Introduction

The Israeli judiciary has seen its share of change, both institutional and political. Based on the British model, the Israeli Supreme Court (ISC) started as an institution characterized by deference to principles of parliamentary sovereignty and legal formalism. However, starting in the 1980s, the ISC assumed greater authority and infused liberal values into its rulings. This transformation culminated in a Constitutional Revolution—when the ISC articulated for itself the authority to nullify legislation. Some legal scholars later argued that the ISC transformed itself into one of the most powerful supreme courts in the world and into “an alternative government” (Roznai 2018; Rubinstein 2006).

Defenders of the ISC claim that it adapted to the liberal zeitgeist at a time when the political system was divided and weak. The revolution, in their eyes, was a mere reaction to parliamentary action—legislation of two Basic Laws expressly protecting human rights and entrenching them in a constitutional manner. On the other hand, critics argued for a judicial overreach on policy salient issues assisted by the self-granted power of judicial review in blatant violation of norms in a country without a written constitution or a bill of rights.

Populist trends portrayed the ISC as part of a detached elite, bolstering the sentiment against the ISC and bringing about a political backlash. Most attempts in the last two decades to curb the power of the judiciary have failed. In late 2022 and early 2023, however, a proposed constitutional reform came closest to fundamentally altering the nature of the Israeli judicial system and, with it, the nation’s constitutional design. However, a popular movement opposing the reform and viewing it as a threat to the democratic system of government sparked a momentous civil uprising that swept the country.

In this chapter, we review the Israeli government system and, in particular, focus on its judiciary. Then we review important milestones in the evolution of the ISC and the political backlash it has inspired. Lastly, we present the details of the proposed constitutional reform, the fatal critiques it received, the unprecedented mobilization of civil society, and the protest movement that led to its, as of this writing, temporary suspension.

A Comparison of the Israeli and American Systems of Government

The Israeli and American systems of government, a parliamentary and a presidential democracy, respectively, are fundamentally different. Israel is a unitary system with a paramilitary government, and nationwide elections are held to a unicameral legislature—the Knesset (Rahat and Hazan 2005). The Israeli prime minister (PM) is the member of Knesset (MK) who succeeded in forming a majority coalition. According to the Israeli Basic Law: The President of the State, Article III, the Knesset also chooses the president every seven years to hold mostly ceremonial duties as the head of state (Maoz 1988). In contrast to the American “winner-takes-all election system,” closed lists of party candidates are elected in a proportional representation electoral system in Israel, augmenting the representativeness of the legislature (Carey and Hix 2011; Peretz 2018). However, the extreme multiparty system in Israel (as opposed to the American two-party system) has made the formation and maintenance of coalition governments more difficult (Rahat and Hazan 2005).

Due to the Israeli governmental and electoral systems, elected politicians must preserve loyalty to their party administration and party leader or to party members in case of primary elections (Bowler, Farrell, and Katz 1999; Gallagher and Marsh 1988; Rahat and Hazan 2005). As party leaders in the coalition often hold a ministerial role, the legislative branch remains somewhat subordinate to the executive (Sager 1985). In the US system, primary elections to Congress exacerbate political polarization, as active members of political parties often hold, on average, more extreme views than the median voter of the party (Burden 2001). This tendency is stronger in Israel, as “in closed-list systems, candidates are not directly judged by the electorate in the general elections” (Rahat and Hazan 2005, 344). Political polarization on one side and allegiance to the leader and party members on the other have led some Israeli politicians to decrease accountability to the public and focus on measures aimed at garnering media attention or serving narrow political interests.

The Israeli government lacks many of the checks and balances that characterize the American system. First, Israel is one of only a few countries without a written constitution (Oliver and Fusaro 2011). Instead, the country has a list of 13 Basic Laws (Maoz 1988). Unlike the US Constitution, the Basic Laws can be excepted, amended, and nullified by a plurality of votes in the Knesset (Ackerman 2016). Although the 1950 Harari Resolution explicitly stated that Basic Laws should be considered chapters of a future constitution, they are usually as loosely entrenched as any other law (Navot 2016). Besides a written constitution, other restraining mechanisms that are an integral part of the American system have no parallel in Israel. Inter alia, those include the bicameral federal legislature and the filibuster in the Senate and the requirement to pass every bill in both houses of Congress (Bondurant 2010; Fisk and Chemerinsky 1997; Tsebelis and Money 1997). Other restraining mechanisms are the state and local governments in the federal system, and the presidential veto on acts of Congress (U.S. Const. art. I, § 7).

