Lawfare Archive: The Israeli Judicial System on the Brink

Summary

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.

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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.

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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."

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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.

Transcript

[Podcast Host]

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[Carolyn Cornett]

I'm Carolyn Cornett, intern at Lawfare, with an episode from the Lawfare archive for April 19, 2025. On April 17, Israel's High Court refused to nullify an injunction prohibiting the firing of Shin Bet chief Ronan Barre, who Israeli Prime Minister Benjamin Netanyahu's cabinet voted to remove last month. The court proceedings over Barr's ousting marks the latest conflict between Netanyahu's coalition and the judiciary, and if successful, Barr's removal could trigger a constitutional crisis that has been building for two years. For today's Archive episode, I selected an episode from March 6, 2023 in which Amihaly Cohen and Yuval Shani joined Benjamin Wittes to discuss their six part series for Lawfare on the ongoing effort by the Israeli government to alter the Israeli judicial system. They spoke about protests against these judicial reforms, the history of the Israeli judiciary, what led to this growing crisis, and more.

[Benjamin Wittes]

I'm Benjamin Wittes and this is The Lawfare Podcast March 6, 2023. Amichai Cohen and Yuval Shami are both Israeli legal scholars and longtime Lawfare contributors. Shami is a professor of International Law at the Hebrew University Law School in Jerusalem. Cohen is a professor at Ono Academic College. They are both also scholars at the Israel Democracy Institute, and together they are also co authors of a six part series in Lawfare about the ongoing effort by the Israeli Government to alter the Israeli judicial system. It is a detailed account of. Of a very serious reform operation in Israel, one the authors argue is dangerous. They joined me in the Virtual Jungle studio to discuss the ongoing protests in Israel, the ongoing legislative efforts, and the history of the Israeli judicial system and its growing power that has led to this crisis. It's The Lawfare Podcast, March 6. The Israeli Judicial system on the brink.

[Podcast Host]

So I want to start with the protests that have, as of yesterday, and we are recording on Thursday afternoon, Washington time, been broken up with force by the Israeli police. Amichai, get us started. This is not something that normally happens in Israeli civilian protests. On the domestic side, how unusual is it for there to be protests against government policy by Israeli citizens that the police respond to with force and violence?

[Customer Review Voice]

So I think there are two main differences between previous protests and there have been previous protests and the current protests. The first one is that we have now the Minister of National Security, Itamar Bengvir, heavily involved in the actual operation of the police. This is something completely new. The tradition of the Israeli police is independence in terms of the application of force in demonstrations. But Ben GVIR has changed that. He has been very explicit about changing that. He said up front, I want to control police operations. And he was actually in the headquarters of the police, allegedly. You know, reports are that he pushed for using more force. The second point is that there have been civilian protests in Israel and there was police force used in order to break them down and open roads. However, usually these are used when the protesters themselves are violent, use violence in an extreme measure. It doesn't seem that the protesters in this instance were very violent in their activities. I wouldn't say they were completely peaceful. And I must say that in the past eight weeks when the protests have been taking place, the police has been very tolerant generally regarding the protests. However, this time it seems that the police decided to do some kind of show of force. And it's, of course, connected to my earlier point.

[Podcast Host]

All right, so the protests, Yuval, have been going on since the government announced the plans for this judicial reform package about which the two of you have written a, I think just exemplary series of pieces on Lawfare. You know, when you, when you read your account of the. Of the package, these are fairly technical changes. And my initial question is, why has this judicial reform package produced such a dramatic public reaction as to produce weeks and weeks and weeks of protests at this scale? That it is actually, you know, certainly not what I would have predicted the public reaction to be. Why have people reacted Quite as strongly as they have.

