As Israelis continue to be divided by the government’s plans to change the judicial system, Fathom is pleased to publish a correspondence between Aylana Meisel, Chairwoman at Israel Law & Liberty Forum and Paul Gross, Senior Fellow at the Menachem Begin Heritage Center. In a country increasingly riddled by extreme rhetoric, Meisel and Gross – both writing in a personal capacity – represent a model for how to engage in respectful disagreement over controversial issues.
Dear Paul,
Allow me to open our correspondence by thanking you and Fathom for encouraging this exchange on Israeli judicial reform. Let’s commence by starting the story where it truly begins, in the founding of the fledgling State of Israel.
Beset by enemies, flooded with Jewish refugee populations from Europe and Arab lands, deeply divided, and struggling economically, the new state defers creating a constitution. Israel proceeds with a Westminster-style parliamentary democracy inherited from Mandate Palestine, including a balance of power favouring parliamentary supremacy in the absence of a written constitution.
As in the UK, the early Court was able to strike executive action but not override parliamentary legislation. It retained traditional limits on justiciability and required plaintiffs to show standing. While overriding executive action and liberally interpreting parliamentary law to protect civil and human rights, the Court abided by broadly acknowledged limitations and enjoyed high public trust for decades.
Fast forward through the Court-led 1995 ‘Constitutional Revolution’ to today. Public trust in the legal system is at an all-time low. Liberal and conservative scholars alike have criticised decades of judicial power grabs, and clashes between the judiciary and Left- and Right-wing governments have led to often unsuccessful judicial reform proposals. An unchecked Court has assumed the authority to adjudicate any challenge brought by anyone against any state action, including the capacity to invalidate Knesset laws (and, it now seems, even laws the court itself has deemed to have constitutional status i.e. Basic Laws,). Inconsistent decisions applying malleable (and selectively applied) doctrines foster a perception that a ballooning library of self-referential case law advances judicial policy preferences. Minority populations, including Mizrahi, Haredi, and national-religious Jews feel particularly affected – but judicial overreach into military, diplomatic, economic and political affairs affects everyone, leaving little recourse at the ballot box.
Judicial power is further enhanced by the Court’s original jurisdiction over constitutional cases, with no right of appeal; default control of Supreme Court justices over the selection of their successors; the participation of retired judges in key committees overseeing senior appointments to state bodies; and the Court’s practical elevation of the Attorney General from government legal advisor to supervisor. Democracy has become juristocracy. The improvisational start-up mentality has served the Jewish State well, but not in structuring our law and governance. Israel is a now unique species compared to any Western democracy.
We are still experiencing the contractions of the birth of Israel – an incredible privilege whose realisation demands fuller knowledge and leveler heads than those in a distorted media, academic, and political discourse. Productive conversation that acknowledges the history, and sets aside the myth of extremist overhaul in favor of empathy and debate is deeply needed. We have a responsibility to each other and to the state to re-vest power in parliament where our interests and policy preferences can clash and moderate, as messy and frustrating as that process can be. That is democracy – and no less important, it is the exercise of restored Jewish sovereignty in our homeland.
Warmly, my friend,
Aylana
***
Dear Aylana,
I’ll start by also thanking Fathom for ‘hosting’ us, and thanking you for joining me in this conversation. You and I share a great love of Israel, and a tremendous amount of mutual respect. As I anticipated, you kicked off this debate with a terrifically cogent set of assertions… most of which I happen to disagree with.
I’ll start though with an area of agreement. I don’t dispute that many scholars from across the spectrum are critical of Israel’s Supreme Court, and would like to see reforms which reduce the Court’s power and reach. Where you and I part ways fundamentally I think, is in our assessment of the specific reforms proposed by this Israeli government – both their effect and their intention.
It is my belief that the reforms put forward by Justice Minister Yariv Levin will result in more-or-less unchecked power for the prime minister and his cabinet. Further, I believe this is precisely the intention.
Despite your claim of a ‘juristocracy’, a look at the data tells us that the Court has actually been remarkably circumspect in its use of judicial review, including compared to judiciaries in other countries. But even if one agrees that the Court has been too activist, the answer is surely then to create a more balanced system, not one which swings the pendulum of power all the way over to the other side. History teaches us that an all-powerful executive branch is a far more terrifying prospect. When Finance Minister Bezalel Smotrich (a man who has endorsed separate maternity wards for Jewish and Arab mothers) was asked who would protect basic civil rights if the government’s reforms come to pass, he seemed to recognise that the Court would no longer be able to, and replied that he would. I don’t know about you, but I don’t find that reassuring.
