Judicial Reform in Israel: A Case Study on Democracy
Prime Minister Benjamin Netanyahu has been a leading advocate for his coalition’s plans to redistribute government power through a Knesset override clause. Photo by Jolanda Flubacher.
On January 4, 2023, Israeli Justice Minister Yariv Levin publicly announced plans to drastically reshape Israel’s judicial system, shifting power away from the Israeli Supreme Court and into the hands of the Knesset majority coalition. Minister Levin’s proposal centers around a Knesset “override clause” that would effectively turn Supreme Court rulings into strong recommendations which the Knesset could override with a simple majority vote. If passed, the proposed reforms would significantly alter the checks and balances and power dynamics between Israel’s executive, legislative, and judicial branches.
Before launching into the details of the proposed reforms, it is critical to first understand the nature of Israel's democratic governmental makeup. The Israeli government is a parliamentary democracy, consisting of a 120-member Knesset which serves as both the primary legislative body and the house of representatives. Every four years, the Knesset holds elections, with seats assigned to different parties in proportion to the percentage of the national vote each party receives. Once votes are tallied, the President officially gives the leader of the party with the most votes the first opportunity to establish a majority coalition and take control of the ministries.
Crucial to the foundation of Israeli democracy are the Basic Laws of Israel. This system effectively grounds the government in certain core values, similar to what a constitution would do. Basic Laws are only able to be passed or amended with a Knesset supermajority, which usually requires a minimum of 80 votes. Importantly, the Basic Laws of Israel were not agreed upon as a constitution. At the founding of the state, the first Knesset was not able to successfully ratify a constitution, so they legislated the Basic Laws to function in a similar way and eventually serve as the basis for a future constitution. This distinction between Basic Law and constitutional status raises questions critical to the functioning of Israeli democracy. What happens when a law passed by the Knesset contradicts, or appears to contradict, a Basic Law? Which laws should be considered superior, and which branch of government has the right to make that determination?
The system is currently set up in such a way that Basic Laws enjoy supremacy over regular laws passed by Knesset. Moreover, the Supreme Court employs the power to strike down legislation that contradicts any Basic Law. This status quo has been in effect since the landmark 1995 Supreme Court ruling in Bank Mizrahi v. The Minister of Finance. In this ruling, which centered around two new Basic Laws passed by the Knesset, Chief Justice Aharon Barak interpreted the “limitation clause” as elevating Basic Law above all regular Knesset legislation. Under the Court’s interpretation and Chief Justice Barak’s ruling, the Supreme Court endowed itself with the power to void all legislation in conflict with the Basic Laws. Just like the U.S. Supreme Court did in Marbury v. Madison, the Israeli Supreme Court granted itself judicial review.
Under the current government’s proposed changes, judicial review is the primary Supreme Court function in jeopardy of removal. The reform, backed by Prime Minister Benjamin Netanyahu and his 64-seat majority coalition, is centered around a proposed “override clause,” which would allow the Knesset to pass laws overriding Basic Laws. Under these new rules, Basic Law would no longer be supreme, and the Supreme Court would lose its power to overturn legislation infringing on Basic Law. In other words, enacting the Knesset override clause would mean the end of judicial review for the Israeli Supreme Court.
The proposed reforms have been the center of political controversy since Justice Minister Levin’s announcement. Indeed, such reforms will inevitably set the tone for a radically different Israeli political and legal system. Major political figures in the nation and around the world, including Israeli opposition leader Yair Lapid and multiple former senior ministers, have denounced the proposed changes as serious threats to Israel’s democracy. French President Emmanuel Macron and U.S. Secretary of State Antony Blinken both have offered strong statements in opposition to the proposal as well. President Macron even hinted that if Israel enacts the changes, it will severely erode France’s perception of Israel’s democracy.
On the ground, a huge contingency of Israelis have rallied against the proposed reforms. For more than five weeks now, tens of thousands of Israelis have taken to the streets to protest what some view as a stepping stone from democracy to autocracy. Many of these protests have taken place in major cultural hubs across the country, including Tel Aviv and Haifa. Recently, prominent writers Yossi Klein Halevi, Daniel Gordis, and Matti Friedman wrote a joint opinion piece in the Times of Israel calling on American Jews to speak up in harsh criticism of the judicial reforms during what they call “a moment of acute crisis in Israel.”
Those in strong opposition to the proposed judicial reforms primarily argue that enacting a Knesset override clause—thereby curtailing the Supreme Court’s power to conduct judicial review—removes what is effectively the only check on legislative power within the Israeli governmental system. The unicameral nature of the Knesset makes passing legislation quite easy, especially when considering the fact that law passage only requires a simple majority of 61 votes. Thus, a 61-seat majority coalition would just have to agree on a law, propose it, and then pass it. They need not pass the scrutiny of any other branch of government. Critics of the judicial reforms argue that in this environment, which is already conducive to new legislation being passed, the Supreme Court’s power to test enacted laws against supreme Basic Laws is the only barrier preventing unilateral majority power.
