As Benjamin Netanyahu’s new government places the Israeli Supreme Court in the crosshairs, concerned supporters of Israel, from the Biden administration to American Jewish communal organizations, are raising the alarm about the implications that attacks on Israel’s independent judiciary carry for the country’s democracy, and for the persistence of a bilateral relationship built on shared values.
Unease on this side of the Atlantic about Israel’s institutional malaise echoes the chants of protesters who turned out the last two weeks on streets of Tel Aviv and other cities to rally against the so-called “judicial reforms” that would subordinate the court to the Knesset, eroding a major check on government power in the Jewish state.
While the attention being paid to Israel’s democracy is well placed, a key context must be emphasized: namely, the Israeli-Palestinian conflict.
Israel’s democratic decay cannot be discussed without mentioning the Palestinian conflict. The Supreme Court is a critical pillar of Israeli democracy, but it is not the only one. Why, then, have would-be authoritarians and theocrats in the coalition taken aim at it first? Why not start with the parliamentary opposition or some other organ of the state?
The obvious answer is that the court, in particular, is widely viewed on the Israeli right as an impediment to Jewish settlement in the West Bank and to an expansive vision of Greater Israel.
The antagonism between the settlement movement, on the one hand, and the court, on the other, is not a new phenomenon. In 1979, the court issued an important verdict barring the establishment of settlements on private land in the occupied territories.
The ruling inflamed opinion among proponents of settlement in the West Bank and Gaza and divided Menachem Begin’s right-wing government, with the hawkish Ariel Sharon – then minister of agriculture – calling sarcastically to lift “the burden of having to make” such “political decisions” from the court and suggesting more directly that the justices “should not be dealing with settlements.”
This was one of the first episodes in what would prove to be an acrimonious relationship between Israeli jurists and Jewish settlers. There was the “judicial revolution” of the 1990s, in which the court under Court President Aharon Barak developed an approach more closely resembling judicial review in the U.S. and other countries – namely, the ability to strike down unconstitutional laws (or, in Israel’s case, the legislation that violated the quasi-constitutional Basic Laws).
As the court’s reach grew, so did the fears of religious Zionists and settlers that it would stand in the way of their goals.
When the court ordered the demolition of a synagogue built illegally in the Givat Ze’ev settlement in 2015, one opponent of the decision decried it, saying, “It’s inconceivable that a Jewish court will destroy a synagogue.”
Of course, the Supreme Court does not always default to the Palestinian position in a case, as advocates for the Palestinian cause will readily point out. But the mere fact that the court does not automatically accept the Jewish or Israeli side over Palestinian petitioners is enough to elicit indignant rage from many who want to erase the Green Line.
Neutralizing the court through legislation that would allow the Knesset to override its decisions would not be damaging only for Palestinian rights; it would limit the judiciary’s ability to protect individuals in Israel across a wide range of axes, whether religion, gender, ability, or age. But the Palestinian conflict is the primary reason the court became a target for the Israeli right in the first place.
The battle between the Knesset and the court is far from the lone arena in Israeli politics in which the side effects of the conflict can be felt today.
Talk of removing constraints on soldiers’ conduct in the field – and lifting punishments for those who run afoul of them – is another. The defense of rogue soldiers, whether Elor Azaria in 2016 or the soldier who harassed activists in Hebron late last November, also ties back to the conflict, in addition to having serious implications for the IDF’s chain of command and its moral underpinnings.
The question is whether Israel’s interactions with the Palestinians, either during military operations or along the Green Line, will be governed by laws or by impulse.
The new government is not leaving much open to interpretation here. Alongside its intentions for the court, the coalition also entered office following announcements of bold plans for legalizing hitherto unauthorized West Bank settlements. With the Supreme Court’s future on the line, it is important to shine a spotlight on the state of Israeli democracy, but failing to mention the context of the Israeli-Palestinian conflict leaves our comprehension of the stakes sadly incomplete.
Susie Gelman is the board chair of Israel Policy Forum, the U.S. organization founded in 1993 that supports a viable two-state solution consistent with Israel’s security
The High Court is more powerful and less restrained by checks than the United States Supreme Court, and can strike down laws that it finds merely “unreasonable” to approve or cancel government decisions and legislation.
Furthermore, Israel’s court even has a veto on the appointment of new justices, in contrast to the US where the President and Senate share the appointment power.
All branches of government need limitations on their power and without a constitution, the Israeli Supreme Court is no exception. Striking down laws which it feels are unreasonable brings it in conflict with the Knesset which reflects the desires of the Israeli populace. It’s not about Settlements, nor governing by impulse, which seems to be more apt to unrestrained Jurists than to the legislature which must face the wrath of the voters. Placing some reasonable limits on the court’s power is not an attack on democracy but rather a support of it.
The two state solution is dead. It died at birth. Pretending that Arabs want to live side by with Jews was never realistic. And denying Jews from living any place they want is wrong. Time for all of us to put the two state solution behind us in the dustbin of history where it belongs and look forward not backwards. What’s done is done.