‘A time of emergency’: What you need to know about the fight over Israel’s court system

TEL AVIV (JTA) — In the coming days, Israel’s parliament is due to vote on a measure that, advocates on both sides say, will determine the country’s fate — or whether it can even survive.

It isn’t a peace deal or an attempt to unseat Israeli Prime Minister Benjamin Netanyahu. What it will do, if passed, is bar the Supreme Court from striking down government decisions it deems “unreasonable.” 

Behind that somewhat technical language is a struggle over Israel’s soul. It’s an escalating fight that has seen the largest, most sustained protest movement in Israel’s history. It has seen demonstrators block highways, march from Tel Aviv to Jerusalem and pledge to boycott army service. It has seen both Netanyahu and his opponents warn that the end of democracy is nigh. And it has seen Israeli President Isaac Herzog, a figure meant to rise above the political fray, warn that the government’s push for major legislative change, and its critics, could lead to “real civil war.”

The reason for the dire pronouncements is that the “reasonableness law” is one piece of a broad plan, put forward by Netanyahu’s right-wing coalition in January, to significantly weaken Israel’s judiciary. If passed in its totality, the overhaul would sap the Israeli Supreme Court of much of its power and independence, removing a major check on what the Israeli government can do. 

But even though Netanyahu enjoys a solid majority in parliament, the plan, so far, has yet to be enacted. That’s largely due to a massive protest movement that says Netanyahu is endangering Israel’s democratic system. The demonstrations have brought hundreds of thousands of Israelis into the streets and led to widespread civil disobedience.

Both sides of the debate say the internal conflict is a test of Israel’s system of government. Now, a growing number of voices are using increasingly anxious language that would have been unthinkable just a year ago, from threats of street violence to warnings that the Israel Defense Forces could implode.

“This is a time of emergency,” Herzog said Sunday. “An agreement must be reached.”

The civil strife is occurring against the backdrop of heightened Israeli-Palestinian violence and while Netanyahu, 73, is on trial for corruption and has recently been hospitalized twice. Here’s a primer on the judicial overhaul, what supporters and opponents say is at stake, and what may happen next. 

Israeli Prime Minister Benjamin Netanyahu seen during a vote in Knesset, the Israeli parliament in Jerusalem, March 22, 2023. (Yonatan Sindel/Flash90)

Netanyahu and his allies want to fundamentally change Israel’s court system.

At the end of last year, Israeli voters returned Netanyahu to office — and he assembled a coalition with far-right partners that holds 64 of the 120 seats in the Knesset, Israel’s parliament. Days later, his justice minister unveiled a plan that, in its original form, would have rendered the Supreme Court largely powerless. 

The initial plan would have given the coalition complete control over the selection of judges, and would have allowed the Knesset to overrule Supreme Court decisions with a bare majority. Another measure took aim at the “reasonableness” clause. 

Netanyahu and his allies portrayed the legislative package as a curb on an increasingly activist Supreme Court that was out of step with the country’s right-wing majority. Its composition, they charged, was a vestige of Israel’s secular, Ashkenazi elite and did not reflect the country’s ethnic and Jewish religious diversity, including the country’s large number of Mizrahi Jews. 

But a growing number of critics — from centrist and left-wing Israelis to foreign leaders to American Jewish organizations — cautioned that the overhaul would endanger Israel’s status as a democratic state. 

Because the governing coalition by definition commands a majority in parliament, they say, the court reform would effectively give Netanyahu and his partners complete control over all three branches of government. The court has historically been a protector of the rights of minorities — from Arabs to LBGTQ Israelis to liberal Jewish movements — and critics of the plan worry that it would put those safeguards at risk. Those worries are exacerbated, they say, because the prime minister leading the effort to weaken the judiciary is currently on trial.

A Tel Aviv protest at the start of Yom Haatzmaut, Israel’s Independence Day, featured a sea of flags, April 25, 2023. (Ben Sales)

The overhaul effort has sparked a historic and growing protest movement. 

Those critiques have coalesced into the largest protest movement in Israeli history, which has seen hundreds of thousands of Israelis take to the streets every week, many waving Israeli flags, to oppose the plan. Pro-government demonstrations, much less frequent, have also occurred. 

Anti-government protest organizers have also escalated their tactics — blocking major highways, calling for strikes, crowding the main airport terminal and, this week, leading a days-long march of thousands of people from Tel Aviv to Jerusalem. And it has spread to cities across the United States and the globe, disrupting American Jewish gatherings in Israel and confronting Israeli officials on their visits abroad.   

The most striking protest tactic has come from a growing group of IDF reservists — as of this week more than 10,000 — who have pledged to stop showing up for duty if the overhaul, or any piece of it, is enacted. Within Israel, the IDF is the country’s most widely trusted institution, and is seen as an indispensable guarantor of Israel’s security. 

Because of its mandatory draft, it has also historically been viewed as a reflection of Israel’s diverse Jewish citizenry. But those who have pledged to boycott their duty say they are unwilling to continue risking their lives for a government that is no longer democratic. 

The overhaul’s proponents, including Netanyahu, say that threats to refuse military service cross a bright red line in a society that faces external threats and prizes national service. In a recent address, Netanyahu said threats to avoid reserve duty as a pressure tactic violated the principle that the civilian government must wield control over the military.