The separation of powers in Israel is comparatively more fragile, as the functionalities and membership of the legislature and executive are not only intertwined but often overlap. Until recently, the government has mostly consisted of MKs. Unlike the American system of government, where membership in the legislature is structurally separate from membership in the executive, in the Israeli model, no such separation exists. Members of Congress are not allowed to be members of the cabinet, with the vice president of the United States playing largely a symbolic role in both the executive and the legislative branches. Conversely, in Israel, cabinet members are members of the Knesset, or at least have meaningful influence in the legislature. Israeli law now permits some of the ministers to temporarily resign from the Knesset as long as they are in office. However, as a resigning minister can resume their MK position at any moment at the expense of the new MKs, the latter is subject to even stronger party discipline. The ability to remove MKs who serve as replacements for the ministers can—and has already been—used as a sanction against MKs who fail to vote along party lines. Although parliamentary oversight of government activities does exist, the only tangible checks the Knesset is left with over the government are the ability to dissolve itself and the requirement of approving the annual budget or the ability to dissolve automatically (Maoz 1988; Roznai 2018). However, early dissolution of the Knesset is more often than not initiated by the government (Rahat and Hazan 2022), as it comes with a grave risk to the MKs, who might not get reelected. Finally, even basic supervising duties in parliamentary committees are not always fulfilled due to high workloads for the MKs.

On the other hand, the executive branch has powerful tools to control the legislature. For example, according to Israeli government bylaws, every bill must be approved by a committee of ministers for legislation, which has sealed protocols in order to gain the support of the coalition in the legislative process. Such support is the only tangible way to make it into a law. The coalition can also grant its members freedom to vote without regard to party lines, but this occurs only rarely (Trajtenberg and Popliker 2020). Coalition members who violate the decisions of the committee are subject to sanctions. The sanctions can be minor, such as a temporary ban from submitting bills, but they can be more substantial, such as removal from parliamentary committees and even limitations on future runs to the Knesset, pursuant to the Basic Law: The Knesset, Article 6. That means, effectively, that turning a bill into law must go through the screening process of the government.

A Comparison of the Israeli and American Judicial Systems

Two main checks are available to the Israeli judiciary on other branches—judicial review of legislation and administrative authority. The former is used for balancing the power of the Knesset by nullifying laws or articles of laws (Lurie and Shany 2019).^[1] The latter allows courts to oversee government agencies such as parliamentary and governmental actions but not laws (Zamir 1990). Another legal institution is counsel in the government. Counsels to all ministries are not appointed by the ministers but instead professionally answer to the attorney general of Israel, who must approve their removal if the minister so requests. The counsels serve as a government watchdog—their opinions are binding and can only be contested with the attorney general (Perleman 2011). Apart from heading the legal counseling, the attorney general monopolizes the legal representation of the government and heads the public prosecutions (Ben David 2008). The government appoints the attorney general, but only from a list of candidates recommended by a special independent committee.

Like the American judicial system, the Israeli system has been deeply influenced by its British origins (Edelman 1992; Gutmann 1988) and still abides by the common law tradition where legal precedent and stare decisis are key (Friedmann 1975). However, the power of judicial review on legislative acts is a deviation from the British tradition (Delaney 2014; Elliott 2004) and was articulated in both the American and the Israeli judicial systems in all judicial instances by their respective supreme courts (Marbury v. Madison 1803; United Mizrahi Bank v. Migdal Cooperative Village 1995)

Another principle common to both judicial systems is judicial independence. In Israel, judicial independence was etched into law in 1984 in the Basic Law: The Judiciary, which we refer to in this chapter as the Basic Law. The Basic Law also sets a few practical mechanisms to ensure judicial independence, such as certain protections from demotions, transference to other courts, and cuts in wages and retirement funds. The Basic Law also determines that a judge can be removed from office only by a decision of the Judicial Disciplinary Court or by a vote of the Judicial Selection Committee, with a majority of at least seven out of nine. This strictly regulated removal procedure of judges ensures that the process is not controlled by political figures, as in both the selection committee and the disciplinary court, legal professionals form the majority of members.

Like the differences between the systems of government in Israel and the United States, the disparities between the Israeli and American judicial systems are also numerous. First, the judicial selection processes are different. In Israel, the selection process emphasizes legal professionalism and was designed to avoid the dominance of political players. The Judicial Selection Committee, established in 1953 after the enactment of the Israeli Law of the Judges consists of nine members, as regulated by Article 4 of the Basic Law—the ISC chief justice; two associate justices appointed by the justices themselves; the minister of justice, who heads the committee; another minister appointed by the government; two members of the Knesset; and two members of the Israel Bar Association. In order to minimize the effect of party discipline, the Israeli law of the Courts prescribes that representatives of the Knesset and the Bar Association are elected in internal and confidential elections. The common practice in the Knesset is to appoint a coalition representative and an opposition representative, but this norm is not always kept (Movement for Quality Government in Israel v. Speaker of the Knesset 2020). Overall, four elected politicians and five legal practitioners serve on the committee, which reviews and selects judges at all levels of the judiciary but with different selection mechanisms. Judicial positions on the lower courts (the magistrate courts; courts for family law, traffic law, employment and labor law; the district court; and court of appeals ) must be approved by a simple majority. However, according to the Law of the Courts, the majority needed to select an ISC justice is seven out of nine members of the committee. In the US, the chief justice is appointed and confirmed in the same manner as any other Article III judge. The president nominates, and the Senate confirms (Supreme Court of the United States 2024). Conversely, the Israeli chief justice is formally selected by the selection committee, but in practice, elevation to the position of primus inter pares is based on seniority (Edelman 1992).

