The Real Conflict over Judicial Reform

As mass demonstrations continue in Tel Aviv and Jerusalem against the government’s proposed judicial reforms, it’s important to examine what these protests are actually about.

Despite the supportive media coverage, the demonstrations will likely have a very limited political impact. The judicial reform plan has the support of the relatively ideologically homogeneous new coalition and the first bill of the plan has already passed its first of three readings.

Put bluntly, the protests are unlikely to derail the passage of the reforms into law.

Since then-Supreme Court President Aharon Barak declared the court to have judicial review powers over the nation’s legislature in his “constitutional revolution” of the 1990s, the court has canceled 22 laws. This has been problematic for two reasons. First, Israel does not have a written constitution. Instead, the court has been using its interpretation of the Basic Laws, which were never intended to be used as such, particularly Basic Law: Human Dignity, a vaguely-worded law that gives judges broad authority to extrapolate anything they wish to see politically.

Second, the justices on Israel’s Supreme Court are not selected democratically. While in most ostensibly democratic countries, judges are selected and approved by elected officials, here judges are selected and approved by a nine-seat panel comprising two ministers, one coalition lawmaker, one opposition lawmaker, three current Supreme Court judges, and two representatives of the Israel Bar Association.

This has led to Supreme Court justices essentially defining their own powers and selecting their own successors and maintaining the court as a nearly all-powerful body made up of ideologically homogenous elites who largely view themselves as responsible for safeguarding Israel’s Western character – what Israel’s ruling class promotes as being synonymous with “democracy.”

But far from promoting actual democratic values that empower people to influence the structures they live under, Israel’s judicial system has at times been termed “the judicial ayatollah” for its similarities to the Islamic Republic system in Iran. While the Iranian ayatollahs safeguard the laws and principles of Islam from the infringing hand of values that might undermine it, Israel’s judicial elites do the same in defense of liberal ideology (and the class interests of Israel’s bourgeoisie).

In their most high profile cases of the last few years, they have overruled Knesset Elections Committee bans on figures accused of public incitement against the state, forced the government to recognize Zoom-marriages performed by the state of Utah (essentially enshrining civil marriage in Israel), and forced the government to recognize the status of those claiming to have become Jews through a naturalization process performed by kangaroo Batei Din for the sake of aliya – altering the traditional definition of Jewishness and undermining the Israeli rabbinic courts.

The real disagreement within our society isn’t actually over democracy but rather over Israel’s very identity. For those organizing the protests, the goal is for Israel to exist as an outpost of Western civilization in the Middle East – a modern-day Rhodesia armed and funded by the United States.

With demographics shifting in favor of Israelis loyal to our Torah and seeking a state that fully expresses Jewish identity, those desperate to maintain Israel’s Western character see the Supreme Court as the most powerful body able to ensure the continued existence of their vision for the country despite the population’s socio-cultural trajectory.