[Lemonade Advertiser]

Yeah, I think it's a combination of a package which may be technical in the formal sense, in the sense that it's changing a majority here and a majority there, but it is a very radical protest which I think many people in Israel have identified. What's behind this and what's behind this is really a radical transformation of the system of governance that we have in Israel. But I think it's not just that. And I think you're right to point out the fact that this reform has been a pushed extremely aggressively. So the speed in which the reform is being pushed forward without a deliberative process, without a good faith attempt to formulate a broad consensus, without even discussing this with the Israeli public in a very comprehensive manner. I think this, this is an additional factor that is. Has created a lot of suspicion and hostility. It does seem like a shock and awe kind of operation. And add to that the fact that this is being led by a government that has within it people who have been themselves implicated in criminal offenses. Some have been convicted, some have served time in prison. The Prime Minister himself is currently on trial on three corruption charges. And add to that the fact that this government has not only pushed for this reform, it is already, in the context of the coalition agreements, has already threatened to or planned to change the law in Israel in many very critical respects, making it a much more rightist country, a much more religious and conservative oriented country. So I think the push on all fronts so speedily and with politicians that already enjoy very limited trust, I think this is, for many Israelis, this was more than one bridge too far. It was a number of bridges too far simultaneously. And that that generated the kind of response which I think is quite surprising in its intensity.

[Podcast Host]

Okay, so one thing that is confusing from an outsider's perspective about this package is what it is really a response to. In some ways, it is a response, as you describe, to the corruption charges against a number of ministers. In a larger sense, it's a response to the growing power of the Israeli Supreme Court over the last 30, 40 years. And in some ways it's a response to the Court's willingness to the sort of unusual administrative law posture of the Israeli Supreme Court, which can hear kind of challenges to the reasonableness of government action. I'm curious from both of you, Amichai, first, how do you understand what the policy objective here really is and what the problem is that the package is meant to address?

[Customer Review Voice]

So there are two or three separate problems. There's actually a coalition of powers which we, with each one trying to achieve a different goal. I think one of them is, of course, Netanyahu, which has some kind of legal problems. The second is the ultra orthodox segment of the Israeli society, which for a long time has been at odds with the court system and has had grievances against the courts on several fronts. These, however, alone would not have been enough in order to push for this change. What is going on, I think is, and we've seen it in other countries as well, perhaps also in the United States, but in Israel in the recent decade or 15 years, is a populist movement which sees any review by the courts as illegitimate and using certain disagreements within the Israeli society between Jews and Arabs, between religious and secular Jews, using these differences in order to gain more power. And the court in many cases is a limitation on the power of these forces who are pushing for a more religious, for a more national Israel. And as populists, they feel that this limitation on the power is illegitimate, is problematic and they are trying to push it away.

[Podcast Host]

Yuval?

[Lemonade Advertiser]

Yeah, I'll just add two additional. I agree with Amichai. I'll add two additional perhaps considerations. One is there is also a strong group of settlers or political parties which are very much aligned with the settler movement, and they also have their own set of grievances against the court, which has been seen as an element that has slowed down their political ambition of expanding settlements and seizing land in the West Bank. But I think there is also what we are seeing is perhaps a long held frustration on the right in Israel that the right has been in power in Israel on and off for the last 40 years. And yet the court has remained by and large a rather liberal, relatively speaking, a liberal institution. So there is this famous adage that you sometimes hear on right wing circles. How is it that we vote right but we get left? And I think that this push is an attempt to, for the first time in 40 years, for the right wing to seize, to be in a position to steer the ship of governance in the direction that it wishes without any interruptions, without any obstacles.

[Podcast Host]

All right, so this produces a package. These various strains that you've both identified produce a package with a number of different elements that appear to address very different things, but have in common a kind of assertion of majoritarian parliamentary control over the legal system. So, Yuval, if you would, take us through the several components of the package and then I'm going to try to probe a little bit about each one.