The judicial systems also differ in the rules and procedures of the respective supreme courts. As defined by the US Constitution, the US Supreme Court has original jurisdiction, which means the Court can review the case in the first instance and not by appeal “in all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party” (U.S. Const. art. III, § 2, cl. 2.). In Israel, Article 15 of the Basic Law defines the original jurisdiction of the ISC more generally. It states that the ISC, in its role as High Court of Justice (HCJ), can deliberate in “matters in which it deems it necessary to provide relief for the sake of justice”. Unlike the US Supreme Court, the original jurisdiction of the HCJ is exclusive, as Article 15 of the Basic Law states that it may be applied only in matters that “are not under the jurisdiction of another court or tribunal” (The Judiciary Act 1789). As for the appellate jurisdiction, the Basic Law determines its absolutism. While the US Congress may alter the appellate jurisdiction of the US Supreme Court (U.S. Const. art. III, § 2, cl. 2.), it is legally impossible for the Knesset to constrain the jurisdiction of the ISC, including its appellate jurisdiction, short of amending the Basic Law.

The Israeli Supreme Court is also different from its American counterpart in its docket and panels. While the US Supreme Court has discretionary power over its plenary docket, with only a small share of cases selected for full plenary review (since the end of the 1980s, approximately 1% of petitions for review a year), the Israeli Supreme Court has a near-mandatory docket (Sommer 2010a, 2011, 2014; Weinshall, Sommer, and Ritov 2018). Accordingly, there are significant disparities in caseloads—while the US Supreme Court usually hears 70–250 cases a year (Epstein et al. 2015). As for the ISC, it handed down more than 16,000 final decisions from 2010 to 2018 (Weinshall and Epstein 2020).

These disparities have consequences, as high caseloads may minimize the number of important cases reviewed (Eisenberg, Fisher, and Rosen‐Zvi 2012) and the availability of resources for each case (Sommer 2010b, 201). One way of handling high caseloads is by varying panel sizes. The ISC consists of 15 justices, but similar to federal circuit courts in the United States, most cases are not decided en banc but rather in panels. The vast majority of cases decided on the merits of the ISC are heard by a panel of three. By law, the chief justice determines the panel composition, and they can also decide to extend a panel up to a size of 11 justices (Weinshall, Sommer, and Ritov 2018). Additionally, according to the Law of the Courts, the panel itself can decide that it must be extended for the remaining deliberations. Such panel expansion happens in cases deemed particularly consequential (Sommer 2009, 2010a). The power of the chief justice to determine the size and composition of panels is of major importance, as it impacts judicial behavior. For example, large panels reduce the effect of registering dissenting opinions and can reduce the likelihood of collegial ruling (Weinshall, Sommer, and Ritov 2018).

The Evolving Role of the Judiciary in the Israeli System of Government

The role of the ISC and its centrality in the Israeli system of government has evolved through the years, both at the practical level and in the political discourse. With the foundation of Israel in 1948, the young state inherited many of the characteristics and institutional setups of the British system (Friedmann 1975; Maoz 1988). Furthermore, Israeli leaders were inspired by British political and constitutional principles, such as parliamentary sovereignty and the lack of a written constitution (Ackerman 1990; Hirschl 2009). Religious cleavages regarding the character of the Jewish state and the raging Arab–Israeli War further delayed the drafting of a formal constitution (Hirschl 2001). Eventually, the constituent assembly of Israel turned itself into the first Knesset and embarked on a regular legislative process (Ackerman 1994). This development reflected a reluctance on the part of Israeli political leadership to write a constitution and a bill of rights, which would entail delegating authority to the judicial branch (Hirschl 2001). Constitutions often constrain the power of government. Unlike the restrictive nature of most constitutions, some of the Basic Laws endowed the elected branches with a broad sphere of influence, significant authority, and freedom of action (Barzilai 1997).

