Examples of what happened after leaders brought judiciaries to heel elsewhere have helped galvanize opposition to Benjamin Netanyahu’s proposals.
In proposing his judicial overhaul, Prime Minister Benjamin Netanyahu of Israel has said he was restoring the balance of power between elected lawmakers and unelected judges. “It is not the end of democracy, it is the strengthening of democracy,” Mr. Netanyahu said last week, before a huge wave of protest and civil unrest forced him to put his proposals on hold.
But Mr. Netanyahu’s argument obscured what was at stake, and the outpouring on the streets has in part reflected the success of his opponents in persuading Israelis that his plan actually threatened to severely undercut their country’s democracy, not strengthen it.
Key to making that case has been the example of other countries in which diminishing the judiciary has become a tool for fatally wounding democracy. “We have studied this dimension of so-called judicial reform in Hungary and Poland and Turkey, and we were aware of what was coming,” said Yaniv Roznai, a law professor at Reichman University in the city of Herzliya who has been a staunch opponent of the plan.
Professor Roznai has been talking for months about the “risk of creating a monster,” as he put it, by eliminating the courts as an effective check on majority rule. In Hungary, for example, Prime Minister Viktor Orban and his conservative Fidesz party won national elections in 2011 and made a series of legally permitted changes to the Hungarian Constitution. They began by changing the process for appointing judges to give Parliament more power to fill vacancies, much as Mr. Netanyahu has proposed.
Like Mr. Netanyahu, Mr. Orban said he was “strengthening” democracy. He said that giving Parliament control of judicial appointments would align Hungary with the method of selecting federal judges in the United States. Mr. Netanyahu’s allies have similarly invoked the United States as a model for their plan for judicial appointments.
“Look at what happens in the U.S.,” Mr. Netanyahu’s justice minister, Yariv Levin, said last month in an interview. “In the U.S., judges on the Supreme Court are nominated by the president, and confirmed by the Senate.”
The Judicial Crisis in Israel
- U.S. Relations: The situation has increased tensions with Washington and was volatile enough that the Biden administration appeared uncertain of how to respond to Prime Minister Benjamin Netanyahu’s decision to delay a plan to weaken the judiciary.
- Pressure Campaign: Before Netanyahu changed course, the Biden administration warned the Israeli government that its image as the sole democracy in the Middle East was at stake.
- Netanyahu’s Balancing Act: The Israeli leader, who has a reputation as a magician who can escape any political straitjacket, is caught between his far-right coalition and public anger over the plan.
- A Win for Protesters: The opposition to the judicial overhaul plan is succeeding by uniting some of Israel’s most influential institutions.
Mr. Netanyahu and his coalition also proposed reducing the power of the judiciary by giving the Parliament, or Knesset, the power to override decisions of the Israeli Supreme Court by majority vote. Supporters compared the proposal to the power legislatures have to override decisions of the Supreme Court in Canada.
Legal scholars point out that the Israeli system of government lacks the additional checks on majority power that the United States and Canada have. These differences, the scholars said, explain why Mr. Netanyahu’s proposals to graft features from other countries onto Israel’s parliamentary system could have damaging implications for its democracy. “Any comparison of the U.S. and Israel has to emphasize the differences between them,” said Ran Hirschl, a professor of law and government at the University of Texas at Austin.
To begin with, unlike the United States and Canada, Israel has no written constitution. This means there is no Bill of Rights and few legal provisions that require an amendment process that’s more difficult than passing an ordinary law.
Israel (like Hungary) also has a single house of Parliament, the Knesset, rather than two houses as in the United States, which can each check the power of the other. There is also no clear separation between the executive and legislative branches and no federalist system that delegates certain powers to states or provinces. “Political power is concentrated within one legislature,” Professor Roznai said.
Power can wind up in just a few hands. “The ministries of government are led by the coalition leadership, which could be five or six politicians who control their own parties,” Professor Roznai said.
What Israel does have, however, are what are known as the Basic Laws, statutes that define national legal standards.
In 1992, the Knesset passed a Basic Law of Human Dignity and Liberty, which the Supreme Court has used to strengthen its role in checking majority rule and to reverse, among other things, government decisions about national security and the primacy of Orthodox Judaism in public life.
For example, the court banned forms of torture in 1999 and said in 2021 that people who convert to Judaism through the Reform and Conservative branches of Judaism count as Jews and are entitled to become citizens.
Decisions like these led some right-wing and religious communities to see the court as their enemy. The roots of Mr. Netanyahu’s proposed judicial overhaul lie in that anger.
In Hungary, after Mr. Orban’s election, no effective opposition arose against his changes to the judiciary. Along with changing how judges were selected, the government expanded the Constitutional Court and filled the new seats. As this was happening, a slim majority of the country’s Constitutional Court struck down laws the government passed, including lowering the retirement age of judges to open up more seats on the bench and a program to register new voters.
But the institutional resistance didn’t last. Mr. Orban’s government enacted another set of constitutional amendments, which among other things nullified the Constitutional Court’s rulings. The government also used legal means to take control of the national media council, the election commission, and other key institutions. By the time Mr. Orban ran for re-election in 2014, he and his party had destroyed the conditions for any kind of vibrant opposition.
Kim Lane Scheppele, a sociologist at Princeton who lived in Hungary for four years in the 1990s, documented the country’s slide toward one-party rule. The world was slow to catch on, she said, because Mr. Orban didn’t behave like autocrats before him.
“There’s a script for authoritarianism,” Professor Scheppele said. “You launch a coup and commit human rights violations on a mass scale. If instead you have a free and fair election that produces an autocrat who dismantles the Constitution, as long as it’s all done legally, some people will say, this is what democracy looks like. Your side lost. Tough.”
Mr. Netanyahu’s position is complicated by his ongoing trial on charges of corruption, though he denies a connection to the proposed judicial overhaul. A poll released Monday by Kan, the public broadcaster, showed that nearly two-thirds of Israelis want the court legislation to stop. But Mr. Netanyahu’s far-right coalition partner, Itamar Ben-Gvir, agreed only to a pause, vowing that the judicial overhaul must continue.
The protests in Israel suggest that much of the public has been persuaded that elections are not enough to safeguard their democracy.
“Majority rule is the essence of democracy. But it’s not a sufficient condition,” Professor Roznai said. “You need some separation of powers, some judicial independence, some protection for rights. That is what people here see.”