[Lemonade Advertiser]

Right. So the package deals mostly with the balance of power between the Supreme Court and the Knesset, The Parliament, the way it is structured is that it seeks to limit the ability of the Court to strike down legislation. And it does so by introducing a super majority requirement for decisions on the Court to strike down legislation. The Court In Israel has 15 justices. The current system is that any majority can strike down legislation that violates the basic laws, which serve in Israel as a sort of constitution. The reform package seeks to render this threshold much higher. According to one initial proposal proposal, all 15 justices would have had to support the striking down of legislation in order for this to pass. The current version that has, that has passed first reading is gone. For first reading is talks about 12 out of 15. So this is one element making it much harder for the Court to strike legislation. And even the second part of the reform is that even in those rare cases where the Court would strike down legislation, the Knesset could still override that decision and revive the law that has been struck down through a simple Knesset majority of 61 out of 120 members of Knesset. This is of course, in the Israeli system, you cannot form a government unless you have 61 seats behind you. So that means that any government of the day can then in a way pass unconstitutional legislation either after the Court has struck it down, or according to the version that is moving forward, also preempting the Court by deviating from the constitutional standard. Add to that, the package also seeks to interfere with the system of appointing of judges in Israel. Currently it's a committee which is composed of politicians, but also lawyers and judges. The lawyers and judges are in the majority, and the proposals seek to reverse that and essentially give not only politicians, but actually the politicians of the ruling coalition an inbuilt majority in the Appointments Committee, which means that they would be able to appoint all judges in Israel to all instances without a system that is similar to what we have in many other countries. And even in some respects, it's even worse than the system that we have that you have in the United States. There are other aspects of the plan. Just noting very briefly, there would also be a limitation on the Court's ability to exercise administrative review over governmental decisions and to strike decisions which are unreasonable. There would also be limitations on the ability of government lawyers to generate binding legal opinions for the government. And there would also be limitation of review of the Basic Laws themselves, of the constitutional provisions. Although in Israel, again, one of the anomalies of the system is that 61 members of Knesset can pass a Basic Law and according to the proposals would shield it from any judicial review whatsoever.

[Podcast Host]

So one of the things that, I mean, these sound quite diverse, but one of the, it seems to me the thing that knits them together, Amichai, is that they, they all involve the assertion of the majority parties or the majority coalition's control over the judicial process. So from appointments to an override, to limiting the ability of the professional lawyers within the executive agencies to issue binding legal opinions, it all seems to free up the political echelon to have the final say. Is that a fair characterization or is it more complicated than that?

[Customer Review Voice]

I think it's a fair characterization and I want to give a framework here. So in terms of concentration of political power, Israel's political system is very concentrated. So it's not a federal country. It's a parliamentary system in which the heads of the parties of the coalition control both the parliament and the government. We have no two houses of Parliament, we have no independent president which can veto legislation. We are not part of any international organization or any international human rights court. Political power in Israel is very centralized. And what developed in response to this centralization is a strong judicial system which is built on two bases. One is a strong Supreme Court, some would say activist in certain areas, certainly activists, but not in all areas, but definitely a strong Supreme Court and a strong government legal service, professional and independent government legal service with authorities that are, in a sense, unique. So this created the balance in Israeli politics between a very, very centralized political system and to balance it, judicial system. But the anomaly, as Yuval has said, that this is all built on sand. So it's very easy for political powers or political coalition which wishes to change this delicate balance to simply do what they are doing right now and say, we have the majority, we have the power, we are going to take the powers away from the judicial system. And, and I think this is the thread that connects all these different suggestions.

[Podcast Host]

All right, so this raises the question of how Israel managed to build such an elaborate system of set checks and balances on the basis of sand. This is, this is a very jarring idea to Americans who are used to the idea of checks and balances as rooted in separation of powers. They are the basis of the entire constitution, and it all comes back to the written constitution. But as you guys describe in this series, the Israeli system of checks and balances kind of, first of all, it develops relatively recently. And secondly, it develops based mostly on the Knesset kind of tolerating its development over time in that it could always have been changed with 61 votes. So, Yuval, give us a bit of an overview of how this system developed and why it developed a kind of, with the toleration in a system of ultimate legislative supremacy that the legislature actually sort of let it happen.

[Lemonade Advertiser]

Yeah, I mean, it's an interesting story, but yeah, and I think it is, it has to do with, with perhaps two or three aspects of the situation. One is that for many years Israel had quite strong consensus around a number of institutions, one of them being the idf, the other being the Supreme Court.

[Podcast Host]

The IDF being the army.

