08 September 2023

The False Hope of Israel’s Protestors

Why The Supreme Court Is Not (And Never Was) The Last Bastion of Democracy

The Israel Supreme Court is under siege. Hasty constitutional reforms aggressively advanced by the Netanyahu far-right government since the last elections in November 2022 portray the Court as the main hurdle on the way to “restore the governability” of the Israeli executive. In late July, PM Netanyahu’s coalition made the first gaping hole in Israel’s fragile judicial system by amending the Basic Law: The Judiciary (one of the regime’s constitutional norms) so as to prohibit the Supreme Court from using the “reasonableness” doctrine when reviewing executive decisions. On September 12, the Court will hear the petitions against this amendment, having to defend its own prerogatives in an unprecedented full quorum of 15 Justices. The next steps in the government’s program may still include politicization of the judge selection committee and another constitutional amendment allowing the Knesset to override rulings that declare legislation unconstitutional on human rights grounds.

On the other side of the constitutional wall are those alarmed that the constitutional overhaul is leading Israel’s brittle democracy down the Hungarian and Polish paths toward an authoritarian regime ruled by a de facto unchecked government. In view of the reform’s planned assault on the independence of the Supreme Court, it is no surprise that the Court has become a major mobilizing source for the weekly mass protests against the reform that have been taking place in the last six months in many Israeli towns. Tens of thousands of liberals and conservatives rally around this institution, if not around anything else, confident that the Court is capable of preventing the government from irreversibly breaching the democratic walls.

Unfortunately, this confidence is both unfounded and likely to sabotage the anti-reform movement. Given its past rulings and when keeping in mind the conservative nature of the institution of the Israeli judiciary, it is safe to say that the Israel Supreme Court will not be able to salvage the country from a democratic backsliding driven by a determined executive. Despite its common depiction as the last bastion of the liberal elites in the country and international reputation as a strong defender of human rights, the Court has rarely attempted to stand in the way of the regime’s most acute atrocities. Nor has it ever seriously tackled the state’s structural mechanisms of discrimination, sufficing with occasional patches over oppressive practices. The role of the Supreme Court in the growth of Israel’s democracy has been of a reinforcing, rather than constitutive nature; so was its contribution to the government’s previous authoritarian adventures.

At the same time, other alarming anti-democratic campaigns that do not directly concern the powers of the Supreme Court and are less straightforward to expound, do not receive the same attention in the anti-overhaul camp. For instance, the continuous erosion of democratic public education, attacks upon the free press, chewing away the independence of law enforcement agencies, and other such efforts to reduce the voters’ democratic literacy pose a concrete threat to the rule of law and to constitutional guarantees of individual freedoms. In fact, they played a crucial role in mobilizing the support for the judicial overhaul among Netanyahu’s supporters. Tackling these problems and nurturing the capacity to distinguish democratic norms from populist ideology is a more promising path away from authoritarianism than the fortification of the Israel Supreme Court.

The Court’s Achievements

Granted, the Court has an impressive record of groundbreaking case law protecting the individual rights of women, ethnic, religious, and sexual minorities, migrants, and refugees against state incursion. To mention only a few of those, the Supreme Court has prohibited the Shin Bet to use torture techniques in the investigation of suspected terrorists, banned the use of Palestinians as human shields, and ordered the army to reroute the Separation Barrier in the West Bank splitting villages in the West Bank from its farmland. The Court helped to change entrenched social norms of violence against women by establishing that sexual contact requires explicit consent and confirming the conviction of the eighth President of Israel in rape, and broke the glass ceiling of combat roles qualifications for women in the IDF by forcing the Israeli air force to admit women to pilot training courses. It has compelled the government to register civil marriages, including of gay couples, that were conducted abroad, although inside Israel, the law only allows religious marriage (earlier this year, the Court even ordered the state to register an online marriage in Utah, while the couple was physically in Israel) and required the Ministry of Interior to recognize Reform and Conservative conversions to Judaism for citizenship purposes, thus breaking the monopoly of the Orthodox establishment over naturalization.

Even more vital for the liberal cause was the doctrine of judicial review of legislation created by the Court thirty years ago and its development in a robust series of rulings prohibiting the Knesset from disproportionately violating individual rights. During its most activist decades, the Supreme Court, led by President Aharon Barak (who retired from the Court 17 years ago but continues to be a prominent target of personal right-wing attacks), declared Israel’s Basic Laws to hold constitutional status and transformed the rather humble Basic Law: Human Dignity and Liberty into an extensive Bill of Rights. The Court interpreted the notion of dignity to include some of the most fundamental civil and political freedoms, such as equality and freedom of religion, and even social rights, such as health, education, and minimum standards of living, none of which are explicitly enumerated in the Basic Law’s text. Perhaps most important for the cultivation of the country’s liberal nature was its persistence that the definition of Israel as a “Jewish and Democratic State” in Basic Law: Human Dignity and Liberty, must be interpreted as giving precedence to democratic values over the Jewish in any case of conflict between the two.

