Red Lines for Israel’s Constitutional Reforms

—Moshe Cohen-Eliya & Iddo Porat, College of Law and Business

There appears to be a revolution of sorts on the horizon of the Israeli legal system. All the parties that form the current right-wing coalition ran with a platform of reforming the Israeli legal system and once elected they included the following within their coalition agreements: 

“All the coalition parties would support all legislation proposals, including in Basic Laws, as suggested by the Minister of Justice, with the purposes of, inter alia, regulating the relationship between the branches of government and their powers, and in particular the relationship between the Knesset and the government vis-a-vis the judicial system and the Supreme Court and the method of selecting judges. All of this to restore the proper balance between the branches. The legislation will also include enacting Basic Law: The Legislation, and an override clause. All law proposals mentioned in this article will be absolutely and fully prioritized in any circumstances over any other legislation.”[1]

On the agenda are not small changes in discrete areas, but rather major changes in many areas of law at once. In addition, while previous right-wing governments in Israel were blocked from radical changes in the legal system by the center-right or center-left parties that were part of the coalition, this government does not include any such parties within the coalition. Rather it includes in addition to the main right-wing Likud party only Ultra-Orthodox parties and an extreme right religious party all which support reforming the legal system. In this post we wish to explain the Israeli (as well as global) context of these changes, divide them into two categories, and suggest our own initial assessment of the dangers that lie ahead, as well as the opportunities for a constitutional new deal for Israel.

The current reforms can be viewed as part of a global reaction and backlash to several decades of an ascendance of liberal and cosmopolitan worldview. The worldview has reached its peak in the late 1990s, after the dismantling of the iron curtain and of apartheid in South Africa, and what looked like a vindication of human-rights-based constitutionalism. However, in the last two decades there is a growing counter movement, which is conservative, nationalist, and at times populist. This backlash has not passed over the courts, and as forebearers of the previous liberal ethos – sometimes termed global constitutionalism – they were targeted in many countries for reform and change, resulting already with a conservative judicial turn in the UK, Canada, and the United States.[2] The conservative backlash is also related to the increase of political polarization in many countries[3]. Enhanced also by the echo chamber effect of social media, a polarized battle for political control and moral hegemony has opened up, engulfing all institutions, including the courts.[4]

Israel’s judiciary has followed the global liberal turn in a strong departure from a previously more restrained judicial approach influenced by the British model. Beginning already in the 1980s the Israeli Supreme Court began adopting a purposive interpretation and standards-based doctrines such as reasonableness and later on proportionality, and opened up its doors to public interest litigation by watering down the doctrines of standing and justiciability.[5] In the mid-1990s the Court embarked on the Israeli “constitutional revolution” in which, over several decisions starting in the Ban HaMizrahi case of 1995,[6] it had interpreted the two human-rights Basic Laws of 1992 as turning Israel from a parliamentary into a constitutional democracy and concluded that the Basic Laws form a constitution protected by judicial review. These doctrinal changes allowed the Court to effectuate a liberal, human-rights based perspective, through which it protected the rights of Arabs and Palestinians, women’s rights and LGBTQ rights, and limited Jewish religious incursions on the public sphere. One of the most influential driving forces of these changes was the former President of the Supreme Court, Aharon Barak, who served on the Court from 1978 to 2006.[7]

What we witness today is an attempt to completely turn on their head almost four decades of Supreme Court jurisprudence, and to dismantle the entire edifice associated with Aharon Barak, using a combination of two strategies which we term: weakening and control.

The weakening strategy aims at reducing the political powers of the Court and of other legal institutions, such as the attorney general’s office. The control strategy aims at gaining control (or at least offsetting a perceived advantage) of the Court and other major legal institutions. Included in the weakening strategy in Israel are the following reform suggestions: enacting a notwithstanding clause that would allow the Knesset to override the provisions of the Basic Laws (either with or without a requirement of a supermajority); reducing Basic Law: Human Dignity and Liberty to the status of a regular law; abolishing the reasonableness test within administrative law; reintroducing the standing and justiciability tests; and dividing the attorney general’s function into two separate functions – government legal adviser and head of the prosecution. Included within the control strategies are: reforming the method of selecting judges so as to enhance the control of the government over the nomination; lowering retirement age of Supreme Court judges from 70 to 67, resulting in the retirement of three liberal judges; increasing political control over legal advisers within the government ministries.[8] In addition to these structural reforms, the reforms would also put in place substantive changes to Israel’s legal regime that would strengthen the Jewish element in the Israeli balance between its Jewish and Democratic nature. Thus, there is the suggestion to add religious-based exemptions to anti-discrimination in privately held public accommodations as well as a suggestion to enact Basic Law: The Study of Torah, that would constitutionally protect the right to study Torah and counter the Court’s abolition of the law that exempted Yeshiva students from serving in the Army. 