[Lemonade Advertiser]

The army. So the Supreme Court would obtain until 20 years ago approval ratings of about 80% in polling by the Israel Democracy Institute and other organizations. So the idea that the Supreme Court is exercising review on governmental policy was something that was quite acceptable. I mean, the change has come in a way from the late 1990s onwards when the Court did assume more power in parallel politics, especially on the right, started organizing more and more around the idea of pushing back against some of the liberal decisions that the Court was issuing through challenging the authority of the court. And we are seeing a gradual erosion of support for the court. So now according to our polling at the Idea Israel Democracy Institute, the court has about half of the approval ratings, the support, the diffuse support that it had 20 years ago. So now it is about 40, 41 or 42% support. So we have seen a decline in the, in the level of political support for the Court, which is not just because this has happened. It's because there has been an intensive campaign against the Court for years now, a couple of decades, which has created a public opinion which is much more open to changing the balance of power. And the second factor which is, which is significant here, which explains why this hasn't happened until now, is that the, the governments in Israel for always, I mean since the state was established, were always coalition governments. There has never been a party that has obtained more than 50% of the seats in Parliament. This is a course, a very different system than the American system. It's a system where you have, you could have in parliament 10 different parties or eight or 12, and they have to strike a bargain. They have to reach, build a coalition. And up until this government, all governments that we have seen have had parties that were quite supportive of the Court, or at least they didn't see the Court as in an hostile manner. And therefore they simply exercised sort of a veto power over attempts to tamper with the, with the tradition in which the court in Israel has this authority. What is unique about this government is this is a full, we call it Malay, Malay, full right wing government. And there is no longer within the coalition any element that is, that has any pro court sentiment and that makes a development that, like said, was an organic settlement, a development that has been an organic development and gradual development, but not really embedded in a, in a, in a strong constitutional text. It makes it much more vulnerable to these sort of changes.

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[Customer Review Voice]

Okay, so some of it, some of the blame lies with the Court in the sense that the judges were not good politicians. I'm not sure we want to expect judges to be good politicians. They are judges, not politicians. But certainly looking at it from an outside perspective, decisions of the Court alienated certain important segments in the Israeli society. I think the most critical one was the ultra Orthodox segment of the Israeli society, which is a very important and growing part of the Israeli society and the Court, in several decisions, some of them constitutional decisions, so striking down laws that were important to the ultra Orthodox community and other in administrative decisions, the Court alienated this segment of the Israeli society. And certainly this was not politically, as I said, perhaps wise. The second point is that the Court intervened in areas in which I think at the end of the day, the Israeli public viewed the fact that the Court intervened in these areas as problematic. Religion and State, for example, was an area in which the Court intervened. And I'm not sure that the important parts of the public viewed favorably the fact that the Court intervened without any direct connection to the actual result of the intervention, but the fact that the Court was willing to intervene in this area. The Court, I must say, reluctantly intervened in many of these areas. But at the end of the day, I think the public saw them as areas in which the Knesset should have decided and not the Court. And I think the last perhaps mistake or reason or the blame you could put at the door of the Court is that justices, and I think unnecessarily speaking about the role of judges in making policy and the constitutional revolution and judges as partners in the legislative process, these kinds of the rhetorics of the judicial system, I think not only Raised eyebrows, but also created some kind of resentment in certain parts of the Israeli society towards the Court.

[Podcast Host]

Yuval, what do you think? Is there an element of this that is a kind of legitimate backlash against a court that has a kind of grandiosity and a sort of proud interventionism that a democratic polity eventually bristles at?

[Lemonade Advertiser]

