A Much-Needed Win for Democracy
Israel’s Highest Court strikes a blow against autocracy
New Year: 2024. Two nations, each struggling—and often failing—to live up to its democratic principles. Each faces a criminal leader, one in power, one fighting to regain it, who has turned the rule of law upside down. Both men are backed by powerful, anti-democratic and religious nationalist forces from within, and both seek autocratic rule, primarily to spare themselves from accountability by the judicial system and the will of the voters.
These were my thoughts as I absorbed the news yesterday. In the headlines was a major decision: The Israeli Supreme Court, by the narrowest of margins in an 8-7 full court opinion stretching 738 pages, with each justice penning separately, delivered its most consequential ruling in the nation’s history. It found that the ruling party’s attempted changes to the Basic Law, which would strip the Court of the right to review many laws and appointments, were illegal and unenforceable.
This had been a power grab by Israeli Prime Minister Benjamin Netanyahu and his right-wing government, the most extreme ever to hold power in the country. The “reforms” would have gutted traditional checks and balances and sent the country careening down a path of one-party autocracy. The proposed law had led to weeks of protest, with hundreds of thousands of Israelis filling the streets to protect what remained of democracy there. The crisis paralyzed the country, with many military reservists even resigning, saying they would not serve should the changes ultimately be pushed through. The paralysis, as many observed and I have written about earlier, weakened the country and left conditions ripe for Hamas’s terrorist attack on October 7.
Today, as the import of the opinion resounds, Israel faces a constitutional crisis. Netanyahu and his allies could choose to ignore the ruling, which would pit the legislative and executive against the judiciary within the country. As I’ll explain below, Israel has no “constitution,” as most nations understand the word, leaving the system open to parliamentary malfeasance. If this highly unpopular government goes down this path, the opposition will likely again take to the streets, and any sense of national unity in the wake of the October 7 attack will be gone, if it hasn’t dissipated already.
I would also be remiss were I not to draw parallels between the right-wing attack upon democracy inside Israel and the rise of MAGA extremism and the threatened return of Donald Trump here in the U.S. Israel is showing us, in real time, the perils of electing a strongman backed by extremists. And its Supreme Court is providing a guiding light for the rule of law and for checks upon authoritarian power. Like Israel, our democracy balances upon a knife’s edge, and there are strong lessons to be learned from what Israel is now experiencing.
Israel’s Basic Law and the attacks upon it
Israel has no constitution. Instead, it has operated for decades upon what is known as the Basic Law, which is really a set of establishing laws. As the New York Times explained, “The laws, which lay out the functioning of government and enshrine some fundamental rights, have been enacted piecemeal for decades in lieu of a formal constitution.”
The Basic Law was enacted by Israel’s legislature, the Knesset, which operates by majority rule and also selects the country’s powerful prime minister, usually through a governing coalition. Until Netanyahu’s administration, Israeli politicians have left the Basic Law undisturbed, meaning that the Supreme Court in Israel has always had some say over laws and political appointments.
Traditionally, Israeli courts could weigh in on legislation and political appointments and block them if they were deemed “unreasonable.” This is a standard used by other national court systems in places like Britain, Canada and Australia. As the Times also summarized, “A government action is deemed unreasonable if a court rules that it was made without considering all relevant factors, without giving relevant weight to each factor or by giving irrelevant factors too much weight.”
Netanyahu, who faces criminal indictments, set out to weaken the independence of the judiciary by proposing amendments to the Basic Law. These included stripping the judiciary of its right to use the reasonableness standard to overrule the decisions of legislators and ministers. He wanted the Basic Law changed because, simply put, many of his decisions were made in the interest of political expediency, and not out of any sense of reason.
A good example of this was the appointment of Aryeh Deri, an extremist ultra-Orthodox politician. Netanyahu wanted Deri in his government to help cement the loyalty of right-wing extremists. But the Israeli Supreme Court blocked Deri’s appointment, ruling that it was unreasonable to appoint such a man when he had recently been convicted of tax fraud.
When Netanyahu pressed ahead with his proposed changes to the Basic Law, the opposition took to the streets in months of sustained protest. Such a change would grant Netanyahu unfettered control of the political system by removing the judiciary as the last bulwark against autocratic rule.
The Israeli Supreme Court’s decision
There were two parts of the decision on Monday, both of which are critical to our understanding of the state of Israeli democracy. The Court comprises 15 justices, and two of the liberal justices including the President of the Court had recently retired, so this was the final ruling of their tenure. The Court heard the case before all sitting justices, a very rare circumstance.
The Court first ruled 12-3—a powerful rebuke—that judges indeed do have jurisdiction to decide the legality of changes to the Basic Law themselves. Wrote the President of the Supreme Court, Esther Hayut,
In my view, it is not possible to square the amendment to the Basic Law on the Judiciary and the principle of the separation of powers and the principle of the rule of law, which are two of the most important characteristics of our democratic system. Such a violation at the very heart of our founding narrative cannot stand.
As the Israel paper Haaretz reported, Hayut found that the court must protect Israel's constitutional project and exercise judicial review in those rare cases when the Knesset has exceeded its authority in amending any of the Basic Law. She added that such judicial review should only be exercised in the most extreme cases and with great caution.
The actual proposed law under review, however, only garnered the slimmest of majorities. Hayut wrote,
Today we must take an additional step and rule that in rare cases in which the beating heart of the Israeli form of constitution is harmed, this court is authorized to declare the invalidation of a basic law that has in some way exceeded the Knesset’s authority….
