What the Battle Over Judicial Reform in Israel Is Really About | Opinion

In Israel as in states throughout the Western world, the political Left is an ecosystem of power, and not merely a political camp. It starts with the parties of the center- and far-Left. But it encompasses far more powerful institutions and actors, as well. These include the universities, the vast majority of media organs, most of the entertainment industry, and much of the economic elite. The Left also comprises the senior ranks of the security establishment—represented most clearly by politically active retired generals.

The most powerful component of the Left's ecosystem in Israel is the legal fraternity, which is comprised of the Supreme Court, the attorney general, the state prosecution, and the legal advisors to the Knesset and the government ministries.

Despite its control over vast power sources in Israeli society, the Left does not control the Israeli people themselves. A significant majority of Israelis define themselves as right-of-center. In the last elections, right-of-center parties won 64 seats in Israel's 120-seat parliament, the Knesset. The Left's parties won a mere 46 seats. The other 10 seats went to two anti-Zionist Arab parties, which are supported by, but are not constituent parts of, the leftist ecosystem.

For the first three decades after Israel won independence in 1948, the Left held all levers of political power. The Labor Party controlled the government and the Knesset. And its loyalists controlled the Left's nonpolitical ecosystem. When, under Menachem Begin, the Right won its first electoral victory in 1977, Begin disappointed his loyalists and opted not to replace Labor's apparatchiks in the public sector, the Israel Defense Forces, the legal system, and state media with his own. Begin's refusal to bring in his own people was a source of rancor, but when viewed in its historical context, his decision had its merits. Labor's apparatchiks were old-left socialists, ideologically, but they were experienced in the ways of governance and they were patriots. True, they despised Begin, but they loved Israel. Leaving them secure in their positions may have made them political thorns in Begin's side, but it didn't harm the national interest.

Begin would probably have acted differently today.

Like the Left throughout the Western world, over the past 30 years, Israel's Left has abandoned labor union politics for cultural Marxism and post-nationalism. Its new globalist ideals render the Left's constituent parts contemptuous, and increasingly hateful, of Israel's nationalist majority.

In the decades since Begin opted to leave the Labor apparatchiks in place, their post-nationalist successors have formed an oligarchy whose power sits beyond the reach of the elected Israeli government. Its members, particularly in the legal fraternity, have seized more and more executive powers away from the government, and more and more legislative powers away from the Knesset. For the past three decades, government lawyers have killed government decisions and legislative initiatives, before they were off the drawing board, by proclaiming them "unreasonable" or "legally problematic" (as opposed to illegal).

When the government and Knesset chose to disregard the unsubtle orders from their unelected lawyers, the Supreme Court pounced. The justices haven't flinched from abrogating the government's actions; and more often than not, the justices have based their decisions not on statutory law, but on the extraordinarily vague "reasonableness" rationale that has enabled them to strike down laws and lawful government actions simply by deeming them "unreasonable."

Today, led quite openly by Israeli Supreme Court Chief Justice Esther Hayut and her predecessor, Aharon Barak, the Israeli Left is in open rebellion against the Netanyahu government and its plans to reform the judicial system. Buffeted and sometimes led by a media that has abandoned all pretense of dispassionate journalism for propaganda, some on the Left—including the mayor of Tel Aviv—have outright called for civil war. Others have deployed a combination of riots, protests, boycotts, highway blockages, and lawfare in a bid to paralyze and intimidate the Netanyahu government into standing down.

The Netanyahu government's program for judicial reform is astounding for its modesty. If passed in full, it will simply realign Israel's currently unchecked judiciary with the checked judiciaries of the vast majority of Western democracies.

Israeli Prime Minister Benjamin Netanyahu chairs a
Israeli Prime Minister Benjamin Netanyahu chairs a cabinet meeting at the prime minister's office in Jerusalem, on February 23, 2023 RONEN ZVULUN/POOL/AFP via Getty Images

The judicial reform package's main components are: placing judicial appointments under more political control; requiring justices to base their judgments on the law, rather than the malleable veneer of "reasonableness"; banning the Supreme Court from amending or overriding Israel's Basic laws, which form the basis of Israel's quasi-constitutional rule of law; and placing constraints on the Supreme Court's power to abrogate laws duly promulgated by the Knesset, while providing the Knesset with a mechanism for overriding the Court's decisions.

The final clause of the government's reform package stipulates that the attorney general's opinions do not bind the government that he ostensibly serves.

While the Left has managed to engender a sense of chaos, the situation in Israel is actually far more stable than it appears. The Left's riots will continue so long as the billionaire funders in Israel and abroad send their checks. But the legal reform will be passed into law and implemented.

Any doubt that this would occur was dispelled two weeks ago, via a strategic intervention by Israeli President Isaac Herzog. Although the position of Israeli president is a largely ceremonial post, two weeks ago Herzog inserted himself into the middle of the debate. In a primetime address, Herzog set out his own proposal for judicial reform. A former head of the Labor Party and the son of Israel's sixth president, the late Chaim Herzog, Isaac Herzog is a scion of the leftist establishment.

Herzog's proposal involved fewer limits on the Court's powers than the government's proposal. But his intervention was important—indeed, it was decisive—for three main reasons.

First, Herzog's proposal is predicated on both recognition and opposition to the fact that today, Israel's Supreme Court has no checks on its power whatsoever. To restore and safeguard Israel's democracy, the Israeli Supreme Court must cease to operate as a self-perpetuating judicial oligarchy.

Second, Herzog's proposal recognizes the fundamental legitimacy of the political Right. Knesset opposition leader Yair Lapid and his partners have so far refused to follow suit; as far as they are concerned, the Israeli people's vote last fall to restore Netanyahu to power was no more than an arbitrary moment, and far less legitimate than the unmoving positions of the nation's ruling elite.

Finally, Herzog's intervention gave cover to leftist politicians and luminaries who, like him, are willing to work with the Netanyahu government to reach a workable compromise on legal reform. Despite public denials by various opposition politicians, following Herzog's speech, prominent leftists have been meeting behind the scenes with Justice Minister Yariv Levin, Chairman of Knesset Law, Constitution, and Justice Committee Simcha Rothman, and their advisors, in order to bridge differences.

And those differences are not all that large. Nearly every single leading politician on the Left—including Lapid himself—has put forward a program of judicial reform similar to the Netanyahu government's plan. Back in 1994, Herzog's father, then-President Chaim Herzog, also called for constraining judicial power.

At the end of the day, the fight over judicial reform in Israel isn't about judicial reform at all. It is about the radical Left, and its refusal to accept the validity of democratic outcomes when its side loses. The Netanyahu government will win because, despite the fact that the radicals have taken over the leftist ecosystem, enough old-left Zionists are still around to work with their counterparts on the Zionist Right and cut a deal.

Caroline B. Glick is a Newsweek columnist, the senior contributing editor of Jewish News Syndicate, and the diplomatic commentator for Israel's Channel 14. She is also the author of The Israeli Solution: A One-State Plan for Peace in the Middle East, (Crown Forum, 2014). From 1994 to 1996, she served as a core member of Israel's negotiating team with the Palestine Liberation Organization.

The views expressed in this article are the writer's own.