Well, I mean, it's. I tend to agree with Amichai about the statements that some of the grandiose statements and also some actually were found in decisions in which the Court actually rejected the petitions, but made very nice statements. When you look at the actual record of, you know, how many, in how many cases did the Court strike down legislation or in how, what percentage of administrative cases are being admitted? The numbers are quite minimalist. I mean, the Court has not, you know, has struck 22 laws since 1995 when it assumed its power. So that's not, that's really. I mean, when you compare this to other Supreme Courts around the world, this is not any. This is not a large number. And you know, many of our friends and colleagues at the NGO Society sector, I mean, they laugh at the idea that the Supreme Court is an activist. They see that Supreme Court actually is a very conservative court. So I think it's like in many things in life, it's a little bit in the eyes of the beholder. I mean, the Court was not particularly activist in its work. It was not probably also particularly conservative. It decided its cases, it made some statements, although I should say many of these statements go back decades ago. I would also say, and that's also also important for the analysis and perhaps how we should evaluate the current situation. The composition of the Court has changed over the years. The fact that there have been here right wing governments, successive right wing governments, had also had an impact on the composition of the Court. The Court today is much more conservative than it was 10 years ago and certainly 20 years ago, because politicians were quite skillful in appointing more conservative judges. So in a way, for many of us who are following the Supreme Court and its case law, the urgency for the reform package seems very strange. Because even if there has been, nothing would have been done. It's quite clear that within five years, three, five years, I mean, the majority on the Court would have been conservative anyway. Are there some legitimate grievances? Yes, maybe some. You know, not all, not all decisions are great. And the Court might have, you know, overstepped its limits in a few cases with respect to a few constituencies, at least from their perspective, maybe has not conducted itself in the most prudent manner. But by and large, I think it's, I mean, we have to look at other explanations and that is the wishes of politicians who have the opportunity to pursue their policies without legal constraints.

[Podcast Host]

Okay, so before we turn to the prospects of passage of, of this package, I, I just want to ask you both about the comparison to American discontent with the judiciary, which has in the last 50 years principally been the province of the political right as in Israel, and has had some sort of similar sounding elements. The talk of judicial activism and the talk of, you know, unelected judges usurping the power of, of, of the people's representatives, but has increasingly migrated as the court has migrated to the right, has increasingly become an anxiety of the left and the center. To what extent is the Israeli anti judiciary movement and judicial reform movement similar to, and to what extent is it different from the optically seeming American complaints about the Supreme Court and the lower courts?

[Customer Review Voice]

I think there is first of all direct American effect on, on the way Israelis act. You can see it so the research, think tanks and, and politicians who speak about judicial activism, we can see that they have learned from ideas coming from the United States and have adopted the rhetoric and the claims that are made in the United States. And the framework seems to be different. I think there is a difference because, and as you stated earlier, the Israeli court has developed in the last generation. So the idea of constitutional democracy has not been here a generation ago. And Israelis do not have this more than 200 years of history of a court striking down laws. And it's easy for them to speak about the previous generation. Right? The ideal court of a previous generation that has been able to maintain democracy without striking down laws and without judicial activism and without intervention. So in a sense, it's much easier for the politicians and academics critical of the court to imagine a democratic state without a court.

[Lemonade Advertiser]

Maybe I can add, Ben, that the appointment system in the United States is of course also being put forward within debates in Israel. It's an example that you can be a democracy and have, and have politicians appoint judges or justices. So this is I think, an important component. I think part of, more broadly, part of the rhetorical tools that are being used by supporters of the reform is a cherry picking strategy where they bring the judicial appointments are important from the United States, the override is important from Canada, the super majority from South Korea, etc. Etc. So there is, I think, also this legitimizing role. Of course, one of the big differences between the American system and the Israeli system, other than the fact that The US has many other checks and balances and it, it is a federal state, et cetera. Is also that in the US in recent decades there has been a fluctuation of political power between Democrats and Republicans in Israel, as I said before, it seems that this is a much more stable situation. So the party that is in control of Parliament will be in a position to take control over the judiciary on a more or less permanent basis.

[Podcast Host]

This brings me to the question of how big a deal this really is. On the one hand, you say the Israeli left has been concerned about the state of Israeli democracy for a number of years now. And from an outsider perspective, there's a certain amount of crying wolf that, you know, every, every government is the most right wing government in history. Everything that, that a government does is the end of, you know, something that is important. And so I think there's a bit in the United States of kind of fatigue with the sort of sense that everything is on a precipice. On the other hand, I look at these reforms and I say, wow, you know, this really does seem like it. Everything's on a precipice. And so I'm, I'm interested. Your, your series is extremely measured and, and careful in its rhetoric. And yet it says in the opening essay that you don't mean to sound neutral about it. This is a, a big deal and very dangerous. So, Yuval, I'm, I want to, I want your sense of how big a deal it is and how dangerous it is. Is this a thing where Israel will be a little bit less democratic if this passes? Or is this like the Polish government or the Hungarian government coming in in a democratic fashion and stripping away the judiciary's independence in a fashion that creates effectively not a one party state, but a one block state?

