2023 Israeli judicial reform
Based on Wikipedia: 2023 Israeli judicial reform
A Constitutional Crisis Without a Constitution
In January 2024, Israel's Supreme Court did something unprecedented in the country's seventy-five year history: it struck down a law that the government had passed specifically to limit the court's own power. The vote was eight to seven. The losing side included the government that had championed the law, and they were furious.
But here's what made it truly extraordinary: Israel doesn't have a constitution.
Most democracies have a single written document that serves as the supreme law of the land. The United States has its Constitution. France has its Declaration of the Rights of Man. Germany has its Basic Law. Israel has none of these. Instead, it has a patchwork of "Basic Laws" that the parliament can amend with a simple majority vote. There's no special procedure, no supermajority requirement, no ratification by states or the public. The Israeli parliament, called the Knesset, can change its fundamental laws as easily as it passes a budget.
This creates a peculiar situation. If the legislature can rewrite the rules whenever it wants, what stops a government from simply voting itself unlimited power? In most countries, the answer is a constitution that sits above ordinary politics. In Israel, the answer has been the Supreme Court.
How Israel Got Here
When Israel declared independence in 1948, the founders intended to write a constitution. They never did. The task was complicated by deep divisions between secular and religious Jews, between socialists and capitalists, between those who wanted a state defined by Jewish religious law and those who wanted a modern liberal democracy. Rather than fight these battles immediately, the founders kicked the can down the road. They would pass Basic Laws over time, they said, and eventually these would coalesce into a full constitution.
Seventy-five years later, the constitution still hasn't materialized.
What did materialize, starting in the 1990s, was an assertive Supreme Court. Under the leadership of Chief Justice Aharon Barak, the court began claiming broad powers of judicial review. Barak developed what he called a "constitutional revolution." The court would interpret Israel's Basic Laws as having constitutional status, even though the Knesset had never formally designated them as such. The court would strike down ordinary laws that violated these Basic Laws. And the court would review government decisions to ensure they met a standard of "reasonableness."
That last word, reasonableness, would become the flashpoint of the 2023 crisis.
The Reasonableness Doctrine
The reasonableness doctrine gives Israeli courts the power to overturn government decisions that are, in the judges' view, so unreasonable that no reasonable authority would have made them. This doesn't mean the decision was illegal in a technical sense. It means the judges think it was a bad decision, a decision that weighed factors improperly, a decision that any sensible person would reject.
Critics call this judicial tyranny. They argue that unelected judges are substituting their policy preferences for those of elected officials. If the voters chose a government that wants to do something, and that something isn't explicitly illegal, who are the judges to say it's "unreasonable"?
Defenders call it essential. They point out that Israel lacks almost every other check on government power. There's no upper house of parliament to slow things down. There's no president with veto power. There's no federal system with state governments that can push back. There's no bill of rights that can't be amended by a simple majority vote. Without the reasonableness doctrine, they argue, a government could make arbitrary and capricious decisions with no recourse for citizens.
The doctrine has been used to block government appointments that judges deemed inappropriate, to overturn administrative decisions that seemed arbitrary, and occasionally to intervene in the fraught politics of Israel's occupied territories.
The Man Who Would Reform
Benjamin Netanyahu is the longest-serving prime minister in Israeli history. He has led the country, off and on, since 1996. He is also, as of this writing, a criminal defendant.
Netanyahu faces charges of bribery, fraud, and breach of trust in three separate cases. He has denied all wrongdoing and called the prosecutions a witch hunt. His trial began in 2020 and continues to this day. If convicted of bribery, he could face up to ten years in prison.
In November 2022, Netanyahu's political bloc won a decisive victory in Israel's fifth election in less than four years. The country had been stuck in a cycle of inconclusive elections and unstable coalitions since 2019. Netanyahu's victory broke the logjam, but it came at a price. To secure a majority in the Knesset, he had to bring into government parties that had previously been considered too extreme for polite company.
