The Lawfare Podcast: Lawfare Archive — The Israeli Judicial System on the Brink

Release Date: April 19, 2025

Introduction

In this archived episode of The Lawfare Podcast, the Lawfare Institute delves into the escalating tensions surrounding the Israeli judicial system. Hosted by Benjamin Wittes, the episode features Israeli legal scholars Amichai Cohen and Yuval Shani, who provide an in-depth analysis of the ongoing efforts to reform and potentially undermine the independence of Israel's judiciary. This summary captures the essence of their discussion, highlighting key points, insights, and notable quotes with corresponding timestamps.

1. Context and Background

[01:50] Carolyn Cornett introduces the episode by highlighting recent events: On April 17, Israel's High Court rejected an injunction against firing Shin Bet chief Ronan Bar, a decision that underscores the growing conflict between Prime Minister Benjamin Netanyahu's coalition and the judiciary. This episode revisits a March 6, 2023 discussion where Cohen and Shani explored their six-part series on Israel's judicial reforms.

2. Understanding the Protests

[04:23] Benjamin Wittes opens the dialogue by addressing the unprecedented police response to protests against the judicial reforms.

Amichai Cohen explains, "[05:07] Amichai Cohen", that the involvement of the Minister of National Security, Itamar Ben-Gvir, represents a significant departure from the traditional independence of the Israeli police. This change has led to more forceful suppression of protests, even when the demonstrators are not overtly violent.

3. Public Reaction to Judicial Reforms

[07:09] Benjamin Wittes questions why technically complex judicial reforms have sparked such intense public backlash.

Yuval Shani responds, "[08:08] Yuval Shani", emphasizing that the reforms are perceived as a radical transformation of Israel's governance system. The aggressive push for change—without broad consensus or public deliberation—has fueled suspicion and hostility. Additionally, the government's existing trust deficit, due to corruption charges against key members, exacerbates public resentment.

4. Objectives Behind the Reform Package

[10:38] Benjamin Wittes probes into the underlying motivations driving the judicial reform package.

Amichai Cohen outlines multiple motivations:

• Netanyahu's legal issues
• The ultra-Orthodox sector's historical grievances with the judiciary
• A populist movement seeking to limit judicial oversight perceived as hindering right-wing and religious agendas

He notes, "[11:52] Amichai Cohen", that populists view court reviews as illegitimate, aiming to diminish constraints on their power.

Yuval Shani adds, "[13:50] Yuval Shani", that settler movements and right-wing parties are also motivated to curtail the Supreme Court's authority to facilitate their political and territorial ambitions.

5. Components of the Judicial Reform Package

[15:21] Benjamin Wittes identifies a common thread in the diverse elements of the reform package: the assertion of parliamentary majoritarian control over the judiciary.

Yuval Shani elaborates, "[16:06] Yuval Shani", detailing key components:

• Super Majority Requirement: Raising the threshold for the Supreme Court to strike down legislation from a simple majority to 12 out of 15 justices.
• Knesset Override: Allowing the Knesset to reinstate struck-down laws with a simple majority (61 out of 120 members).
• Judicial Appointments: Altering the appointments committee to ensure the ruling coalition can unilaterally appoint judges.
• Limitations on Administrative Review: Restricting the Court's ability to review and counteract administrative decisions.
• Basic Law Protections: Shielding constitutional provisions from judicial scrutiny.

6. Historical Development of Israel's Judicial System

[22:46] Benjamin Wittes raises the question of how Israel developed a robust system of checks and balances without a formal constitution.

Yuval Shani responds, "[24:14] Yuval Shani", by tracing the evolution:

• Consensus Institutions: Strong public support for the IDF and the Supreme Court maintained stability.
• Activist Judiciary: Until two decades ago, the Court enjoyed high approval ratings and actively reviewed governmental policies.
• Political Shifts: Recent right-wing governments have systematically eroded support for the Court, aligning judicial appointments with their ideological preferences.