In Israel’s first decades, the ISC was largely deferential to the loose constitutional structure of the state. Accordingly, the court was cautious regarding intervening in government actions and protecting human rights (Barzilai 1997; Maoz 1988). The ISC did recognize some civil rights in its rulings, like freedom of speech in Kol Ha’am Co., Ltd. v. Minister of the Interior (1953), but it was limited and scanty (Kretzmer 1992). Since the 1970s, this stance gradually shifted as the ISC expanded its recognition of human and civil rights that were not entrenched by the legislature (Lahav 1993; Segal 1992). Moreover, the ISC adopted or expanded several legal doctrines that tilted the balance of power between the judiciary and other government branches and increased judicial activism. First, the Standing Doctrine was considerably broadened in the 1980s and allowed petitioning the HCJ without direct and personal interest in the issue, which led to an inflated docket. Likewise, starting in the 1980s, justiciability was largely expanded. Consequently, most issues became justiciable, even in matters that were politically contentious. Furthermore, the Reasonableness Doctrine and the Proportionality Test granted vast administrative authority to the ISC (Mautner 2018; Meydani 2011).

Further evidence for the changes the ISC has gone through can be found in the articulation of its rulings. In its early days, the ISC had stuck by some form of legal formalism that emphasized the importance of legal norms. However, since the 1980s, the ISC has infused liberal values into its reasoning and given more weight to the social consequences of its rulings (Mautner 1992). The new and empowered institutional role of the ISC had also been recognized by the general public, and that recognition was reflected in the growing number of petitions to the HCJ. This growth may be partly attributed to the expansion of the Standing Doctrine, but the rise of political and social polarization and instability since the 1980s also contributed to that process. While public trust in political institutions took a downward turn, the judiciary was perceived as trustworthy (Barzilai 1997).

Apart from the judiciary, the legislature also took steps toward the absorption of liberal values in Israeli society. Most significant in this respect was the passage of two Basic Laws—Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. Those laws were revolutionary in more than one way. First, they constituted the first major legislative entrenchment of human rights, albeit partially (Barzilai 1997). Second, both laws include a restrictive clause stating they are “not to be violated, save by a law that corresponds to the values of the State of Israel, which is designed to serve an appropriate purpose, and to an extent no greater than required.” This led Justice Aharon Barak to determine that those laws grant the ISC the authority to nullify legislation that violates protected rights and named this development the “Constitutional Revolution” (Barak 1992). However, the power of judicial review was not expressly given to the judiciary and was merely theoretical until 1995.

In the United States, the Court articulated to itself the power of judicial review in 1803 in Marbury v. Madison (Hobson 2005; Nelson 2018). Such power was not vested by the Constitution (Graber 2002). The Israeli Marbury moment came in 1995 in United Mizrahi Bank v. Migdal Cooperative Village (1995). The ISC authorized judicial review in cases of contradiction between legislation and the Basic Laws of 1992 (Mautner 2018). Chief Justice Barak referred to the ruling as a “defining moment” in which “you interpret the historical process which led to the legislation of the Basic Laws and infer from it the existence of a constitution” (Shavit 2008).

Mizrahi was not the first time that the ISC recognized its power to nullify legislation. As early as 1969, in Bergman v. Minister of Finance (1969), the ISC determined the Knesset Elections Law null and void, as it was contradictory to Article IV of the Basic Law: The Knesset. However, the reasoning was technical rather than substantive, as the approval of the bill lacked the necessary majority (Meydani and Mizrahi 2010). Article IV of this Basic Law was entrenched and could be changed only by a majority of MKs, so the justices ruled that any law that contradicts that article should be passed by such a majority. In following decades, other rulings followed Bergman to nullify laws on the same basis (MK Rubinstein v. Chairman of the Knesset 1995). Mizrahi was also not the first to acknowledge human rights. Since its early days, the ISC established and protected basic rights, even though they were not entrenched by law, like freedom of movement and freedom of speech (Barzilai 2010; Kauffman v. the Attorney General 1953; Kol Ha’am Co., Ltd. v. Minister of the Interior 1953). However, those rights were not considered constitutionally entrenched, as the legislature could still restrict them (Kretzmer 1992). That said, the Constitutional Revolution was radical as it shifted the judicial scales dramatically. In the words of Meydani, “The relationship and the institutional equilibrium between the Court and the parliament were significantly transformed, thus enabling an informal institutional change regarding the rule of ‘who governs?’ in controversial issues” (Meydani 2011, 3).

The shift was so profound that numerous legal scholars concluded the Israeli Supreme Court to be one of the most activist and powerful worldwide (Mautner 2011, 2018; Roznai 2018). Israeli constitutional law professor Amnon Rubinstein even stated that under Chief Justice Barak, “the Court has turned itself into an alternative government” (Navot 2017, 480) .

The rise of the judiciary in Israel was a part of a broader global trend (Barzilai 2014). Underlying reasons for that transformation include the relative weakness of the political sphere and major public support for the ISC in the 1980s. Additionally, American influence led to social acceptance of liberal norms (Barzilai 1997; Kedar 2002). Some scholars argue that renouncing the principle of parliamentary sovereignty and delegating authorities to the judiciary were driven by political elites who were unwilling to share their vast powers (Hirschl 2009).