The Religious Zionist Party, led by firebrand politicians who advocate annexing the occupied West Bank and rolling back protections for minorities, won a record number of seats. Ultra-Orthodox parties, which seek to preserve the autonomy of their communities from secular law and military service, demanded and received unprecedented power. These partners had one thing in common: they had long chafed at Supreme Court decisions that limited their ambitions.
Netanyahu appointed Yariv Levin as his Justice Minister. Levin had been planning judicial reform for years. Within weeks of taking office, he unveiled his proposals.
The Reform Package
Levin's plan attacked the court's power from multiple directions simultaneously.
First, judicial selection. The committee that chooses Israeli judges includes Supreme Court justices, lawyers from the bar association, members of parliament, and government ministers. The composition is balanced so that no single faction can dominate. To appoint a Supreme Court justice requires seven of nine committee members to agree, which effectively means judges, lawyers, and politicians must find candidates they can all accept.
Levin proposed changing this. His new committee would have eleven members, with seven of them effectively controlled by the government. The requirement for consensus would disappear. The ruling coalition could appoint whoever it wanted.
Second, judicial review. Levin proposed that any law passed by the Knesset could only be struck down if the full fifteen-justice Supreme Court heard the case and eighty percent of them agreed the law was unconstitutional. Currently, a smaller panel can strike down laws by a simple majority. This change would make it nearly impossible for the court to invalidate legislation.
Third, the override clause. Even if the court somehow managed to strike down a law, the Knesset could override that decision with a simple majority of sixty-one votes. The legislature would have the last word on constitutionality.
Fourth, the reasonableness doctrine. This would be abolished entirely for government decisions. Courts could no longer second-guess whether a minister's decision was reasonable.
Fifth, legal advisers. Every Israeli government ministry has a legal adviser who provides binding opinions on whether proposed actions are legal. Levin proposed making these advisers political appointees whose opinions would be merely advisory. Ministers could ignore legal advice they didn't like.
Taken together, these changes would transform Israel's system of government. The Supreme Court would become largely ceremonial. The government would control who becomes a judge, what the judges can review, and whether their decisions have any effect. Legal constraints on ministerial power would evaporate.
The Conflict of Interest
Here's where it gets complicated.
Netanyahu, as prime minister, would benefit enormously from weakened courts. His corruption trial is before judges who could, in theory, be replaced by more sympathetic appointees. Some of the proposed reforms would directly benefit him: one bill discussed during this period would have prohibited criminal proceedings against sitting prime ministers, which would have frozen his trial entirely.
Israel's Attorney General recognized this problem. She ruled that Netanyahu had a conflict of interest and was barred from directly participating in the judicial reform process. He could not attend cabinet meetings on the topic, could not vote on reform legislation, and could not publicly advocate for specific proposals.
Netanyahu accepted these restrictions, at least formally. But he remained prime minister, and the coalition advancing the reforms was his coalition. The ministers pushing the legislation were his ministers. The distinction between Netanyahu participating and Netanyahu benefiting was, critics argued, meaningless.
The Protests
What happened next surprised almost everyone.
Israelis took to the streets in numbers not seen since the 1982 Lebanon War. Week after week, hundreds of thousands of people gathered in Tel Aviv and other cities. They blocked highways. They gathered outside politicians' homes. They marched with Israeli flags and signs warning of dictatorship.
The protests cut across Israeli society in unusual ways. Military reservists, the backbone of Israel's defense establishment, announced they would refuse to serve if the reforms passed. Fighter pilots, the elite of the elite in Israeli security culture, signed letters saying they would not report for duty. Business leaders warned of economic catastrophe. Tech entrepreneurs said they would move their companies abroad. The Israeli shekel dropped against the dollar.
President Isaac Herzog, whose role is largely ceremonial but who commands moral authority, pleaded with both sides to negotiate. He warned that Israel stood on the brink of constitutional collapse. International allies, including the United States, expressed concern. President Biden took the unusual step of publicly cautioning Netanyahu to seek consensus.
