Support 110 years of independent journalism.

  1. World
  2. Middle East
12 September 2023

Israel’s democratic unravelling

The judicial overhaul is just the first step in the far-right government’s plan to transform the country.

By Joshua Leifer

Editor’s note: This article was originally published on 18 July and has been updated in light of recent events. On 24 July Israel’s parliament passed the first in a series of laws aimed at restricting the Supreme Court. Following months of protests against the judicial overhaul, today (12 September) all 15 Supreme Court judges are meeting to hear petitions against the legal amendment that restricts their powers. This is a historic showdown that looks set to inflame the ongoing crisis.

On Tuesday 11 July thousands of Israelis filled the streets in protest at the governing coalition’s efforts to dismantle the country’s judiciary. In the northern port city of Haifa, hundreds of protesters blocked the main highway along the coast. About 10,000 protesters stormed Terminal 3 at Ben Gurion airport, while in Tel Aviv, police used water cannon to disperse protesters. Later that day several thousand more protesters gathered around the Knesset, Israel’s parliament, in Jerusalem, where the previous midnight lawmakers had approved, in the first of three votes required for passage, a bill that would repeal the Supreme Court’s “reasonableness standard”, criteria the Court uses to block administrative decisions by the government and its ministers that fail to adequately consider the public interest.

The bill to eliminate “the reasonableness standard” is just one component of the far-reaching attempt by the government of Benjamin Netanyahu, the prime minister, to fundamentally alter the structure of the Israeli state. In January the justice minister, the phlegmatic Yariv Levin, revealed the full extent of the plan, which has come to be known among its opponents as “the judicial overhaul”, and in so doing plunged the country into the political crisis from which it has yet to emerge. If passed, the measures announced by Levin would give the governing coalition absolute control of judicial appointments, enable the Knesset to re-legislate by a simple majority (61 of 120 seats) laws struck down by the Supreme Court, and curtail the court’s power of judicial review. The current bill to abolish the “reasonableness standard” would prevent the court from applying this criterion to decisions made by the cabinet, government ministers and “other elected officials, as determined by law”.

The “day of disruption” on 11 July marked the start of the second phase in the struggle to stop the judicial overhaul. The first phase reached its peak in mid-March. As the coalition prepared to pass the first plank of the judicial overhaul, the reconfiguration of the parliamentary committee that appoints the country’s judges, the scale of the protests mounted, including threats by Israeli army reservists in elite units to refuse to report for duty if the bill passed. On 25 March Yoav Gallant, the defence minister, delivered a televised address in which he warned that the judicial overhaul was endangering the country’s security and called on Netanyahu to put the legislation on pause. The next day, Netanyahu said he would fire Gallant, provoking a spontaneous outburst of mass demonstrations and a wildcat general strike by the country’s labour federation. Under pressure, Netanyahu announced that he was putting the “the judicial reform”, as the right calls it, on hold so his government and the opposition could begin negotiations on a “broad” compromise. A couple of weeks later Netanyahu said Gallant would not be fired after all.  

Yet Netanyahu’s pause was less a victory for the protest movement than an armed truce. The bill to reconfigure the judicial appointments committee still sits ready to be passed with a simple majority. For roughly three months, Netanyahu’s government and the parliamentary opposition, led by the centrist former TV host Yair Lapid and the erstwhile chief of the Israel Defence Forces Benny Gantz, convened for talks under the auspices of the president, Yitzhak “Buji” Herzog, the ineffectual former Labor Party leader. As long as the negotiations were ongoing, Netanyahu committed not to advance the judicial overhaul legislation, the first part of which remained, like a loaded gun, on the table. It appears he hoped the negotiations would fulfil a dual purpose: that they would blunt the protests’ momentum and, simultaneously, temporarily alleviate the pressure from his far-right coalition partners to move forward with the bills.