Proponents of the proposed override clause respond to cries against tyranny of the majority by pointing to the illegitimacy of Basic Law supremacy. They argue that judicial review was a power awarded to the Supreme Court by the Supreme Court itself, rather than by a formal constitution. Organizations like the Kohelet Policy Forum argue that the perceived power of judicial review exercised by the Supreme Court since the Mizrahi decision has been unjustified judicial activism. Put simply, the argument is that Chief Justice Aharon Barak effectively turned the Basic Laws of Israel into a constitution without the consent of the legislature nor the public. Turning the Basic Laws into a constitution is a form of signaling the State of Israel’s overarching values that directly determine legislative decisions and the direction of the country’s democracy. Making this change without the consent of the electorate and their elected officials is viewed as unfair because Israel’s values should be agreed upon by a popular majority, not by a majority of unelected judges. The override clause—and the return of ultimate legislative authority to the Knesset—is thus advertised as a proxy for restoring power to the citizens of Israel and delegitimizing an undemocratic—yet highly impactful—court decision.
Ultimately, the ongoing debate about the supremacy of Basic Laws and the legitimacy of Israeli Supreme Court judicial review makes for a fascinating case study on democracy. Israel is faced with a democratic paradox. On the one hand, without a formal constitutional convention, can Basic Laws truly be enshrined into constitutional status? On the other hand, if Basic Laws are not to be considered supreme to some extent, then what differentiates them from any other law passed by a majority government? What prevents them from becoming elastic and subject to significant change like regular laws?
The Israeli government has a critical choice to make. Prime Minister Netanyahu, Justice Minister Levin, and the Knesset majority coalition could continue to press forward with their plans for judicial reform, ultimately passing the override clause and giving themselves the final say on all legislation. They have, in fact, made it quite clear that they intend to move forward with this plan, regardless of the backlash. But at what cost?
The unicameral legislative body—the Knesset—would be given unchecked legislative power with no oversight. In a parliamentary system, this unchecked power would mean that the majority coalition could pass laws as they please, ignoring the large constituency of opposition leaders and, more importantly, opposition voters. The thousands of protesters arguing against these judicial reforms point to a perceived transition from democracy to autocracy, directly articulating the deep fears of unilateral majority power among Israeli citizens. A majority that acts with no regard for such a significant portion of the electorate minority is, as critics of the judicial reform warn, undemocratic.
But what about the other option? Adhering to the status quo—and continuing to respect the Supreme Court’s declared power of judicial review—would mean acknowledging the legitimacy of a pseudo-constitution enacted without the consent of the electorate. Chief Justice Barak’s decision in Mizrahi turned Basic Law into what is effectively a constitution without consulting the elected Knesset, nor the voters themselves. For that reason, the Mizrahi decision, for better or for worse, was also quite undemocratic.
If nothing else, this paradox reveals the fragility of democracy void of a constitution. In its current state, the Israeli government appears to be left with an all-or-nothing decision. Either the judiciary or the legislature will end up with a final say on whether or not certain legislation can be passed. Compromise will almost certainly be impossible until a constitutional system is agreed upon—by the voters and the legislature—whereby the legislative process would be a joint effort, with each branch of government balancing the other. Undoubtedly, in that system, judicial review would be a vital aspect of the judicial branch’s check on legislative power. But it needs to be done on moral political grounds, with formal consent from the voters and an official process in the Knesset. Ultimately, the proposed judicial reforms must drastically increase the sense of urgency around formalizing a constitution for the State of Israel.
In the immediate future, however, a formal constitutional convention is likely an unrealistic solution, given the multistage process and supermajority consent it would take to pass. So, as the partisan fighting continues to intensify, compromises that could be feasibly implemented in the near future must be explored. With the partisan divide in mind, and in an attempt to reckon with the fact that both arguments include undemocratic elements, Israeli President Isaac Herzog proposed a compromise on February 12, 2023. President Herzog laid out a plan to implement slower, more deliberate judicial reform. First on his agenda is legislation that clearly defines the distinct status of Basic Laws and ordinary Knesset laws. If agreed upon, his proposal would cement Basic Laws as supreme to other Knesset bills and give the Supreme Court the power of judicial review, but it would also allow for a Knesset override with a large enough majority. Other elements of the plan would ease judges’ caseloads, increase judicial efficiency, reconfigure the Judicial Selection Committee, and require judges to use stricter scrutiny when employing the judicial doctrine of “reasonableness.”
Soon after President Herzog’s speech, Justice Minister Levin rejected the proposal and continued to push forward with his agenda. His refusal to entertain the compromise is problematic as it represents his relatively narrow-minded vision for Israeli democracy. Instead of engaging in the conversation and working towards figuring out an appropriate balance of power across governmental branches—which, for what it’s worth, has not yet been achieved—the powerful proponents of Levin’s plan ignore all opposition. Unfortunately, this also means that the coalition either does not understand or refuses to acknowledge the dangers of centralizing power in one branch.
It remains true that the Mizrahi decision was likely beyond the scope of the court’s prerogative. Nevertheless, judicial review is necessary as a means to check legislative power by subjecting laws to a consistent higher standard. This process is effectively designed in such a way to outlast fluid partisan politics. Israeli politicians will have to formulate a plan along the lines of President Herzog’s recommendations: cement the status of the Basic Laws, formalize a more limited judicial review, and implement only a supermajority rule Knesset override. Only once steps are taken to stabilize the balance of governmental powers will Israel be in a position to begin the momentous task of ratifying a formal constitution and solidifying the democratic future of the nation.
Elisha Baker is a Staff Writer for Columbia Political Review and a freshman at Columbia College planning to study political science and business management. You can often find him golfing on his favorite course in the world, Caesarea Golf Club in Israel.