If the Israeli judiciary is indeed unusually powerful, it’s also true that Israeli liberal democracy is unusually fragile. Without a written constitution or a second chamber of parliament; with an incredibly centralised governmental structure with very little power devolved to municipal authorities, and (unlike the UK, which you refer to as the model for Israel) a party and election system which allows very little scope for independence by individual members of parliament. The Supreme Court is the only effective check and balance on the power of the government to work its will.
The ‘Constitutional Revolution’ – which you refer to as ‘Court-led’ but was actually initiated by a Likud-led government and endorsed in two separate votes by the Knesset – was required because Israeli citizens lacked statutory protection of human rights until the passing of the two relevant Basic Laws in 1992 and 1994. (British citizens – similarly unprotected by a written constitution – have enjoyed the protection of the European Convention of Human Rights since 1950 and even more so since 2000, when the Human Rights Act incorporated the ECHR rights into British Law.)
I have no doubt that you are honestly looking to improve Israeli democracy. Perhaps over the course of our discussion we’ll even agree on what that might look like. But the government’s plans have nothing to do with improving Israeli democracy – unless it is the illiberal democracy beloved of Viktor Orban (not incidentally, a political hero for many of Netanyahu’s aides and supporters); a democracy that begins and ends with the ballot box, majority rule with no restrictions on the power that majority can wield once elected.
In anticipation of your reply.
Warm regards,
Paul
***
My friend,
This format allows for limited rebuttal, meaning I can address only some of our disagreements.
Let me clarify that my goal is not to endorse specific judicial reform proposals but to explain why we should forgo rhetoric of extremism – neither accurate nor productive – instead evaluating each reform proposal for its potential to ameliorate juristocratic challenges and serve as the basis for deliberation and compromise.
We are mutually concerned for civil and human rights and a strong and independent judiciary. The unlimited power the court has seized for itself harms both. Let us refine your history lesson. Any overly powerful branch of government is problematic – but Israel’s executive does not fit this description. No government nor Knesset has lasted to term; no party has ever won a majority of the Knesset; and legislators have multiple times shifted parties mid-Knesset. The government depends on shifting alliances in the Knesset to survive, and elections are all too frequent. Even the maximal reform proposals leave the executive checked by the Knesset and considerable Court doctrines, as it was prior to Justice Barak’s innovations.
Meanwhile, in upcoming cases, the Court is considering whether to overturn Basic Laws – adjudicating the very mechanism from which it unilaterally derived judicial review, and taking that unprecedented step against laws circumscribing its power. The Court thereby places itself above any written law. Whither the check?
The Israeli Court may overturn laws less frequently than some courts in countries with written constitutions, but it is the only court in the democratic world to strike down laws without a written constitution. This leaves the Court both supreme over legislation and over the very rules by which it should be governed. The problem grows when government legal advisors who kill nascent proposals with binding ‘advisory guidance,’ citing predictions of the Court’s behavior. Vague legal standards that maximise judicial discretion not only concentrate power, but create a perception of selective application of the law which damages trust in the Court’s critical role in protecting rights.
Barring a written constitution, the parliament, representing the People, is the proper venue for policy determinations. Yes, coalitions will always include varied minority groups. Even where specific characters or statements may be objectionable, this is a virtue of our system, not a vice. Liberal democracy entertains differences and navigates them through the deliberative process. Policy decisions by judicial fiat inevitably stunt critical debate and political accountability, fostering social conflict. This is the case even where the Court acts with the best intent and reaches desirable policy results in its rulings.
It seems that you doubt the motives of reform far more than its effects, and here I can only acknowledge your feelings. I am not asking you to trust politicians, but to trust your fellow citizens on whom their representative power draws. That trust is vital to our national survival. In that spirit, I also urge you to speak out against the emerging radicalism within the protest movement, noted by thinkers ranging from anti-reform Professor Yedidia Stern to pro-reform Gadi Taub. Liberal democracy is threatened not by political debate, but the conviction that all means justify one acceptable end.
Warmly,
Aylana
***
Hi Aylana,
You depict a weak Israeli executive, well checked by the legislative branch.