Select and enter your email address Your weekly guide to the best writing on ideas, politics, books and culture every Saturday. The best way to sign up for The Saturday Read is via saturdayread.substack.com The New Statesman's quick and essential guide to the news and politics of the day. The best way to sign up for Morning Call is via morningcall.substack.com
  • Administration / Office
  • Arts and Culture
  • Board Member
  • Business / Corporate Services
  • Client / Customer Services
  • Communications
  • Construction, Works, Engineering
  • Education, Curriculum and Teaching
  • Environment, Conservation and NRM
  • Facility / Grounds Management and Maintenance
  • Finance Management
  • Health - Medical and Nursing Management
  • HR, Training and Organisational Development
  • Information and Communications Technology
  • Information Services, Statistics, Records, Archives
  • Infrastructure Management - Transport, Utilities
  • Legal Officers and Practitioners
  • Librarians and Library Management
  • Management
  • Marketing
  • OH&S, Risk Management
  • Operations Management
  • Planning, Policy, Strategy
  • Printing, Design, Publishing, Web
  • Projects, Programs and Advisors
  • Property, Assets and Fleet Management
  • Public Relations and Media
  • Purchasing and Procurement
  • Quality Management
  • Science and Technical Research and Development
  • Security and Law Enforcement
  • Service Delivery
  • Sport and Recreation
  • Travel, Accommodation, Tourism
  • Wellbeing, Community / Social Services
Visit our privacy Policy for more information about our services, how Progressive Media Investments may use, process and share your personal data, including information on your rights in respect of your personal data and how you can unsubscribe from future marketing communications.
THANK YOU

Neither happened. By the end of June, not only had the protest movement successfully mobilised Saturday night protests for 28 straight weeks but the demands to carry out the judicial overhaul both from within Netanyahu’s right-wing populist Likud party and the hardline ethnonationalists in his coalition partners Religious Zionism and Jewish Power had become impossible to placate. In mid-June the talks collapsed, and Netanyahu’s coalition resolved again to pass the judicial overhaul, this time not all at one, but gradually, piece by piece, starting with the “reasonableness standard”. 

The protest movement has one aim: to stop the judicial overhaul and remove it from the government’s agenda. It is not a movement to transform the country. Instead, as one Haaretz journalist tweeted frankly, it is “a movement to preserve the status quo”. It carries the banner of “democracy”, yet, with the exception of a small but dedicated bloc within the protests, has little to say about the military dictatorship Israel has operated in the occupied West Bank for more than half a century. Indeed, protest leaders appear to see no tension between marching for democracy in Tel Aviv while cheering the Israeli army’s deadly raid on Jenin in the West Bank in early July. The movement’s rhetoric and concerns reflect those of Israel’s highly educated middle class, those who describe themselves as dutiful taxpayers and loyal army reservists.

Benjamin Netanyahu arrives for a briefing near the Salem military post in the occupied West Bank on July 4, 2023. Photo by Shir Torem/Pool/AFP

Netanyahu, who was prime minister from 2009 to 2021 and from 1996 to 1999, also has one aim: to remain in power, especially as he stands trial for corruption. To do so he must not simply weather the protests but also keep his coalition together. On the surface, this should not be difficult. The current government is the most right-wing in Israel’s history. It boasts the most members living in settlements in the occupied West Bank of any previous coalition. It is the most theocratic, conservative and Orthodox; the government’s legislative agenda reflects this. Viewed within the context of the coalition agreements between the parties, the judicial overhaul as presented by Levin is the cornerstone of a right-wing, nationalist-populist revolution. The bills that stand to be implemented in tandem with or after the judicial overhaul would abolish nearly every fetter on the government’s power, further enshrine Jewish supremacy as a fundamental, “guiding and crucial” value in state policymaking, and pave the way for the annexation of the West Bank. 