The 1980s were characterized by the declining hegemony of the secular Ashkenazi elite. In a political backlash, this elite initiated the empowerment of the countermajoritarian mechanisms of the ISC in order to preserve its influence and protect its social and cultural values (Sapir 2009). Anticipating the end of its hegemony and the position of a minority in government, this elite embraced the need for constitutional protection from governmental arbitrariness (Ferejohn and Pasquino 2004). The Israeli economic leadership joined in with the belief that the ISC would protect neoliberal economic policies (Hirschl 2009). With its original dispositions in line with those elite preferences, the ISC largely delivered on these expectations (Mautner 2018).

The origins of this transformation notwithstanding, its consequences permeated all domains and soon encountered an aggressive backlash. Right-wing criticism in Israel claims the Constitutional Revolution was one element in the attempt by the judiciary to enhance its own power and sphere of influence. Those trends, such critics claim, distorted the balance in the separation of powers system, granted excessive power to nonelected officials in socially and politically salient issues, and eroded majority rule (Roznai 2018).

That criticism was magnified by a rising tide of right-wing and religious populism in Israel. Often endorsing anti-elite and anti-intellectual positions, populism emphasizes the “rule of the people” (Betz 2017; Mudde 2007). Israeli populist groups have accused the ISC of being part of a left-wing liberal elite that disregards the will of the people and also erodes the Jewish character of the state. Such populist sentiments have gained traction among Israel’s Jewish population and led to increasing public support for limiting the power of the judiciary (Filc 2018; Perliger and Pedahzur 2018; Porat and Filc 2022; Roznai 2018).

Earlier Propositions for Judicial Reform

The combination of political criticism and scholarly debates concerning judicial overreach that is in need of recalibrating turned into a series of suggested reforms aiming to limit the power of the judiciary (Friedmann 2016; Gavison 1999; Shetreet 2002). Some suggestions included only minor changes, whereas others were radical. The first major reform, proposed in 2000 by MKs from religious and right-wing parties, was the creation of a separate constitutional court. According to the bill proposed, the newly formed constitutional court would be the sole ruling authority over constitutional matters, and its judges would be appointed by the Knesset (Filc 2018; Meydani 2011). That bill was eventually rejected, as it garnered significant resistance from the judiciary and from legal experts, claiming that such a nomination process would lead to politicization (Barak 2003).

After this attempt to shift constitutional review from the ISC to another judicial body fell through, a suggestion was made to curb the ISC’s power in this regard. In 2002, a committee appointed by the government and headed by Yaakov Neeman, former minister of justice, suggested the legal entrenchment of the ISC’s authority rule legislation null and void, with the removal of this authority from lower courts. Alongside that recognition, the committee suggested that the Knesset should be empowered to temporarily override such a decision by the ISC upon a supermajority of 70 out of 120 MKs for up to five years. However, those proposals were never endorsed (Friedmann 2016).

In 2007, law professor Daniel Friedman was appointed as minister of justice. Friedman, a harsh critic of judicial activism, promoted a more extreme version of the override clause (Mautner 2018). According to his proposed reform, the Knesset would have the authority to override judicial review made by the ISC with a regular majority of 61 MKs. Furthermore, a special majority of two-thirds of an extended court panel of at least nine justices would be required for judicial review of Knesset legislation (Navot and Peled 2009). Minister Friedman also wanted to divide the Judicial Selection Committee into two separate committees—one for the selection of lower court judges and the other for the selection of ISC justices. For the former, two ISC justices were to be replaced by two retired district court judges in order to ensure that the promotion of lawyers and judges in the judiciary was not dependent on the ISC. Regarding the selection committee for the ISC, one of the justices was to be removed, a retired judge and a public representative were to be selected by the government, and one academic selected by the universities was to be added. Membership on the committee would then expand to 11, with only 4 active representatives of the ISC – the Supreme Court chief justice, an associate justice, and two lawyers selected by the Bar Association (Friedmann 2016). These proposed changes were meant to prevent the justices from having a “decisive voice on the committee” (Navot and Peled 2009, 440).

Most of Friedman’s initiatives during his tenure failed, but a major change in the judiciary did occur while he was in office. In 2008, a bill proposed by MK Gideon Saar was passed by the Knesset and changed the majority required to appoint an ISC justice—from a regular majority to a majority of seven out of nine. This change prevented the formation of a coalition of five representatives from the legal system that would control all ISC appointments. It also allowed mutual veto power to the judiciary and the coalition (Lurie 2019). That change had some success in curbing judicial activism on the ISC (Rosenthal, Barzilai, and Meydani 2021).