[Lemonade Advertiser]

Yeah, I think it's very serious, and I mean, you are right that there have been Israelis that have identified already phenomena such as the occupation or the corruption trial of Netanyahu and other problematic developments as the end of democracy. I think I will speak also for Amichai. We were not part of that camp. There were challenges, there were problems. But I think what we're seeing here is on a different scale because it involves the dismantling of the one and only check that currently exists on executive power and which is also in control of legislative power, and that is the judiciary. This is the one safeguard that Israel democracy has. I think for many years there was a concern about the sustainability or the, the robustness of this safeguard, but now we are seeing a full fledged all out assault on this, on this safeguard. And it is, it is coupled by weakening of the whole idea of a rule of law, of, of law in the country. Because the logic of this development is, like I said before, is to remove all obstacles on the path of the government. So the government will choose the lawyers that will represent it. It will not follow their opinion if it's not a legal opinion, if it's not advantageous. It will appoint judges in the Supreme Court. It will ignore decisions of the Supreme Court by passing an override if it feels like it. It will deprive the court from initially, from reviewing. So you ask yourself why is such a radical reform being pursued? And the answer must be, is that this is part of a plan to introduce essentially a regime change now. So I think the Hungary and Poland model is quite appropriate. I mean, the comparison. And I also think that it would not be surprising and many Israelis think that this is going to be the next stage in the so called regime change, that there would be interference with the voting laws in Israel with the view to ensuring that the current coalition more or less stays in power for the foreseeable future. Because the logic of, I mean, giving so much power to the executive is actually an indication that you envision yourself as being the executive from here onwards because you wouldn't want the other party when it is in power to have such extent of unlimited power.

[Customer Review Voice]

If I may add two short points. One is that if you look at the demonstrations and the opposition to the suggestions, you know, it's the first time, I think in at least in my memory, right, in the recent decades that so many Israelis have gone to the streets. And it's the bedrock of Israeli society. So there are letters from reserve pilots in the Air Force saying we will not serve as reserve pilots under this regime, right. And, and economists and entrepreneurs claiming we are taking our companies out and in large numbers. So that's the first point. And the second point relates directly to your question. One important reason that all these claims, what you call the crying wolf, did not materialize before is exactly because there was a limitation. So the processes, certain processes in the Israeli society were somewhat delayed or mitigated by the fact that there was an obstacle for them in the presence of the court. Dismantling the court would of course also bring back all the previous ideas and plans that perhaps did not materialize, but will now materialize. So you'll get not only the fact, as Yuval said, that changing the governments in free elections will become much more difficult, but also a lot of plans that did not take place will now take place.

[Podcast Host]

All of which leads to the question, what are the prospects for this actually passing? When, you know, in, in the United States, the fact that the President wants a law doesn't mean it's going to happen. When the government of Israel wants a law, it almost per se has the votes to pass it. This package has passed its first reading of what needs to happen before it becomes finally passed.

[Lemonade Advertiser]

Yeah. So under the Israeli system, laws have to pass three readings in the Knesset. Some of the bills who have to pass four readings depending on whether it originates in the government or private members of Knesset.

[Podcast Host]

And what is a reading?