It is of course true that Israeli governments usually collapse before their allotted four-year term, and it is true that they are always coalitions of different – and often diverse – parties. However, contrary to the common assumption, Israeli coalitions are rarely so unwieldy that they qualify as weak. Until the genuinely unique period of 2019-2022, with its five elections, the tenure of Israeli governments since the turn of the century averaged a little less than three years. Not a full term, but plenty of time for a government to make its mark on the country.
Even more importantly, the electoral system in Israel incentivises slavish party loyalty. Unlike in the UK, Canada, New Zealand, and European parliamentary democracies that I’m familiar with, none of Israel’s legislators are directly elected; they are names on a party list, with loyalty only to their party. In the UK, MPs must also answer to the geographical constituencies they represent, and to their local party branch, which may disagree with central party HQ.
In the UK it is simply inconceivable that a party leader on trial for corruption could remain in office. If he were leader of the British Conservative Party, rather than the Likud, Netanyahu’s own MPs would have forced his resignation, faced with both public pressure from their constituencies, and the British convention that certain things ‘are just not done’. The House of Commons Privileges Committee, whose report led to Boris Johnson’s resignation from parliament, has a majority of MPs from Johnson’s own party. The equivalent situation in Israel would be unimaginable. I suspect that most Israelis are not aware of just how independent legislators in other parliamentary democracies are, relative to ours.
A nightmare scenario for my side of the debate is one where the government wishes to – for example – limit who is able to vote in an election. With the judiciary neutered, we would be relying on enough individual MKs to vote against their own parties. I don’t see any reason for confidence that this would happen. (Again, unlike in the UK, where a clearly radical policy would inevitably provoke some level of rebellion on the government benches.)
I agree with you Aylana that the absence of a written constitution automatically makes a powerful judiciary more suspect. Where we disagree is that I do believe it is, nevertheless, the only real check on government that we have; that the Israeli legislature presents no reliable obstacle to an executive bent on abusing its power.
As for what you term the protest movement’s ‘radicalism’, for me, the really meaningful radicalism is coming from the government. The major players seem determined to push through maximalist ‘reforms’, which will leave us with a judiciary appointed by the executive; and all major state institutions controlled by the executive, including in areas where liberal democracy requires political independence, such as media regulation or determining which parties can run in an election.
You started by saying you are not necessarily endorsing specific reforms. Perhaps you could offer thoughts on what Israeli reforms you would ideally like to see, that would produce a healthy balance between representative government and institutional checks on majority power.
Warm regards,
Paul
***
My friend,
Your delineation of ‘really meaningful radicalism’ shocked me. Thinkers on both sides of the aisle express concern at growing lawlessness within the protest movement and the politicisation of important institutions such as the army, the labour and medical union, and the universities. You personally know academics behind reform who have had their livelihood and their lives threatened. Do you seek healthy compromise – or the total delegitimisation of political rivals with whom you need to compromise for the national good?
The inaccurate extremism narrative discourages negotiation and barrages international Israel supporters with unending hypothetical horrors, often too unfounded and too numerous to even debunk (horrors, I may add, which may be most easily perpetrated by an unlimited and unchecked judiciary). Exhibit A, you linked to poor coverage of a plan to deregulate the media, increasing access to a historically closed market. Did you research the issue or the proposal before chucking it into the ‘extremism’ bin?
Clickbait press is driving an impoverished public discourse and reform leaders have been too embattled – and indefensibly disorganised – to explain much in Hebrew let alone English. Politics and optics were poorly handled, leaving unanswered even legitimate concerns. For example, I agree that it looks bad to have ministers serving under indictment, but here’s the unfortunate reality: upholding the liberal democratic presumption of ‘innocent until proven guilty’ is critical when nearly every prime minister (and other politicians) has been at least criminally investigated by a zealous prosecution.
This evolving national project is imperfect, but we need space, time, and understanding to improve. Where were my protesting friends when former Prime Minister Lapid and MK Gideon Sa’ar agreed to explore a 65-person override, or when MK Sa’ar campaigned on limiting the reasonableness doctrine? Were there not democratic deficits when the Judicial Selections Committee convened in 2020 despite a boycott by conservative members and selecting 61 judges with only one politician present? Was it political excess when 2005 Justice Minister Tzipi Livni, enraged that Barak blocked her worthy judicial candidate, refused to convene the Judicial Selection Committee, leaving five Court vacancies and a heavily burdened legal system?