The Court’s Shortcomings

The contribution of the Court to individual rights’ protection is therefore beyond doubt. It is understandable why the hopes of anti-reform protesters are pinned on Supreme Court Justices to preserve basic human rights guarantees and the state’s democratic nature. But scale is crucial. The Supreme Court has never challenged some of the most dubious foundational features of the State of Israel, notwithstanding their unreasonableness, violation of human rights, or incompatibility with international law. Consider the Palestinian issue: the Court has sanctioned the massive expulsion of Arabs and the appropriation of their lands following the 1948 and 1967 wars, the military occupation of the West Bank and the settlements project, the annexation of East Jerusalem and efforts to expel its Palestinian residents, the denial of national rights from Arab-Israelis, the “Judaization” of Galilee policy allowing Jews to exclude Arabs from certain types of towns in the North of Israel, and the dispossession of Bedouins’ lands and their forced resettlement in the South. Against this background, rulings such as those ordering the IDF to shift the route of the fence are seen by some as no more than a legal window-dressing that only helps to legitimize the Occupation in the eyes of the Israeli international public opinion.

Other longstanding government practices that concern the Ultra-orthodox Israelis are endorsed by the Supreme Court although they are widely recognized to compromise Israel’s democratic viability, hamper the economy, and arguably, impair the rights of women and youth in these communities. The Court has ruled constitutional the channeling of billions of Shekels into Ultra-Orthodox schools that teach only some or no parts of the state core curriculum and yet receive full or disproportionate funding (For instance, 84% of Ultra-orthodox boys in high school age attend educational institutions that teach no core curriculum but receive 60% of the funding given to public high schools). And although a decade-old ruling has declared unconstitutional an act automatically exempting all Ultra-orthodox men from military service, the Supreme Court continues to find pretenses to postpone its enforcement, clearly reluctant to tackle head-on a policy that has been in place ever since the establishment of the State of Israel.

The Court’s Dependency

Finally, some of the Court’s most progressive decisions are a result of insistent nudging from the government and after years of delays. Revolutionary rulings such as the recognition of non-Orthodox conversion for the purposes of citizenship as well as of straight and gay common-law marriages were given only when it gained support among large swaths of secular Israelis and when it was clear that the government is not willing to break the coalition with the religious parties over these issues but would certainly welcome the judicial change in the status quo. While not exhaustive, these patterns in the jurisprudence of the Supreme Court are indicative of its limitations. The Court is able to marginally raise or lower the plank of human rights protection as long as the government is interested in preserving their foundations but is an inherent institutional game player. It is not likely to defy a full-fledged populist affront upon the democratic rule of law.

In its current composition, the Court may still curb some of the apparent shorter-term goals of the constitutional overhaul, which entail nurturing corruption and eroding equality: protecting Mr. Netanyahu from the charges of bribery, fraud, and breach of trust in an ongoing trial, appointing allies convicted in tax fraud to Ministerial positions, boosting the construction of settlements and expanding what is already considered by some an apartheid regime in the West Bank, curtailing women and L.G.B.T.Q. rights, and increasing the funds for Ultra-orthodox institutions. But as has been painfully demonstrated in the revolutionary Dobbs decision by the US Supreme Court, decades of progressive precedents can be easily reversed in a blink of an eye. Two or three more rounds of judicial appointments to replace Justices that are up for mandatory retirement at 70 years old, would eliminate hard opposition to regressive policies even if no changes are made in the procedures of the judge selection committee. The recent attempt made by a Justice appointed with Netanyahu’s support in 2017 to scrap the Court’s traditional seniority system – where the most senior Justice is nominated the President of the Supreme Court – is only one of the means available in the far-right’s arsenal to destabilize the judiciary.

The act barring the Court from using the “reasonableness” standard was passed in the same week of the Jewish fast of Tisha B’Av, commemorating the destruction of the First and Second Jewish Temples in Jerusalem. The myths surrounding these events, especially the fierce civil war among Jewish factions during the Roman siege on Jerusalem bringing to a rapid disintegration of the Jewish resistance and the burning of the Second Temple in 70CE, remain a central point of traumatic reference in the Israeli collective conscience. Moments perceived as existential threats to the State of Israel raise fears figuratively framed as the destruction of the Third Temple, which may lead to (yet another) national disaster for the Jews. In the eyes of many Israelis, the legislative attack upon the Supreme Court in 2023CE risks doing just that. But anti-reform protesters must not put all their hopes in the institution of the judiciary. We ought to remember that the Court is not an obvious ally, that the fight for democracy will not end if the Court remains independent, and that even its demise does not condemn Israel to an authoritarian future. The Israel Supreme Court is not the Third Temple, it is at best one part of the walls protecting liberal democratic rule. The energy of the protest should be invested in democratic engagement, democratic education, and reconstruction of Israel’s paralyzed liberal political platform, not in the misplaced reliance on judges.