7. Centralization of Political Power vs. Judicial Independence

Amichai Cohen discusses the delicate balance between Israel's centralized political system and its judicial independence. He notes, "[20:38] Amichai Cohen", that the absence of federalism and multiple legislative houses in Israel has historically necessitated a strong judiciary to prevent excessive concentration of power.

8. Comparison with American Judicial Discontent

[40:12] Benjamin Wittes draws parallels between Israeli and American discontent with their respective judiciaries.

Amichai Cohen observes, "[41:24] Amichai Cohen", that Israeli reform discourse is heavily influenced by American rhetoric around judicial activism. However, he points out fundamental differences:

• Historical Context: Israel lacks a long-standing tradition of judicial review akin to the U.S. system.
• Structural Differences: Israel's parliamentary system allows for swift legislative changes, unlike the more stable checks and balances in the U.S.

Yuval Shani adds, "[43:08] Yuval Shani", that Israeli reformists borrow strategies from various countries, including the U.S., Canada, and South Korea, to legitimize their efforts to reshape the judiciary.

9. Prospects for Passing the Reforms

[51:20] Benjamin Wittes investigates the likelihood of the reform package's passage amidst mounting opposition.

Yuval Shani outlines the legislative process in Israel:

• Three Readings: Bills undergo multiple votes in the Knesset, allowing for rapid passage if the government wields sufficient support.
• Current Status: The reform package has passed its first reading and is expected to proceed swiftly, potentially by the upcoming Passover break.

Amichai Cohen adds, "[56:39] Amichai Cohen", that international economic pressures and internal dissent could either hinder or precipitate the reforms' swift passage. Even if passed, he warns of a potential constitutional crisis as the Supreme Court confronts the legitimacy of laws designed to curtail its own powers.

10. Potential Consequences and Constitutional Crisis

[58:56] Benjamin Wittes explores scenarios where the reforms could fail or lead to chaos.

Yuval Shani suggests, "[56:39] Yuval Shani", that while the current coalition has the votes to pass the reforms, strong public opposition and economic fallout might compel the government to moderate its approach. However, he warns that without compromise, the legislature-Supreme Court balance could be irreparably damaged, leading to unprecedented political instability.

Amichai Cohen concurs, emphasizing that dismantling the judiciary's role would remove the primary safeguard against executive overreach, thereby endangering Israeli democracy.

11. Conclusion

The episode concludes with a somber reflection on the fragile state of Israel's judicial system. Cohen and Shani underscore the seriousness of the proposed reforms, likening them to regime changes seen in Hungary and Poland. They warn that without robust checks, Israel risks sliding into authoritarianism, undermining the very foundations of its democracy.

Notable Quotes:

• Amichai Cohen [05:07]:

  "The tradition of the Israeli police is independence in terms of the application of force in demonstrations. But Ben-Gvir has changed that."

• Yuval Shani [08:08]:

  "This push is an attempt to, for the first time in 40 years, steer the ship of governance in the direction that the right wing wishes without any interruptions."

• Amichai Cohen [11:52]:

  "Populists feel that judicial limitations on their power are illegitimate and are trying to push them away."

• Yuval Shani [16:06]:

  "The reform package seeks to limit the Court's ability to strike down legislation by introducing a super majority requirement."

• Amichai Cohen [20:38]:

  "Political power in Israel is very centralized... The judicial system was built to balance this centralization."

• Amichai Cohen [41:24]:

  "Israeli reform discourse is heavily influenced by American rhetoric around judicial activism."

• Yuval Shani [43:08]:

  "There's a cherry-picking strategy where support for reforms is legitimized by referencing systems like the U.S. and South Korea."

• Amichai Cohen [56:39]:

  "Even if legislation passes Knesset, it could lead to a constitutional crisis as the Supreme Court challenges the reforms."

Final Thoughts

This episode of The Lawfare Podcast presents a comprehensive exploration of the precarious state of Israel's judicial system amidst aggressive reform efforts by a right-wing government. Through the expertise of Cohen and Shani, listeners gain a nuanced understanding of the historical, political, and societal factors driving these changes, as well as the potential ramifications for Israeli democracy.