If the politicians worry you more than the policy, I ask again: what’s the plan? Applying double standards – no less to a government stocked with, and representing, identifiable religious minorities – quickly takes us down the dangerous road of distinguishing between ‘really meaningful’ and ‘less meaningful’ radicalism.
My vision for Israeli democracy includes accountable and limited government, the rule of law not men, protection for civil rights, and checks and balances; restoring a strong and trusted judiciary outside of Israeli politics, with the right of appeal in constitutional cases; decentralising government power and empowering local authorities in areas such as transportation management and law enforcement; expanding the Knesset and ensuring that citizens vote directly for some or all representatives; holding sacred the peaceful transfer of power through free and fair elections, even when you (and I) prefer another political constellation; overturning this last norm (by simply rejecting the legitimacy of the coalition) is ‘meaningful radicalism’ – and unacceptable.
The best compromise will leave us all dissatisfied but working together – with democracy all the healthier in our Jewish State.
Warmly,
Aylana
***
Hi Aylana,
As you mention people being threatened physically, I want to start by stating what I hope you would assume anyway: that I in no way endorse violence by my ‘side’ of the debate. I surely know that you feel the same about any violence from your side.
I was wondering at what point in our correspondence I would begin to feel like we were inhabiting two different realities. I think that moment has arrived.
I don’t deny that plenty of other Israeli governments have fallen short of the standards we have a right to expect as citizens of a modern democracy, but I find it difficult to understand how you cannot see the unique threat posed by this government, and by these specific reforms. It’s true that Gideon Saar sought reforms, but he was – and is – interested in changes that would genuinely strengthen our de facto constitutional system, not just strengthen the executive branch at the expense of the judiciary. I know he has proposed – for example – entrenching the Basic Laws, so they cannot be introduced or amended by a simple majority like any other law. This government by contrast has notably not proposed anything like that, but does insist that the Supreme Court has no right to block amendments to Basic Laws. In other words, the government should be able to change our de facto constitution using its automatic majority in the Knesset, but it would be an outrage for the Court to get involved, regardless of the content of the Basic Law.
I just don’t see how this government’s plans for ‘reform’ can be assessed without acknowledging the character of this government. What if this were not Israel? If you knew of another country, an ostensibly western liberal democracy, where the prime minister refused to resign after being indicted for corruption, and then sought to implement reforms of the legal system once back in office. That alone might give you pause, no? And then, what if you learned that, in order to maximise his chances of winning back power, he had empowered a previously ostracised far-right party, led by a man with multiple convictions for inciting racist violence?
Israel has never had this kind of coalition before. Six parties, most of which do not subscribe to the most basic tenets of liberal democracy. The Likud still officially calls itself a ‘liberal’ party, despite its program being entirely antithetical to the old liberal-national / ‘supremacy of the law’ worldview of Menachem Begin. I daresay there are some Likud MKs who remain personally attached to the old liberal ideas, but they lack the will or the backbone to stand up to Yariv Levin and others, whose understanding of democracy is closer to Viktor Orban‘s than to Begin’s.
Your sole criticism of the government is that it has been too ‘embattled’ and ‘disorganised’ to respond to ‘inaccurate’ media reports. But Netanyahu has pointedly refused to be interviewed in the Israeli mainstream media, appearing only on the slavishly pro-government Channel 14, and in Western media, facing interviewers he knows are not equipped to counter the deluge of deceit and distortion.
I agree with every single element of your ‘vision for Israeli democracy’. But I see no connection whatsoever between that vision and the agenda of this government.
Warm regards,
Paul
***
My friend,
Your last letter boils down to: I trust my politicians but not the ones those other people voted for. Welcome to democracy. This trust challenge is best addressed through unity governments where parties moderate each other, an approach rejected by opposition parties which Netanyahu may have preferred in the coalition. There may be many justifications for the boycott, but this coalition was the natural and preventable result. With the increasing radicalisation of the protest movement, we are headed not for improvement, but more of the same.
Your appeal to Begin is ironic. His voter base included the minority coalition your last letter denigrates as Channel 14 viewers (remember these classics?). He was called fascist and Nazi, his election allegedly heralded the death of democracy, and presided over a more limited legal system than even the initial reform package envisioned: no judicial review of parliamentary legislation, no mutated reasonableness doctrine, no binding guidance by the legal advisor on most matters. The legal system has changed; the dismissal of his voter base remains deeply entrenched in Israeli culture, as do the charges of fascism heaped on every right-wing prime minister since his time.