Israeli President Isaac Herzog addresses the nation in a speech exhorting a delay on proposed judicial reforms, Feb. 12, 2023. (Courtesy Herzog’s office)

Efforts at compromise have failed and rhetoric is becoming only more severe.

Months ago, the government took steps to advance the major pieces of the judicial overhaul. A rapid spike in protests and criticism in March, however, convinced Netanyahu to pause the legislative effort and enter dialogue with his political opponents. 

But those talks — brokered by Israeli President Isaac Herzog, whose role is largely ceremonial — have collapsed. A few weeks ago, Netanyahu announced that he was restarting the legislative process with the “reasonableness law.”

Now, both sides are making arguments that, at their core, sound almost identical. 

Critics of the plan say that a country without an independent and empowered court system cannot be a democracy. They have accused Netanyahu of ramming through a major change to Israel’s governing system without broad consensus, and point to surveys showing that most Israelis oppose the overhaul plan. 

The plan’s supporters say that, in fact, they are the majority — pointing to the fall elections that their side won. The true failure of democracy, they say, is the elected coalition being rendered unable to govern due to a protest movement that is blocking roads and calling on soldiers to shirk their duty. 

This week, the military reserve protests have led to more urgent warnings. The Institute for National Security Studies, a respected think tank, warned on Sunday that the IDF “is at risk of disbanding.” 

IDF Chief of Staff Herzi Halevi has a similar message. 

“If we will not be a strong and unified army, if the best do not serve in the IDF — we will no longer be able to exist as a state in the region,” he wrote in an open letter.

View of the Jewish settlement of Eli, in the West Bank, Jan. 17, 2021.(Sraya Diamant/Flash90)

The internal Israeli turmoil is happening alongside increased Israeli-Palestinian violence.

In tandem with the conflict over the court reform, clashes between Israelis and Palestinians in the West Bank have escalated this year. More than 100 Palestinians in the West Bank have been killed in IDF military raids on terrorist cells, while more than two dozen Israelis have been killed by Palestinian attacks in the West Bank and Israel. There has also been conflict with Hamas in Gaza, and concern over Iran backing attacks on Israel.

Recent months have also seen a series of riots by Israeli settlers, who have entered Palestinian villages, torched cars, homes and shops and injured Palestinians in response to terror attacks. Palestinians have been killed amid the riots, and senior Israeli figures have described the riots as a “pogrom” or “terrorism.” 

Hardline figures in Israel’s government have called for harsh tactics in response to the violence.  Far-right Finance Minister Bezalel Smotrich called for a Palestinian village to be wiped out before walking the remark back and apologizing. Itamar Ben-Gvir, the far-right national security minister, has expressed sympathy for the rioters while also speaking out against vigilante justice.

While the riots are not directly connected to the overhaul effort, there are links. One of the right’s criticisms of the Supreme Court is that it has restrained Israel from expanding West Bank settlements, while critics worry that weakening the courts will mean removing an occasional protector of Palestinian rights. Meanwhile, Ben-Gvir and other right-wingers have charged that the government is responding more harshly to the settler rioters than to disruptive anti-government protesters in Israel — something he has called “selective enforcement.”

President Joe Biden answers a question during a joint press conference with French President Emmanuel Macron at the White House during an official state visit, Dec. 01, 2022. (Kevin Dietsch/Getty Images)

The situation is leading observers to question the U.S. relationship with Israel.

Heated discourse about Israel’s conflicts has spread to the United States. President Joe Biden has repeatedly criticized the judicial overhaul effort and has recently issued a series of warnings suggesting that if passed, the legislation could damage the U.S.-Israel alliance. 

Speaking to New York Times columnist Tom Friedman last week, Biden said the protests display “the vibrancy of Israel’s democracy, which must remain the core of our bilateral relationship,” and said that Netanyahu needs to “continue to seek the broadest possible consensus here.”

Elsewhere in the Times opinion pages, Nicholas Kristof wrote that the recent news out of Israel has led him to question if “it really make[s] sense for the United States to provide the enormous sum of $3.8 billion annually to another wealthy country?” That annual foreign aid allocation is at the core of U.S.-Israel relations and has been portrayed as sacrosanct by presidents from both parties. 

And last week, an address by Herzog to a joint session of Congress, meant to be a celebration of Israel’s 75th birthday earlier this year, took place shortly after a prominent progressive Democrat, Rep. Pramila Jayapal, called Israel a “racist state” — a remark she later walked back. Six other Democratic members of Congress boycotted Herzog’s speech. 

What happens next?

The vote on the “reasonableness” bill will almost certainly take place in the coming days and, if Netanyahu’s promises are any indication, could pass along party lines. But that almost definitely won’t be the end of the struggle over the judicial overhaul, even as a large number of Israelis say they fear civil war. 

Netanyahu’s right-wing allies, including Ben-Gvir, have vowed to pass the overhaul’s more sweeping components next, while opponents of the legislation have pledged to maintain and escalate their opposition. 

It remains to be seen who will prevail in the conflict, or what winning might even look like after more than half a year of civil unrest. Supporters, opponents and observers of the overhaul have all made clear that at this point, what is at stake is no longer just a piece of legislation but rather the military, the governmental system and, perhaps, the future of the country itself.