These are far reaching changes, even if only some of them would be adopted. In addition, these are many changes all at once, and their accumulation makes for an especially powerful shift. The proponents of these reforms argue that these suggestions constitute a legitimate move for political change. First, a democratically elected government can apply a policy of change and reform to its legal system, even a far-reaching one, especially if it runs on the platform of making such reform. Secondly, starting in the 1980s the Court has gradually deviated in terms of its liberal worldview from the Israeli political median, so that one can view some of these changes as a reaction on the side of the more conservative strands in the Israeli public. Thirdly, the Court has also acquired, through its decisions, considerably more political power than it had a few decades ago, without any institutional change to counter this change or increase its political accountability. As with any other organ of government, a concentration of power within one institution could be problematic. 

There is some merit for these claims, however only to some extent, as they cannot justify all the changes proposed. There must be in place democratic red lines lest Israel falls prey to the dangers that have plagued other systems that had a conservative backlash, such as Hungary and Poland and even, to a much lesser degree, the United States. We therefore suggest two red-line principles that the current changes must abide by and note the danger that they pose for these principles: 1. the changes must “leave open the channels of a political change”.[9] 2. The changes must not infringe on core human rights, and on the rights of minorities. 

Keeping clear the channels of change means ensuring there is no decrease in competitive democracy that blocks the ability for political change. The conservative backlash in Hungary has created exactly such a situation when PM Viktor Orbán used redistricting of areas of voting, manipulation of election rules, and the takeover of the media and of the courts to make for an uneven playing field in favor of his party. In Hungary what might have reflected a genuine preference for conservative values and rejection of European Union liberalism has by now put in place an authoritarian regime so that a liberal resistance to Orbán through elections is much harder to attain.[10]

Some of the proposals to control or weaken the Court have a dangerous potential of restricting the channels of change. The Supreme Court is an important component in keeping the channels of change open, as the final authority in the supervision over election rules and as the protector of those rights necessary for a fair democratic process. Thus, while enhancing the political accountability of the Court may be a legitimate goal, controlling it politically is not, and the line between the two can be a fine one. The suggestion to lower the retirement age for judges, effective immediately, and thus force into early retirement 3 liberal judges, if coupled with a change in the rules of selecting judges is an aggressive move of taking control over the Court, alarmingly resembling similar measures in Hungary and in Poland.[11] Similarly, reducing the ability of the Court to take part in political and value-based decisions can be a legitimate goal, but weakening its powers to safeguard the political process is potentially dangerous. An override clause that would allow the Knesset to override those rights that safeguard the channels of change, such as voting rights, freedom of association, political free speech – including free media, and free civil society – and freedom of assembly holds a dangerous potential.[12]

As to the protection of core human rights, the change proposed to weaken the Court by introducing an override clause would allow overriding the protection of equality to minorities and other vulnerable groups. To this one must add the more substantive changes proposed such as allowing religious exemptions to the anti-discrimination laws, as well as enhancing the Jewish element in the Israeli polity. These changes may allow for infringing Arab minority rights, as well as the rights of women and of LGBTQ. 

The proposed changes therefore pose a danger of crossing democratic red lines. We believe that the red lines might also constitute the basis for settling down rules for the Court that would allow it to operate even during extreme political polarization. As many other countries, Israel is experiencing deep political polarization, and the Court is caught in the middle of this polarized political struggle. Indeed, in times of political polarization any center of power – and the Israeli Court has become an important center of power – is fought over for domination and control, and rules of neutrality and chivalry do not apply. 

The two strategies of weakening and control could be adapted to the strategies, which we term: depoliticization and political balance, are in line with our red-lines and could help address polarization.[13] A move to extract the Court from the polarizing spiral would require it to step down from aspirations regarding the settling of value disputes or any other deep involvement in Israeli politics, and to focus its attention at protecting the channels of change and core human rights. This can be called depoliticization of the Court and can take any of many forms. [14]  Secondly, the Court must be protected from political control by any one side of the political map, by regulating a political balance on the Court.[15] Nomination of judges should ideally reflect a bi-partisan consensus that can be imposed, for example, by requiring a supermajority vote in the Israeli parliament, as in Germany.[16] One can also think of a mechanism to deal with a deadlock around nominations, such as default rules, or mediation rules. Proponents of the current changes in the Court argue that a democratic victory for the Right should be reflected in the ability of the majority to put in place its preferred judges. However, and this goes back to our red lines, since the Court should function as a check on majorities, and block them from excluding minorities or manipulating the democratic game, one cannot simply duplicate the same type of elections for the political branches when selecting the judiciary. 