[See also: Dangerous minds]

Yet for all the governing coalition’s ideological compatibility, it is not a monolith. The right-wing populist Likud, the hardline settler Religious Zionism, the extreme right Jewish Power, the Sephardic ultra-Orthodox party Shas, and Ashkenazi ultra-Orthodox party United Torah Judaism – these parties that comprise the coalition represent different constituencies, each with distinct sets of interests. Netanyahu’s political longevity and the ultimate success of the right-wing overthrow of the judiciary both depend on the durability of this coalition. To neutralise the protests Netanyahu may need to reach a compromise with the opposition, but too much compromise could jeopardise the coalition on which his political life depends.

At the vanguard of the initiative to overthrow Israel’s constitutional order is the religious Zionist settler movement. Drafted in part by the Kohelet Policy Forum, a think tank dominated by settlers and funded by US billionaires, the judicial overhaul plan is the culmination of the settler movement’s almost two-decades-long struggle to attain control of the Israeli state. It is the endpoint of a long march through the country’s institutions, motivated, in large part, by revenge for Israel’s 2005 unilateral “disengagement” from the Gaza Strip, in which thousands of settlers there were evicted. In the eyes of the settler movement, a government led by Ariel Sharon, a lifelong hawk and early champion of the settler movement, was not supposed to have relinquished part of the Land of Israel. The Israeli Jewish public was not supposed to have watched from the sidelines as the settlers in Gaza were pulled from their homes. The secular Israeli state, in the religious Zionist political theology, was supposed to be an instrument of divine will, the “dawning of the redemption”. After 2005, it seemed this vision had faltered.

For the settler movement, the disengagement prompted a crisis of faith in the Israeli state and a recognition that it would need to find a new strategy. Securing ministerial appointments and directing funds over the “Green Line” into the occupied territories would not be enough to prevent another, bigger “disengagement”, in the event of an Israeli withdrawal from the West Bank. In the years after 2005 the settler right thus pursued two new parallel strategies, one entryist, one Gramscian. Devotees of “Greater Israel” would now no longer confine themselves to religious Zionist parties but seek election on the lists of parties across the right and centre right, especially Likud. At the same time, and more importantly, the settler movement directed its energies towards gaining a foothold in the army, the media and the police, where its representation had historically been less robust. It established pre-military academies in West Bank settlements where religious Zionist youths are encouraged to enter the army officer corps; today, while exact numbers are hard to come by, some 40 to 50 per cent of brigade commanders are religious Zionists. In the public sphere, a cohort of young, male religious Zionist journalists are among the most prominent figures on Israeli TV news.

Tens of thousands of young religious-Zionist men and women march through the capital into the Old City of Jerusalem waving Star of David flags. Photo by Eyal Warshavsky/SOPA Images/LightRocket via Getty Images

The dismantling of the judiciary was to be, and may yet prove to be, the last step in the settler movement’s thrust for state capture. Yet the aim of state capture is not merely power. It is the perquisite for the settler movement’s ultimate goal: the formal annexation of the entirety of the West Bank, the expulsion of the Palestinians who resist the application of Israeli sovereignty, and, for the movement’s religious hardliners, the transformation of Israel into a halakhic state, a Jewish theocracy. Theirs is both a restorationist and an eschatological vision: annexation as a means of putting the Israeli state back on track as an instrument of redemption, and of hastening the onset of the messianic age.

There are many in Likud who share the settler right’s territorial-maximalist commitments; Levin was once chairman of the Greater Israel caucus. But today Likud operates according to a more personalist logic. Once Israel’s national-liberal party, Likud has over the past half-decade, with Netanyahu at its helm remade itself in its leader’s image. It is now a thoroughly right-wing populist party defined by its cadres’ almost cult-like veneration of Netanyahu. The animus that Likud members express towards institutions like the courts and the media draws from deep wells of resentment toward Israel’s old elite; for many in Likud, the judicial overhaul is a battle in the conservative class war that pits the Mizrahi (those from the Jewish diaspora in the Middle East and North Africa) working and middle classes represented by Likud against Israel’s old elite, its own WASPs – the white, Ashkenazi (northern European diaspora), secular, progressives who have long been in control of its institutions. Yet one more proximate impetus for the attacks by Netanyahu and his party on the judiciary is the prime minister’s ongoing corruption trial. Netanyahu and his allies have framed the trial as an attempted putsch by unelected judges against the popular head of government.

