This is the second of a two-part series explaining the current protests and debates over proposed judicial reforms in Israel. The first part discussed the history and context of these debates. Check it out here.
When Prime Minister Benjamin Netanyahu came back to power in 2023 in a coalition of the far-right religious parties, following the historic five elections in a span of two years, one of the coalition’s main goals was to end the unfairness of the judicial system and make the judicial system more like the United States. Netanyahu, for his part, has not acted on this issue for the sake of stability in Israel. But now, because he has the votes to get the legislation through Knesset, his other security and economic priorities have been fulfilled and he is facing extreme pressure from within his coalition, he made judicial reform a priority and protests from the opposition began to form.
At first, the protests were like every other protest in Israel—people chanting and marching in the streets. But then, the political leaders made critical messaging mistakes. First, as the governing coalition already had the votes to pass the bill, they attempted to ram through the proposals when they should have implemented the changes slowly. To the opposition, this looked as if the coalition were willing to pass these structural reforms without negotiation or compromise, even from President Herzog’s proposed plan. People also thought that these reforms were meant as a way to keep Netanyahu and the coalition in power in perpetuity.
Next, the opposition leaders refused to compromise or negotiate when Netanyahu offered, especially when they saw the potential for chaos in front of them. The head of the Yesh Atid party, the centrist party, and the opposition, Yair Lapid, was silent and the head of the Blue and White Party, another center-right party, Benny Gantz, continued instigating anger from the opposition. Finally, Netanyahu summoned key government officials including the Consulate General of New York for speaking out against the reforms.
But the moment that changed everything was when Netanyahu fired Defense Minister Gallant for speaking out against the national security threat of the reforms. This showed the public that the coalition was not going to take any criticism, no matter the security risk, similar to many dictatorships. This resulted in over 3% of the entire population of Israel coming out to protest in the streets on both sides of the issue while the entire Histadrut (labor unions, academia, military, diplomat corp, etc.) all participated in strikes against the legislation.
So what exactly are these reforms? They come in five parts:
1. Override Clause: The override clause would allow the Knesset to override the judiciary with a majority of 61 votes out of 120 seats. The supporters believe that this would give overriding power to the elected officials by the public. The opposition believes that with the coalition consisting of 64 seats, they could override anything they want with three votes to spare.
2. Judicial Appointments: this would allow the Knesset to appoint two more members of the committee that votes on judicial appointments. Now the committee is of three Supreme Court judges, two members of the Bar Association, and four elected representatives. The reforms would replace the two members of the Bar Association with officials chosen by the Minister of Justice. The problem with this is that more times than not, the Minister of Justice is a political appointee and that would make over half of the committee run by the ruling party. The supporters again say this is more representative of the people’s leaders.
3. Retirement Age: The judges would receive a retirement age of 67, down from 70. This is important because now, there are four judges who are at or over the age of 67 who would immediately be removed. This not only gives the government in power now the ability to choose a third of the new judges but for the opposition, it is also suspicious timing as Netanyahu may potentially be on trial soon for corruption charges and it looks like he is choosing his own judges for that trial.
4. Basic Laws: The court would no longer be able to judge Knesset legislation based on the “Basic Laws: Reasonability.” The supporters believe that the reasonableness rule was too open-ended whereas the opposition believes that this was the main check and balance against the government in charge and would allow for the court to rule on unnatural situations.
5. Legal Advisors: Government ministers will be able to choose their own legal advisors. The supporters believe that this will allow the ministers to receive trusted legal advice and the opposition believes this will accelerate the politicization of legal reform because current legal advisors are “non-political bureaucrats.”
Despite how the media portrays these protests, they are about more than just judicial reforms. When politicians in the U.S. were advocating for expanding the Supreme Court, we did not see these kinds of protests. These protests are a proxy war for other major social problems in the country.
First off, although 66% of Israelis are against at least one aspect of the reforms, the Supreme Court of Israel is at its lowest levels of public trust with only 42% of Israelis trusting the Supreme Court right now. They believe that though the Court does overreach its limits at times, it should be able to strike down laws it deems as undemocratic.
Secondly, this division is the result of the resentment between the secular and religious aspects of the Israeli population mentioned earlier. More religious people believe that the court is discriminating against them. This is due to rulings like the 2005 expelling of settlers from Gaza, shutting down political appointees that align with their beliefs because of previous criminal records, and the refusal to give all orthodox students exemptions from military service. The secular population believes that the Supreme Court is the only check on an increasingly religious government to ensure the country doesn’t turn into a radical theocracy like Iran. Many believe this is a moment that will help determine what Israel is going to be structurally: the theocratic religious Jewish state or the secular democracy where religion is separated from government.
The third is the result of five elections in two years; the fatigue of the same policies, figures, and fighting has had an effect on the Israeli public. In addition, the end result of Netanyahu coming back to power, when he was the focus of the failed election does not help his cause and makes people on all sides suspicious of government institutions and the media. An October 2022 Index poll showed that only 18% of the population has trust in the Knesset, 9% has trust in the political parties of Israel and 23% has trust in the media as a result of the elections.
Finally, there was a truly profound moment during these protests in that the entire diplomatic corp, labor union infrastructure, the only international airport in Israel, and the entire academia went on strike in the span of one week against a piece of legislation they didn’t like. Some even report the prime minister coordinated the strike with the Histadrut to find an excuse to pause the legislation. This means that the divisions between the establishment and the coalition are incredibly strong. People are not seeing this yet but if the Histardut can rally the entire diplomatic corp to go on strike against a piece of legislation and the Prime Minister stops the legislation because of it, it means they can get away with it and they can do it again.
So, what does all of this mean for Israel and the United States?
Israel is the U.S.’s strongest ally in a Middle East that is growing ever more dangerous as Iran is becoming more powerful. Israel must resolve this soon through compromise because the longer these protests go on, the more of a security risk they are facing with a Saudi- and Emirati-supported Iran. This has been covered by the media in every one of Israel’s enemies and it is spewing doubts about Israel’s strength as a state throughout the world. Only compromise and transparency on behalf of Netanyahu will give every side a piece of what they want and will give the public trust in their government.
Benjamin Netanyahu took the first step and decided to stop the bill from going through and to hold off until after Passover. But as President Biden has effectively shunned Netanyahu for this incident, the protests continue, and the American Jewish diaspora, Israel’s largest supporters, has become skeptical of Netanyahu, the consequences of these actions are becoming more and more significant by the day. Was the moderation too little too late? Has it hurt the U.S.-Israel relationship? And will this tarnish Netanyahu’s legacy creating the superpower Israel is today and will become in the future?
Only time will tell.