Despite a complex and disputed history, most press is uncritically equating every statement by a legal figure to the rule of law, and every political statement to encroaching fascism. Neither of these things is or can be true. I don’t have to like the coalition to identify the pattern, and to know that violence, politicised social and intellectual institutions, and the protest leadership calling Israel apartheid or the government Nazis endangers Israel despite the best intentions of most demonstrators. Systemic checks constrain even the most sectorial politician – rather than outside actors – and have already done so this administration. It is a tragedy that the international community is being battered with this internecine warfare without necessary context.
That context is needed for a rich debate on how to strengthen our law and governance. You reasonably complain of an indicted prime minister still in service; conservatives might suggest caution as Israeli politicians lack many procedural protections afforded elected representatives in other Western democracies. You reasonably complain of the flexibility of Basic Laws; conservatives might remind you that but for the 1992 Court constitutionalising a Basic Law passed by only 32 MKs, the Basic Laws would have no constitutional status today nor would there be judicial review (as demonstrated by the law’s legislative history [Hebrew] ). We can have this discussion on every issue, if allowed. But that would mean dispensing with this flawed ‘extremism’ narrative and engaging with the other half of the country sharing this cramped living space.
I ask you again: what is your constructive plan for coexistence? What alternatives do you offer in the spirit of compromise? Much work lies ahead to build on the miracle left to us by our parents and grandparents. That work requires both empathy and humility, that are especially difficult – but especially necessary – to show now. The problems of the past are with us in the present; if we work together, they need not follow us into the future.
On that note – l’shana tova u’metuka,
Aylana
***
Hi Aylana,
The protesters are not against this government simply because ‘we didn’t vote for them’. We do not oppose the ‘starting point’ of democracy: that the majority decides who gets to rule the country for four years. But we do insist that it is just the starting point. The majority cannot change the rules of the game once elected; destroying or weakening the institutions that limit its power.
If what you imply were right, that this is just a protest movement of sore losers, it wouldn’t explain why hundreds of retired security officials, diplomats, academics – including many who do not fit the caricature of left-wing and/or Ashkenazi – have publicly come out against the government. It would not explain why a trio of Israel writers, whose careers have been devoted to explaining Israel in English, and who have inspired thousands of pro-Israel activists, are now publicly calling on Diaspora Jews to join in opposing this Israeli government. And of course, it would not explain the entirely unprecedented size and scope of the protests.
You might be right that ‘charges of fascism’ have been ‘heaped on every right-wing prime minister’, but not by a mass protest movement that can bring out hundreds of thousands of people across the country for weeks on end.
I know you come to this issue with many years spent thinking and writing about how to improve Israeli governance, and that reforming the judiciary is a major part of the change that you have long advocated. But my views are similarly informed by time spent thinking and writing about related issues. I was writing op-eds expressing my fears about an illiberal/far-right Israeli coalition three years ago. I had been researching anti-liberal trends in Europe and the United States, and I found it impossible to ignore just how similar the rhetoric about democracy and liberalism was from Yariv Levin and others, to the leaders of Hungary and Poland, who have neutered institutional checks-and-balances. Today, prominent supporters of the government’s agenda are also fawning admirers of Viktor Orban, while Hungarian and Polish constitutional lawyers have warned that Israel is following their governments’ ruinous playbook.
If your background explains your apparent commitment to any reform which weakens the Supreme Court, then perhaps mine explains my conviction that this reform amounts to a power-grab by wannabe authoritarians.
I agree with you that working together, especially across political, religious and ethnic divides will be the way we ultimately find our way out of this mess. But believe it or not, that diversity is actually on display at the pro-democracy protests, where every week I see religious and secular, Ashkenazim and Sephardim, and – yes – even left and right, flying Israeli flags and singing Hatikva together
As I wrote in my very first contribution to this debate, I know that you and I share a great love for this country. What has been confirmed for me by this exchange is that we also share values, and a very similar idea of what a healthier Israeli democracy might look like. I have no expectations of convincing you that this government is antithetical to that shared vision, but if my gloomy prognosis is right, it may soon become unarguable. At which point I will look forward to seeing you contribute your brilliance, eloquence and passion to the protest movement!
Until then, I remain your confounded but steadfast friend.
L’shana tova u’metuka,
Paul