Suggested citation: Moshe Cohen-Eliya & Iddo Porat, Red Lines for Israel’s Constitutional Reforms , Int’l J. Const. L. Blog, Jan. 8, 2023, at: iconnectblog.com/2023/01/red-lines-for-israels-constitutional-reforms/

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[1] Article 30 of the Coalition Agreement between the Likud Party and the Religious Zionism Party, Dec. 28, 2022. A similar provision also appears in the Coalition Agreement between the Likud Party and the Ultraorthodox Parties, Dec. 28, 2022.

[2]      In the United State, conservative judges dominate the Supreme Court and in the last term push for a conservative turn: Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022) (abortion) New York State Rifle & Pistols Assn. v. Bruen, 597 U. S. ____ (2022) (gun control), West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022) (climate regulation). In Canada, conservative PM Harper has nominated three conservative judges, creating a conservative camp on the Canadian Supreme Court. See Justice Writer, Canada’s Supreme Court is off-balance as ‘large and liberal’ consensus on the Charter falls apart, The Globe and Mail (Jan 15, 2022). Finally, in the United Kingdom, the Supreme Court has recently turned back to a non-interventionist approach. See R (on the application of SC, CB and 8 children) v. Secretary of State for Work and Pensions and Others [2021] UKSC 26.

[3]      Noam Gidron et al, American Affective Polarization in Comparative Perspective (CUP, 2020); Thomas Caroters, Democracies Divided: The Global Challenge of Political Polarization (Brookins, 2019).

[4]      Other institutions, such as the media, the academia, religion, and the miliary, are also conceived by the American public as partisan institutions, the first two to the lefts and second two to the right. See, e.g., The Growing Partisan Divide in Views of Higher Education, Pew Research Center (Aug. 19, 2019); Jeffrey Gottfried & Jacob Liedke, Partisan Divides in Media Trust Widen, Driven by a Decline among Republicans, Pew Research Center (Aug. 30, 2021); Michael A. Robinson, Who Follows the Generals? Polarization in Institutional Confidence in the Military, ASPA Preprints (Sept. 17, 2019)

[5]      Menachem Mautner, Law and Culture of Israel (OUP, 2012), Ch. 4: the Decline of Formalism and the Rise of Values, pp. 95-98.

[6]      CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village in Decisions, 49 P.D. 221 (1996).

[7]      On Barak’s philosophy to judicial discretion, see Barak, Aharon, A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 Harv. L. Rev. 16 (2002).

[8]      Some of the reform suggestions are mentioned in article 30 of the Coalition Agreements, supra note 1, and some were mentioned in the Israeli media after the December 2022 elections.

[9]      John H. Ely, Democracy and Distrust: A Theory of Judicial Review (1980) 105, 58-59.

[10]    Kim Lane Scheppele, How Viktor Orbán Wins, 33 J. Democracy 45 (2022).

[11]    Gabor Halmai, The Earlier Retirement Age of the Hungarian Judges, in F. Nicola & B. David eds., EU Law Stories: Contextual and Critical Histories of European Jurisprudence (CUP, Law in Context, 2017) 471.

[12]    Note that the Canadian notwithstanding clause (sec. 33 of the Canadian Charter on Rights and Freedoms, 1982) exempts several fundamental rights from its application.

[13]    Moshe Cohen-Eliya & Iddo Porat, Supreme Courts in the age of Political Polarization (CUP, forthcoming 2023); Moshe Cohen-Eliya & Iddo Porat, Regaining Courts’ Legitimacy in the Age of Polarization: A Comparative Perspective (on file with authors).

[14]     Also see Ryan D. Doerfler & Samuel Moyn, Democratizing the Supreme Court, 109 Cal. L. Rev. 1703, 1771 (2021) (advocating a disempowerment strategy over one that focuses on spiral battles over nomination to the Supreme Court, which they term “personnel” strategy).

[15]    For such a strategy, see e.g., Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. 148 (2019).

[16]    Pauline Weller, For the Court, it could be…“: Electing Constitutional Judges in the US and Germany, VerfBlog, 2018/10/05.