But if Netanyahu’s political survival largely determines Likud’s political calculus, the party also seeks to entrench its long-running dominance of Israel’s political system. The last half-decade has been marked by instability and five rounds of elections in as many years; in 2021 a fractious coalition spanning secular civil libertarians, unreformed hawks and moderate Palestinian Islamists briefly dethroned Netanyahu and Likud before collapsing in late 2022. Like Netanyahu and his family, many of Likud’s supporters experienced the short hiatus from power as a kind of trauma. Netanyahu and his allies advanced the argument that the governing coalition that had unseated him was illegitimate, that no government without Likud could ever be legitimate.

Viewed against this backdrop, Likud’s aim with the judicial overhaul is to make it impossible for the party to lose power again. Israeli philosopher Assaf Sharon has suggested that the overhaul should be understood as an attempt to transform Israel into a party-state, a “hollow democracy”, along the lines of what Viktor Orbán has done with his Fidesz party in Hungary, what Jarosław Kaczyński has done with his Law and Justice party in Poland, and what Recep Tayyip Erdoğan has done with his Justice and Development party in Turkey. By assuming control of institutions such as the judiciary, and clamping down on civil society and the opposition, Likud and its allies aim to restructure the state’s constitutional framework to guarantee their power in perpetuity. Parliament will still meet, elections will still take place, simply without any real possibility that the right might lose power.

Netanyahu, however, is a shrewd and cautious politician who almost certainly would have preferred for the overthrow of Israel’s constitutional order to have proceeded with much less gnashing of teeth. As much as his incitement against the judiciary has proved politically useful as agonistic glue for the right-wing coalition, Netanyahu is dispositionally inclined more towards stability than to the chaos of anti-liberal revolution favoured by some of his coalition partners. Nor does he share their messianism. In fact, it is not at all clear that Netanyahu shares their sense of urgency that the judicial overhaul must go through now. He may believe that it is more useful as a sword held over the neck of the opposition, and over the court that could determine his fate in his corruption trial, than as an actually implemented set of policies.

[See also: Why Israel is stuck with Benjamin Netanyahu]

Likewise, the remnants of the business-friendly and more establishmentarian factions of Likud have been frightened by the economic ramifications of the protracted political crisis. The flight of capital appears no longer a threat but a reality; high-tech company founders and employees are over-represented among the leaders of the protests and have begun to move their businesses out of the country. There is a possibility of a downgrade by credit-ratings agencies. The shekel has been weakened. According to an estimate in Haaretz, the crisis has cost Israel’s economy more than 150 billion shekels (£32 billion). It is still unclear whether there is a cost so high that Netanyahu will face pressure from within his own party to staunch the financial bleeding by putting the judicial overhaul on hold. It is also unclear if he can do this without losing support from the settlers and right-wing hardliners who dream of dealing a knock-out blow to the court.

Then there are the Haredi, or ultra-Orthodox, parties in the coalition. Unlike the religious Zionists, who aim to take control of the state, or the Likudniks, who hope to never lose an election again, the Haredi parties mainly want to secure increased government funding for their educational institutions and guarantee that the army will not draft ultra-Orthodox young men. The state budget passed by the government in May largely achieved the former: reportedly, the new budget more than triples state-funding for Haredi schools. But what the Haredi parties want most is what they have yet to achieve: legislation that formally exempts Haredi men from Israel’s mandatory military service (religious women are already formally exempt). Above all else, it is the pursuit of this goal that has brought the Haredi parties to support the court overhaul. 

