The Supreme Court vs Bibi’s judicial reform

On January 1, the Supreme Court of Israel dealt a blow to Prime Minister Benjamin Netanyahu’s controversial judicial reform legislation. This legislation, aimed at limiting the judiciary’s power to nullify government decisions deemed “unreasonable,” faced a substantial setback as the court stepped in.

Back on July 24, 2023, after seven months of heated debates and widespread protests, the Knesset passed the “Basic Law: the Judiciary (Amendment No. 3),”  a bill abolishing the “reasonableness” clause for reviewing executive actions. This clause had granted the Supreme Court and judicial power the authority to overturn government decisions found “extremely unreasonable.” The legislative move sparked vigorous demonstrations, with hundreds of thousands of Israelis taking to the streets, and even the military considering refusal to serve. The international community, including the United States and several European allies, expressed concerns and condemned the law.

In a closely contested decision, the Supreme Court, sitting for the first time as a full fifteen-justice grand panel, voted 8 to 7 to annul the judicial reform law, arguing that it posed a threat to Israel’s democratic principles and its standing as a democratic state.

The judicial reform had ignited an international debate on a matter seen as crucial for the sustainability of Israeli exceptionalism. Renowned jurist Alan Dershowitz, a professor emeritus of constitutional law at Harvard Law School, observed that “no other country in the world grants its Supreme Court such broad authority,” emphasizing that most countries require a constitutional violation to overturn laws or administrative measures.

Colleague Abraham Foxman, the national director emeritus of the Anti-Defamation League, countered, asserting that “Israel is different” due to its unicameral legislature and the absence of a written constitution, making the Supreme Court the only true institutional check on potential abuses of legislative and executive power.

The Supreme Court’s decision is considered positive news. Avv. Piero Cecchinato, a Constitutional law expert at the University of Padua, dispels the notion that constitutional systems, including those with a written constitution, do not allow the censorship of a law for unreasonableness – on the contrary, most do. Cecchinato explains that “reasonableness, born within judgments on the principle of equal protection of the law, has emancipated itself over time, becoming an autonomous judgment parameter.” Reasonableness entails the need for coherence with other legal principles, even when there is no clear violation of a constitutional norm. It is a fundamental criterion of democratic debate, underscoring the perceived risk of the Netanyahu reform.

But there is another crucial reason. The judicial reform could have upset the delicate balance of Israel’s social fabric, particularly concerning Zionism’s vision of Eretz Israel as a Jewish and democratic state.

In the past, the Supreme Court has repeatedly defended values such as gender equality and the protection of sexual minorities against strict religious restrictions imposed by the ultra-Orthodox establishment.

More recently, the Supreme Court has defended the Law of Return, which allows every Jew to immigrate to Israel, against attempts by the ultra-Orthodox to restrict Aliyah, subjecting it to the approval of the Rabbanut.

The issue has also reached the armed forces. Mandatory service for men and women is the instrument for the melting pot of traditions and ethnicities and a social adhesive. Ultra-Orthodox Jews are exempt from military service, and the Supreme Court has repeatedly declared this exemption discriminatory.

The fear was that the judicial reform would strengthen the ultra-Orthodox wing of Israeli society, jeopardizing political and religious pluralism and the secular state’s principle.

Netanyahu’s political concessions to fundamentalist parties highlight the challenges faced in maintaining government stability. Jerusalem is going through a politically complex moment, aggravated by the war against the Hamas terrorist group. But as President Isaac Herzog said to the joint session of the United States Congress on July 19, 2023, democracy is in Israel’s DNA and will remain in it forever.

There is proof of this: frequent elections and peaceful protests are not signs of a divided society but evidence of a robust democracy in action. The Supreme Court’s pivotal role in this constitutional saga reflects the resilience of democratic institutions, offering hope for a united and inclusive future for all Jews in Eretz Israel.