The dissenters argued that nothing in the laws originally granting the Court authority to review the Basic Law states that such authority cannot be removed by a vote of the legislature, which is what was attempted here.
This underscores the danger of the absence of a foundational constitution in Israel. The Supreme Court was forced to read into the laws a basic restriction that the rules cannot simply be changed to fit the political moment, and for the legislature to do so exceeds its own authority.
Authoritarian echoes
Attacks upon the fundamental underpinnings of democracy and the rule of law in Israel draw a close parallel to what we are experiencing in the United States. In both cases, a would-be dictator, seeking to save his own legal hide, is pressing the limits of what the system can tolerate—and is exposing its vulnerabilities.
In the United States, the Supreme Court very soon will be faced with an existential question over the power of the executive and the limits of presidential authority. In his defense against federal criminal charges in D.C., former president Trump is arguing for unprecedented “absolute immunity” from all criminal liability for any actions taken that were even colorably within his official capacity as president, including his attempts to overturn the 2020 election. While it is highly unlikely that even this extremist SCOTUS majority would ever extend such absolute immunity, the very fact that Trump has demanded it is telling and terrifying, should he regain office.
Trump is also arguing that, because members of his own party in the Senate failed to join Democrats in convicting and removing him following his impeachment for inciting insurrection on January 6, 2021, he can no longer be tried for that crime. This would grant to any president who has the unquestioning loyalty of most of his own party, as Trump has now, a dangerous get-out-of-jail card. It would elevate politics above judicial review, just as Netanyahu has attempted in Israel.
The Supreme Court also will soon face the thorny question of Trump’s eligibility to appear on the ballot. Colorado’s Supreme Court and Maine’s Secretary of State both recently concluded that Trump cannot appear on their states’ primary ballot because he engaged in insurrection, a disqualifying act under Section 3 of the 14th Amendment. The Section’s authors, however, left out precisely how candidates would be deemed to be insurrectionists, apparently finding the question an obvious one at the time. And so, like the Israeli Supreme Court’s majority, the U.S. Supreme Court may now be required to read a legal standard into the actual text of the law should they wish to give it any real effect.
Should Trump be reelected president, he has promised to be a “Day One” dictator, to pursue retribution against his political enemies by turning the Justice Department into his personal political weapon, and to only appoint loyalists to positions within the civil service. This again would elevate political objectives far above adherence to the rule of law, echoing what Netanyahu did with his cabinet, and lead to corruption of our politics through the degradation of our civil institutions and civil servants.
On this, the opinion of Justice Isaac Amit in Israel carries an important lesson for the U.S. As Haaretz noted,
Amit wrote that the amendment eliminating the court’s ability to strike down decisions of the cabinet and its members as unreasonable would mean “giving the cabinet ministers and the cabinet immunity in the field of appointments. The prospect, or more accurately, the risk of corrupting the public service and damaging [its] incorruptibility as a result of manipulation of the professional staff at the various ministries is an unavoidable result of eliminating the reasonableness grounds – and the result is a certain prescription for the deterioration of the professional public service and its corruption.”
A dangerous moment
The Israeli Supreme Court’s decision comes at a time when opposition to the war in Gaza is mounting, both internationally and in Israel, with a horrifying 22,000 Palestinians killed and nearly two million displaced and suffering without adequate food and water. International support for Israel has crumbled, and just yesterday Israel announced it will pull some of its troops out of the region due to strains upon its military.
Israel’s hard-right leaders have condemned the decision as judicial overreach that has weakened national unity, while its supporters have heralded it as a courageous stand against an increasingly anti-democratic regime.
A refusal by Netanyahu’s government to abide by the decision could produce political turmoil and unrest, even as war rages and threatens to expand and the economy takes a serious hit. The temporary unity government, forged out of political necessity from the war, could also collapse if Benny Gantz, a leader within the Israeli opposition, departs the unity government in protest.
Americans would do well to observe the lessons unfolding in Israel. Returning a strongman to power, who will actively seek to undermine the judiciary, civil institutions and the rule of law in pursuit of his own personal goals and to escape legal accountability, will result in political chaos as the citizenry protests his moves. It will weaken national unity and security, leaving us open to attack by our enemies. And it will threaten the very underpinnings of our democratic system, as ambitious loyalists cast aside democratic norms and promote religious and nationalist extremism to secure political power and sow discord.
Our courts should take heed and learn a lesson as well. In such fraught circumstances, when the very future of liberal democracy lies in doubt, our courts are often the last backstops in a deep slide toward authoritarian rule. Judicial independence acts as a cherished safeguard, even for liberties and rights that do not expressly appear in the text of our foundational documents but are necessary for ordered liberty.
The enemies of democracy around the world believe this is their moment to strike, in the wake of a worldwide pandemic and two raging conflicts with global ramifications. The Supreme Court in Israel has now delivered a win for democracy, and we must embrace and extend its message in our own struggles at home.
I was thrilled to hear this news. I'm a Reform Jew in the US and the Ultra Right in Israel does not consider me a "real" Jew. They would turn against all the Reform Jews into the country!!!
I'm tired of Netanyahu turning Israel into a theocracy.
His narrow-minded moves go against a central core of Judaism: Tikkun Olam.
That means: working to make the world we're in a better place.