In 2015, MK Ayelet Shaked from the religious right-wing party the Jewish Home was appointed minister of justice. Apart from promoting Friedman’s extreme version of an override clause requiring a majority of 61 in the Knesset, Shaked also proposed to make the Basic Laws nonjusticiable and deny the ISC the ability to nullify laws on procedural grounds. Moreover, Shaked also strove to subordinate the legal counsels to the executive by granting ministers de facto control over the appointment of counsels in their offices. Minister Shaked maintained that the ISC was too activist, liberal, and cosmopolitan. She adopted the populist rhetoric of blaming the ISC for being elitist and disconnected from the will of the people (Roznai 2018; Shaked 2016). Although Shaked’s attempts to transform the judiciary failed, she capitalized on the existing system to nominate numerous judges and justices who shared her worldview. Politically allying with the chair of the Bar Association enhanced her power in the Judicial Selection Committee (Lurie 2019).

The Judicial Reform of 2023

The 2023 proposed judicial reform is different from previous ones. First, it was comprehensive and wide ranging. Second, it aimed to swing back the pendulum further than ever before. And third, it came closest to success. The judicial reform—or Constitutional Revolution, according to some of its critics—was presented in January 2023 by Yariv Levin, six days after assuming office as minister of justice (Zimuky 2023). Levin is a senior member of the Likud party, headed by Prime Minister Benjamin Netanyahu. In the midst of trials on several corruption charges, Prime Minister Netanyahu formed a coalition government with extremist and ultraorthodox parties (Dolev 2020; Drukman and Azulay 2022). Minister of Justice Levin holds extreme views regarding the judiciary. In a 2011 interview, for instance, he said, “It’s no secret that a minority group with extreme leftwing politics dominates the legal system—particularly the Supreme Court” (Liss 2011).

Levin’s plan includes four major pillars: reducing the scope and frequency of judicial review, limiting the power of legal counsel and subordinating it to the government, granting the coalition control over the Judicial Selection Committee, and limiting the use of the Reasonableness Doctrine. The aim was to politicize the judicial nomination process and reduce judicial review and oversight over the legislature and executive.

The Reasonableness Doctrine has been one of the most powerful judicial tools in reviewing governmental actions, and its use has significantly expanded since the 1980s. Until that point, the ISC nullified government actions mostly on the basis of discrimination, arbitrariness, conflict of interests, violation of rights, and excess of authority. The Reasonableness Doctrine enabled the ISC to review governmental actions based on their compatibility with professional standards and general legal principles (Mautner 2018). The reform would completely abolish the doctrine’s use for decisions made by elected officials at the national and local levels, effectively limiting the ability of the ISC to oversee such decisions.

Regarding judicial review, the reform was based on Shaked’s proposal, with an override clause based on regular majority of 61 MKs, nonjusticiability of the Basic Laws, extended panels, and granting the ISC exclusive authority of such review. The proposed reform of 2023 went further to suggest that laws could only be nullified en banc and by a unanimous vote. Even with such a vote, nullification can only be based on explicit contradiction with entrenched articles of the Basic Laws. As most articles are not entrenched, the proposed change meant almost de facto revocation of judicial review. Effectively sounding the death knell for judicial review, the suggested override clause was supposed to be entrenched in laws selected by the coalition and to clearly state that those laws were above judicial review, even if they contradict Basic Laws.

The 2023 reform is not focused solely on the ISC. It also targets government legal counsel and the attorney general. According to the reform, opinions of the legal counsel would no longer be obligatory. Furthermore, counsels would be appointed by the ministers and would not be subordinate to the attorney general. As for the attorney general, they would no longer hold the exclusive authority of representing the government and the ministers before the courts. Instead, private legal representation was proposed.

The most contested part of the reform was the proposed change in the Judicial Selection Committee. To guarantee the control of the coalition of the judicial selection process, the composition of the committee and the required majority for the selection of ISC justices were to be changed. Representatives of the bar were to be replaced by one minister and one MK. Additionally, the confidential elections for the representation of the Knesset in the committee were to be annulled. Instead, Knesset representatives would include chairs of the Constitution and Knesset Committees and the chair of the State Audit Committee, who is a member of the opposition. The judiciary will be represented in the committee by the chief justice and two retired chief judges of lower courts, appointed by the minister of justice with the consent of the chief justice. Overall, the committee would consist of five members of the coalition, one member of the opposition, and three members of the judiciary (active and retired). The second part of the proposal, cancellation of the special majority required for appointments to the ISC, would effectively mean granting the coalition the power to appoint its desired candidates. With the proposed annulment of seniority, the coalition could also appoint the chief justice—even one that was not previously an associate justice (Shafir 2023a). The chief justice, the Law of the Courts determines, must consent to the appointment by the minister of justice of chief judges on lower courts.