[Lemonade Advertiser]

A reading is simply an up and down, up or down vote. So there will be a reading on the draft. Some parts of the package have already passed first reading, then it goes to a committee. The committee would then discuss the bill on article by article, section by section basis, would vote on each section and then it would go for another section by section vote in the, in the, in the, in the plenary of the Knesset and then the whole bill would go for an up or down vote. Now that sounds quite complicated, but if the government wants to do it, it can do everything within a week. And there have been many laws, including basic laws in Israel that were passed from start to end within a week. So in terms of when will the process run its course? Currently it is predicted to run its course by the end, by the Passover break, which is in about a month's time. So we are talking about a rather short timeline in which the government can pass these laws. It currently has, it still has the votes because it's a coalition of 64 members of Knesset, which is again quite remarkable. The elections had surprising results. There were two left wing parties that didn't pass the electoral threshold and hence the right wing not only won the elections, but it won it handily, much more than it was predicted. And I think this is another reason why they are pushing quite aggressively now because they sense that this is a golden opportunity for that part. Will they pass the laws? It's really at this point in time, it's up in the air because there is a strong political push on the government side, but they are also encountering very strong resistance. I mean, the demonstrations are massive and they do have their toll. I mean, the government's approval ratings are plummeting. According to recent polls, if elections would take place now, they would lose the elections, according to some polls, even would lose it quite badly. There is also an economic pressure that is growing by the day these reforms are not only not popular within the Israeli electorate, they're also not popular with the markets. So the Shekel is going down, is losing current, is losing its status. I mean, the stock exchange is going down, as Amichai said, investment is being pulled out. And of course, the reaction, the international reaction, action is increasingly critical. And the question is whether, at the end of the day, the Netanyahu and his government will be able to withstand this amount of pressure. The final point, which I want to mention, that even if the legislation passes Knesset, it will go to the Supreme Court. And the Supreme Court would be in a very interesting position, to put it mildly, in which it would have to review the validity of legislation that takes away its own power. And I think it is fair to say that there is a good likelihood that the court would strike down the legislation under a variety of legal doctrines, and that would throw the state into a complete state of chaos, because at this point in time, it would no longer be clear whether what is the legal situation, because the government would deny that the court has the authority to strike down the legislation. And many officials would have to choose whether they would follow the instruction of the minister or the, or the decision by the court. So it's really, we are headed towards a very high cliff.

[Podcast Host]

So just on the final passage question, what would be the mechanism by which it would fail to pass? Is it that the government would somehow fall? Is it that Netanyahu would, seeing the unpopularity of it and the negative reaction would pull it? Or is it that some members of the coalition would defect and vote against it? If you're imagining something between now and Passover, where that prevents its passage, what does that look like?

[Customer Review Voice]

So the assumption is, is. And from a personal standpoint, you know, as an Israeli, it must be that there is an area in which all parties can come to some kind of an agreement which will protect the basic features of the Israeli democracy and respond to some of the claims that the current coalition, those suggesting the reforms, some of the claims that they raise, there is such an area. Whether the parties will be willing politically to compromise and get to that area is the difficult question. But I think the best case scenario is some kind of an agreement. Of course, the coalition will be pushed by international economic forces to get some kind of an agreement. And the opposition, you know, it's in a very weak position because without an agreement, the possibilities of losing the vote. So that's a best case scenario. As Yuval said, it's not at all clear that the parties will go to it. The coalition, of course, has a very strong interest to pass as much as it can, and there is now a race between the political powers supporting the passage and the economic and international powers pushing against it. And as long as they'll do it very quickly, then I think they have a good chance of passing it. And also in the opposition, it's true that they might lose the vote in the Knesset, but losing the vote, as Yuval said, is not the end of the game. There is still this decision in the Supreme Court and the next elections, and perhaps some of the opposition parties are looking at the next election and viewing a loss in the current round as the best possibility of winning the next election.

[Podcast Host]

We are going to leave it there. Amichai Cohen, Yuval Sheni, thank you both so much for joining us today.

[Lemonade Advertiser]

Thank you.

[Customer Review Voice]

Thanks for having us.

[Benjamin Wittes]

The Lawfare Podcast is produced in cooperation with the Brookings Institution. Our audio engineer this episode was Noam Osband of God Rodeo. Hey folks, are you a material supporter of Lawfare yet? If so, thank you. If not, you need to become one because this podcast doesn't make itself, Lawfare doesn't write itself, and projects like this require a lot of support to make happen. The Lawfare podcast is edited by Jen Patya Howell. Our music is performed by Sophia Yan. And as always, thanks for listening.

[Ollie Advertiser]

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[Lemonade Advertiser]

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