Seismic crisis in Israel

What in the world is going on in Israel? A political controversy has catapulted the nation into world headlines and some warn that the nation faces an existential crisis. Sources close to the Biden administration warn that the close relationship between the United States and Israel is endangered, and other western governments have upgraded their warnings. Then comes the shocking warning that actions by the current Israeli government may threaten Jewish support for Israel within the United States. How could that happen? Behind these headlines are issues of huge significance.

We must start with the immediate crisis. This week, Israel’s prime minister, Benjamin Natanyahu, pushed through Israel’s legislature, the Knesset, a measure known as the “reasonable standard bill,” but only after unprecedented protests in the streets of Jerusalem and Tel Aviv and even threats by military reserve pilots not to fly. The measure seeks to limit the sweeping power of Israel’s Supreme Court, which has effectively turned itself into a veto power against any action by Israel’s parliament and prime minister. Assuming this power for itself, in recent decades the court has claimed the power to nullify any action or government appointment that a majority of the judges sees as “unreasonable.”

The controversy does threaten Israel’s political order and stability. “Bibi” Netanyahu is now the longest-serving prime minister in Israel’s history. This time, he rose to power by aligning himself and his Likud Party with smaller conservative parties often referred to as Israel’s “far right.” Netanyahu has also faced corruption charges and has his own legacy of battles with the nation’s Supreme Court. More liberal forces in both Israel and the United States are outraged at the legislature’s passage of the “reasonable standard bill” and warn of a looming Netanyahu dictatorship.

Behind all this is a convoluted history and a painful reminder of why a written constitution is necessary. Israel does not have one, and never has. The United Nations action that formed Israel as a Jewish state required the early adoption of a constitution and the nation pledged to do so in its own Declaration of Independence. It did not happen. It has never happened. Israel’s founders lacked the political consensus that could produce a written constitution. Some historians also believe that Israel’s first prime minister, David Ben-Gurion, did not want his own power to be limited by a written constitution. In any event, the absence of a written constitution set the stage for repeated crises and difficult questions.

Starting in 1950, Israel adopted a series of Basic Laws that function much like the Bill of Rights in the United States. The Knesset never recognized the Basic Laws as having constitutional status, but the Supreme Court acted on its own to claim a power of judicial review over the Knesset and any action by the parliamentary majority. Years ago, under the leadership of presiding jurist Aharon Barak, the court went far further and claimed the power to strike down any policy or appointment that did not meet its standard of “reasonableness.”

The Supreme Court and its allies argued that such powers were necessary to check the power of a prime minister and parliamentary majority. But even before the current conservative government came to power, there were many in Israel who worried that the Supreme Court had basically turned itself into a star chamber without any such constitutional authority or limitation. Imagine for a moment that the Supreme Court of the United States declared for itself the power to nullify any action by Congress or any presidential appointment. But, strangely enough, it is the political left in the United States who now declare that democracy in Israel is dead.

Americans do understand the need for a separation of powers, but we also understand the more basic need of a written constitution. A self-governing nation needs a text, a written compact that simultaneously empowers and limits government.

There is a lot more to the story in Israel. The founders of modern Israel were notably secular, and many were either agnostics or atheists. Ben-Gurion believed that the most religiously orthodox among the Jews would pass out of existence, leaving Israel safely secular. Instead, by both migration and babies, the religiously orthodox are growing in numbers, population share, and political influence. They are behind the coalition that brought Netanyahu to power, and they see the Supreme Court, quite accurately, as the elitist opposition. In fact, there is abundant evidence that the Court sees itself that way. It means to be an elitist opposition and a guardian of Israel’s secular tradition.

Many major Jewish organizations in the United States share the basic secular worldview of Israel’s founders. They see the Supreme Court as a bulwark against encroaching religious influence in Israel, and they warn of a breach in support. President Biden has offered his own warnings to Netanyahu and Israel. In general, liberals are outraged by the Israeli government’s action, and conservatives are pleased—up to a point.

Israel has always faced lethal dangers without and political crises within. There are massive issues facing Israel, including the fate of Jewish settlements on the West Bank, the treatment of Christians within the nation, the rights of Palestinian inhabitants, and fundamental moral questions as well. There, as here, the secular left wants to champion LGBTQ rights and the religious right wants to honor creation order and marriage. Right now, in terms of basic political power, energy has shifted from the secular left to the more religious right. Now, the stage is set for further crisis as the Supreme Court has announced that it will review the Knesset action limiting the court’s power.

That’s right, the Supreme Court of Israel is set to review the reasonableness of the newly passed law that removes reasonableness as a criterion for its judgment. It is not unreasonable to expect this crisis to continue.