinian population.”

Neil Rogachevsky, research fellow at Yeshiva University, sees a need for reform. “The Israeli Supreme Court has insane legislative power beyond the scope of any activist judge in the United States’ wildest dreams,” he said.

The region has recently seen a return to violence as Israeli military forces have carried out raids against Palestinian militants in the wake of deadly attacks against Israelis. In January and February, the Israeli military killed at least 20 Palestinians during raids in the Jenin refugee camp and the city of Nablus in the West Bank, the deadliest operations in almost 20 years. Some fear violence could spread to the rest of society over the reforms, particularly if the legislation passes and the Supreme Court proceeds to strike it down.

Some observers even worry a civil war could break out. “It’s a worst-case scenario, but one cannot rule out such a scenario in which each side is very much gung-ho on its goals,” Arbell says.

U.S. Ambassador to Israel Tom Nides said the Biden administration was pressing Netanyahu to “pump the brakes” and seek consensus and agreement. In response, Diaspora Affairs Minister Amichai Chikli told Nides that he should “mind your own business.”

Netanyahu has said he is open to dialogue. Meanwhile, his administration is pressing ahead with the changes.