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Thursday Newsletter 3/30/2023

Dear Reader,

After Israeli Prime Minister Benjamin Netanyahu dismissed his defense minister for calling for a halt to government plans to gut the power of Israel’s judiciary, hundreds of thousands of Israelis took to the streets, participating in spontaneous mass protests and setting bonfires in the street. The next day, after a general strike brought the economy to a halt, Netanyahu backtracked, announcing the Knesset would not vote on the first part of his government’s judicial overhaul plan and that he would instead engage in negotiations with the opposition to forge consensus.

For this week’s installment of our podcast On the Nose, Jewish Currents editor-in-chief Arielle Angel spoke with senior reporter Alex Kane, contributing editor Joshua Leifer, and contributing writer Elisheva Goldberg. They talked about how anti-occupation activists are relating to the mass protests, why the Israeli right is so intent on curbing judicial power, and the future of Netanyahu’s coalition. You can listen to the entire episode here, and check out a brief excerpt from the transcript below.


The Editors

Israeli anti-judicial overhaul protests confront the Israeli police as officers use a water cannon in Tel Aviv on March 27th.

Gili Yaari/NurPhoto via AP

Arielle Angel: The very politically confusing Compact magazine just published a piece by Liel Leibovitz of Tablet, saying the [judicial overhaul] is the will of the people. You hear this argument a lot: “The court is unelected; it controls itself. Who are these [protestors] really? They’re an elite group, [and] focusing power within the legislature is the most democratic path forward.” The editors of Compact, on Twitter, are getting the expected backlash to publishing the piece. One editor cited the fact that many Americans on the left think of our Supreme Court as a kind of undemocratic body that is not accountable and has lifetime appointments. I wanted to put that to this group and see what we make of that.

Elisheva Goldberg: The central problem in Israel right now is that the right does not trust its own checks and balances. It doesn’t trust the Supreme Court one whit. That’s an old problem, and it’s an Ashkenazi elitist problem from the founding of the state. There’s a legacy of elites electing elites electing elites. The first Sephardi judge was elected in the early years of the state; his chair became what’s now known as the Sephardi chair. It was tokenism. And the same is true for the Arab seat on the Supreme Court. There are 15 seats; one belongs to an Arab. That’s not representative of Israeli society, and it’s indicative of the fact that for a long time, Ashkenazim were appointing Ashkenazim. But that has not been true for decades at this point, and the purported backlash of the right against the court is a memory of a frustration that comes from decades before.

Ayelet Shaked was the Justice Minister in 2015 and appointed conservative justices to the entire system. We’re talking about hundreds of judges that she appointed, or that she pushed through the system to get appointed. There are justices on the Supreme Court right now who are settlers, who are “conservative” in their outlook—in other words, non-interventionist, which is the way that the nomenclature works in Israel’s, and also America’s, legal jurisprudence. But I think that there’s a kind of hold over anger. And it’s not wrong, or at least it wasn’t wrong until, say, 2017. But the court has since become afraid of its own shadow. There’s been a step away from interventionism. There’s been a pull back from anything that would put it in conflict with the Knesset, and that’s because in Israel there’s only one check on the power of the legislature.

In America, we have a federalist system: There are state governments that check the power of the federal government. There are two legislative bodies that check each other before it even gets to the Supreme Court, as well as an executive that is often in conflict with those. those are just a few of the checks and balances that you have in the United States that you do not have in Israel. And so you have a much quicker slide towards majoritarianism in Israel once the Supreme Court is out of the way. If there’s an override bill passed that allows the Knesset to reinstate laws that were passed and then struck down by the Supreme Court, you’re a hop skip and a jump away from majoritarian rule.

Joshua Leifer: I do think that the parallel to the American context is a bit uneven, because the left position on the judiciary in America is both that the Supreme Court is an elite undemocratic body and that we probably have enough support within the majority to do the thing that we want to do. It’s not the case that the majority of Israelis would support an equality basic law—a law with constitutional status that would formally guarantee equality for all of its citizens. It would be very, very hard to pass that through almost any configuration in the Knesset that we can currently imagine. And part of what the constitutional revolution of [Israeli Supreme Court president Aharon] Barak intended to do was to try to find a way to begin that process of recognizing the limits of what can be achieved in terms of majoritarian democracy.

I do think it’s important to note that Barak’s interpretive shift did produce anger and resentment, but it was nowhere near as controversial at the time as it has become. I think that part of that has to do with the way that, rather than the court generating right-wing populist backlash, it’s been recast as additional evidence of a right-wing populist backlash that was already in process. Now, the court is basically ammunition, supporting the change that the right has been trying to carry out for a very long time vis-à-vis annexation and transfer, whether or not Barak decided one way or another in a court decision.

And so there’s a risk, I think, in American liberals saying, “Well, because I critique the Supreme Court in America, I have to critique it in Israel on first principles.” I think the contexts are different enough that it’s not really possible to divine a position based on first principles here.

Alex Kane: Well, the US has a constitution and Israel doesn’t, which is the fundamental difference.

JL: Right. Let me just put it in very provocative terms: Imagine if the Dred Scott decision was still on the books, and then the American public said, “We’re going to decide the issue of slavery via majoritarian decision.” Slavery would have been ratified at the time. That’s the state of majority public opinion in Israel on the issue of equality for all people living between the river and the sea. I’m not saying that slavery and occupation are the same—but it’s comparable in terms of the mental shift that would be required in order to have the conversation about weighing majoritarianism versus principles of judicial intervention. Israel hasn’t established that equality among people is good.

America’s Constitution begins, “We the People.” One of the things that’s very striking when you read the drafts of the Israeli constitution that were written in 1950 is that the proposed version of Israel’s constitution began with “the Jewish people.” The ethnos was imagined as the demos from the beginning.