The suggested judicial reform met with massive opposition at the public and elite levels. Some of the opponents were zealous supporters of previously proposed judicial reforms, such as former minister of justice Daniel Friedmann (Makover-Belikov 2023). There were several types of critiques. First, the ISC and attorney general are the only institutional checks on the power of the government in the Israeli parliamentary system. Limiting their authority will undermine the rule of law, as it will result in abuse of power, governmental arbitrariness, and violation of human rights. Second, as the ISC serves as the highest court of appeals and does not have a discretionary docket, a considerable share of its work deals with appeals in civil and criminal cases (Weinshall and Epstein 2020). Thus, the nature of its work requires a high degree of legal professionalism. Subjecting the selection of justices to elected politicians might harm the professional level of the ISC. The same argument goes for the selection of judges to lower courts. Third, the de facto control the coalition would have on the selection committee in all judicial instances means control over promotions. This dependence on the political branches to get ahead violates the principle of judicial independence. Fourth, the chief justice has extensive authority over the judiciary, and selecting them by the coalition based on political alliance might lead to biased rulings in favor of the government and further harm to judicial independence.

Lastly, the PM leading the 2023 ruling coalition government stands for criminal trial on corruption charges. MK Aryeh Deri, leader of the second largest party in the coalition (Shas), had already been convicted of corruption and tax evasion. Due to its charges, MK Deri was disqualified from holding a ministerial role by the HCJ (Morag 2023). Other coalition parties are the ultraorthodox United Torah Judaism, the far-right nationalist party Jewish Might, and two more religious right-wing parties. Critics of this coalition claim it aspires to remove legal checks so the government can ease the legal woes that some of its leaders face, promote social segregation of the ultraorthodox population, and endorse the annexation of the West Bank and principles of Jewish supremacy (Peretz 2023).

Levin’s declaration in January 2023 received immediate heat from opposition parties (Lapid 2023) and civil society organizations. Yet the number of participants in the first demonstration against the reform was limited to only a few thousand (Kutub 2023). A week later, numbers went up to 80,000 and some additional thousands of demonstrators in Jerusalem and Haifa (Kutub, Levi, et al. 2023). With time, the protest movement expanded well beyond the borders of Tel Aviv and Israel’s major cities.

After the second demonstration in Tel Aviv, a relatively small group attempted to block Ayalon Highway, one of Israel’s main roads. The second round of demonstrations sowed the seeds for the strategy of the entire protest. For over 20 weeks, street demonstrations were held every Saturday night with a broad geographic spread, minimizing the role of politicians and emphasizing the role of protest groups and civil society. Further attempts were staged to obstruct public order, even on weekdays. Geographically spreading the protest movement achieved two goals: it made it easier for the general public to protest near their area of residence, and it fought off the claims that the protest was fueled and led by the same elites that supported the Constitutional Revolution—high-class secular Ashkenazis that reside in the center of Israel and most prominently in Tel Aviv (Hilaie 2023).

A few days before the second demonstration, the minister for national security, Itamar Ben Gvir, leader of the far-right Jewish Might party, urged the police to arrest demonstrators who blocked roads and to use more significant measures to disperse the protests (Shnerb et al. 2023). That fueled rage and contributed to a further rise in the number of demonstrators. As protests continued and obstruction grew wider and more extreme, so did the rhetoric of the government against the protesters, who were often called anarchists by ministers (Azulay et al. 2023; Kutub, Hilaie, et al. 2023). Alongside the inflamed rhetoric of the government, the police started acting more harshly against demonstrators (Lukash and Turgeman 2023). Such a militant approach regarding the protests instead fueled and intensified them once more. At the peak of the protest, more than 200,000 participated in a demonstration at the heart of Tel Aviv, which amounts to approximately 2% of the Israeli population (Kutub, Glickman, and El-Hai 2023).

Alongside the street demonstrations and obstructions of the public order, leading jurists, economists, businessmen, and scholars issued a litany of public letters to the government regarding what they perceived as the potentially devastating effects of the reform (Fux 2023). Additionally, senior executives at technology firms threatened to pull money away from the country and register their firms abroad if the reform were to pass (Yaacobi-Hendelsman 2023). Except for internal pressures, the government felt the heat from credit-rating companies and world leaders, headed by President Joe Biden (Berdichevsky 2023; Eichner 2023; Gorodeisky 2023).

The group that tilted the scales more than any other were members of different wings of the Israeli security apparatus. When members of intelligence and combat reserve units declared they would not report to service if the reform were to be legislated, that sent shockwaves across the general public, the political system, and the security forces themselves (Kubovich and Harel 2023; Shafir 2023b). In a country with constant military threats, such widespread objection could pose an existential threat (Jones and Murphy 2001).