More than once, Israel’s judiciary has struck down attempts to grant formal exemptions from army service to Haredi students on the grounds that such legislation was discriminatory. For this reason, the Haredi parties have pushed especially hard for the “override” bill, one of the larger judicial overhaul’s most aggressive components, which would enable parliament to re-legislate bills struck down by the court. The override clause, the Haredi news site Kikar Shabbat reported earlier this year, was “to serve as a defensive apparatus in the event that the draft exemption law is struck down by the court”. Yitzhak Goldknopf, the minister for housing and chair of United Torah Judaism, has said in interviews that a draft-exemption bill “is a necessary condition” for his party’s continued support for the government, accompanied if needed by the court override measure.

With the mid-June collapse of the negotiations overseen by the president, Netanyahu’s government has begun to pass the constituent parts of the judicial overhaul “salami style” – slowly, bit by bit. Many observers had expected this to be Netanyahu’s strategy from the start, since the passage of bills that appear, on their own, to be small or technical makes it harder for the opposition movement to mobilise. After an experiment with the legislative blitz, Netanyahu appears to have returned to form. Yet it remains unknown just how far Netanyahu, having restarted the legislative process in recent weeks, will go. Much will depend on whether the protest movement can continue to raise the cost of implementing the judicial overhaul, such that Netanyahu must freeze it once again to avoid more disruptive civil disorder. Much will also depend on whether he can find partners willing to compromise within his coalition.   

Because the settler movement is operating with a far-reaching plan in mind, a segment of its representatives may be amenable to passing some of the judicial overhaul now and saving the rest for later. In an interview with the right-wing Jewish JNS website, Moshe Koppel, a settler founder of the Kohelet Policy Forum, laid out his long-term strategy. “From a demographic standpoint it seems like the right is only going to get stronger,” he said. “If this necessary reform doesn’t happen this time… it’ll happen in two years or four years or five years.” Still, a delay would also require that Netanyahu appease the religious Zionists another way. He has already provided a glimpse of what that might look like. In March, after Netanyahu announced the temporary freeze on the judicial reform, he granted the Jewish Power party leader Itamar Ben-Gvir authority over a soon-to-be-established “national guard” to mute Ben-Gvir’s threats to leave the government in protest. If Netanyahu chooses to proceed with a truncated version of the judicial overhaul, the continued support of Ben-Gvir and the Religious Zionism party leader Bezalel Smotrich would probably come at the cost of even greater increases in settlement construction and the formalisation of illegal outposts in the West Bank.

It will be harder to placate the Haredi parties without dealing with the issue of draft exemption. For this reason, Benny Gantz, who leads the opposition centre-right National Unity party, has banked his political future on peeling Shas and United Torah Judaism away from the right-wing coalition by promising a compromise on the draft. For much of Israeli history, the Haredi parties acted as equal opportunity political kingmakers, joining Labor and Likud coalitions alike to secure their constituents’ interests. Yet over the last decade and a half that Netanyahu has led Likud, the Haredi parties have become the Israeli right’s “natural partners”, as the prime minister calls them. They may be more willing to countenance disappointment with the current Netanyahu government than their leaders let on. The anti-clerical, anti-religious rhetoric of the protest movement in the street has also turned the Haredi parties and the movement alike against a Gantz-orchestrated compromise. Even if he could entice the Haredi parties, he might struggle to convince some of the other opposition parties to join him.

The Israeli political situation is now characterised by a tumultuous stalemate. If Netanyahu’s government presses on with the judicial overhaul, the protests will mount and the political cost to his government will increase. Yet as the political cost increases and the parties of the right-wing coalition fall in the polls – currently they are far behind the parties of the opposition – each become less willing to take the risk of pulling out of the government and triggering new elections. It is this dynamic that is perhaps Netanyahu’s greatest asset. The fear of losing power may work to keep his coalition partners in line if he pauses the judicial overhaul again. If that enables him to neutralise the protest movement’s momentum, he will have won. For now.  

[See also: We are watching Israel build an authoritarian regime in real time]

Content from our partners
What you need to know about private markets
Work isn't working: how to boost the nation's health and happiness
The dementia crisis: a call for action