Even in the face of such massive protests, the coalition went on with its proposed reform and concentrated on the Judicial Selection Committee. During March, this part of the reform was ready for the two final calls in the Knesset (Hilaie, Shnerb, and Kidon 2023). Yet when the country was on the brink due to social turmoil, the coalition government suggested unilateral refinements in the reform. First, on February 26, it was suggested to lower the required majority for judicial review on legislation to 12 or 13 rather than a unanimous vote of all 15 justices (Shafir 2023b). Second, on March 19, adding two additional MKs to the proposed composition of the selection committee, one from the coalition and one from the opposition, was proposed. In that manner, the coalition would retain a majority of 6 out of 11 members. However, it was also suggested that only the first two appointments to the ISC in every tenure of the Knesset could be selected by a regular majority. The consent of at least one opposition member would be required for the third appointment, and after the fourth, the consent of one justice would also be required. Furthermore, lower court appointments would require a special majority of 7 out of 11 (Knesset 2023). The proposals for compromise were rejected by most protest organizations and the judiciary (Zimuky and Hilaie 2023). The main claims were that the required majority for judicial review would still render it ineffective and that the new compositions and required majorities in the Judicial Selection Committee would still grant the coalition excessive control over the selection process. According to the proposal, the coalition could select the chief justice and, with them, acquire the required majority for controlling lower court appointments (Hilaie and Zimuky 2023).

By the end of March 2023, a collision between the coalition and the protest movement seemed inevitable. In parallel, opposition by army reservists became a real concern for the heads of the security system and the minister of defense, Mr. Yoav Galant. As a response to the gloomy security assessments presented to Galant, he urged PM Netanyahu to stop the legislation of the judicial reform, but to no avail (Barnea 2023; Yehoshua 2023). Eventually, on March 25, Galant called for an immediate stop of the legislative process for negotiation (Azulay 2023a). One day later, PM Netanyahu announced the dismissal of his minister of defense (Zarahia 2023).

A few short hours after this announcement, dozens of spontaneous protests broke out across the country. Tens of thousands of protesters blocked Ayalon Highway for hours, put up barricades, and lit bonfires on the asphalt (Kutub and Levi 2023). The next day, the General Organization of Workers in Israel (Histadrut), the Federation of Local Authorities in Israel, and universities and colleges declared a general strike and called on PM Netanyahu to withdraw his intention to dismiss Mr. Galant from the role of minister of defense and to stop the legislation process (Hilaie, Trabelsi Hadad, and Lukash 2023; Kraus and Hadad 2023; Kutub, Yanko, and Lior 2023). Within hours, the PM announced, “I decided to suspend the final stage of legislation, in order to reach a broad agreement. I give a real chance to a real negotiation” (Azulay 2023b). Such negotiation between representatives of the coalition and the opposition did begin under President Isaac Herzog (Eichner, Azulay, and Kutub 2023). The negotiation still goes on as this chapter is in print. All scenarios are still on the table—reaching a compromise, leaving the reform behind, and preserving the status quo or return of the coalition to its original plan.

Conclusions

The 2023 judicial reform, led and promoted by the coalition government of PM Netanyahu, divided the country along clear lines. Its supporters view the judiciary and the ISC as an elitist project whose powers swelled uncontrollably and neutralized the ability of the majority to shape the character of the country to put more weight on its Jewish elements at the expense of its democratic nature. On the other hand, those opposing the reform fear that it is effectively a cover for a coup d’état to undermine the democratic nature of Israel led by extremists and a prime minister facing a criminal trial. Members of the vast protest movement perceive the judiciary as the last bastion of civil rights against unconstrained government power. Such power will be abused to change Israel’s liberal nature, violate human rights, and lead to deepening governmental corruption.Unlike earlier attempts, the 2023 reform is comprehensive and was promoted at an unprecedented pace by a cohesive and determined government. However, it was met by a nationwide protest movement that effectively utilized public sentiment in favor of liberal democracy and the warnings, pressures, and threats made by powerful players—from army reservists and executives of technology firms to the US president. As the level of trust between the factions was low, the protest movement did not fade even in the midst of negotiations on the reform under the aegis of the president.The Israeli judiciary keeps changing, affected by global trends and local sentiments. The 2023 proposed reform brought to the surface the tension between populists and supporters of liberal democracy, the underprivileged and the elites, and those who believe that the democratic nature of the country should be strengthened and those who endorse emphasizing its Jewish character. Thirty years after the Constitutional Revolution, public resentment against the judiciary was fueled by a dominant populist movement and built up to the brink of a counterrevolution. In July of 2023, the results of the government’s actions came to fruition. The Knesset passed a bill called the “reasonableness bill” after all members of the opposition walked out of the session. The new law removes the Israeli Supreme Court’s power of judicial review over government actions.