The government pressed forward anyway. Levin and his allies argued that they had a democratic mandate. They had won the election. The voters knew what they stood for. The protests, they said, were sore losers trying to overturn election results through street pressure.
The Pause That Wasn't
In late March 2023, with the country seemingly at a breaking point, Netanyahu announced he was pausing the reform process. Defense Minister Yoav Gallant had publicly criticized the reforms, warning they were tearing the military apart. Netanyahu fired him, which triggered even larger protests. Then Netanyahu reversed the firing and announced the pause.
Negotiations began between the government and opposition, mediated by President Herzog. They dragged on for months. Both sides accused the other of negotiating in bad faith. By June, the talks collapsed.
The government resumed its push, but now with a narrower focus. Rather than pass the entire reform package at once, they would advance it piece by piece. First up: eliminating the reasonableness doctrine.
The Vote and Its Aftermath
On July 24, 2023, the Knesset passed a law abolishing judicial review for reasonableness. The vote was sixty-four to zero. The zero was because the entire opposition had walked out in protest.
Petitions against the law flooded into the Supreme Court immediately. For the first time in Israeli history, the court agreed to hear a case with all fifteen justices sitting. The hearing, in September 2023, was broadcast live and watched by millions of Israelis.
The stakes were extraordinary. If the court struck down the law, it would be asserting a power it had never definitively claimed: the ability to invalidate Basic Laws themselves, not just ordinary legislation. The government's position was that Basic Laws are constitutional in nature and therefore beyond judicial review. The petitioners' position was that even Basic Laws must meet certain fundamental standards, and a law designed solely to remove checks on government power failed those standards.
The justices deliberated for months. In late December, Israeli media reported that a draft decision had leaked. On January 1, 2024, the court announced its ruling.
By a vote of eight to seven, the court struck down the reasonableness law.
By a vote of twelve to three, the court declared that it has the power to strike down Basic Laws.
What the Justices Wrote
Each of the fifteen justices wrote their own opinion, a sprawling collection of legal philosophy and political theory.
Chief Justice Esther Hayut, writing for the majority, emphasized Israel's "fragile, lacking system of checks and balances." Other democracies have multiple institutions that constrain government power. Israel has almost none. The reasonableness doctrine was not a luxury but a necessity in this system. Removing it entirely, with no replacement, would leave citizens with no protection against arbitrary government action.
Justice Yitzhak Amit echoed this theme, writing of the "heavy democratic deficit in Israel." Because Israel lacks the constitutional safeguards common elsewhere, judicial review carries greater weight here than in countries with more robust checks and balances.
Justice Alex Stein agreed that the court had the power to review Basic Laws but dissented on the outcome. The reasonableness law, he wrote, "violates no constitutional norm." Even if the law was unwise, it was not unconstitutional. The Knesset had the right to make this choice.
Justice Noam Sohlberg, also dissenting, rejected the majority's reasoning entirely. The court, he wrote, was building constitutional doctrine on "frail legal constructs." The Knesset is the supreme authority in Israel. If judges don't like what the Knesset does, their remedy is to persuade, not to overrule.
What Happens Now
The ruling did not end the crisis. If anything, it intensified the underlying conflict.
Government ministers denounced the decision but announced they would comply with it. Some coalition members called for ignoring the court entirely, which would have triggered a constitutional collapse. Netanyahu, threading a needle, accepted the ruling while criticizing it harshly.
The broader reform effort continues. In March 2025, the Knesset passed legislation changing the composition of the Judicial Selection Committee, giving the government greater control over judicial appointments. Other elements of the original reform package remain pending.
Meanwhile, the fundamental questions remain unresolved. Does Israel need a formal constitution? Who decides what counts as constitutional in a country without one? How should a democracy balance majority rule against protection of minorities and individual rights? What happens when the people vote for a government that seeks to dismantle the checks on its own power?
These questions have no easy answers. They are, in a sense, the questions that every democracy must answer. Israel's crisis has simply forced them into the open with unusual clarity.
The Broader Context
Israel is not alone in grappling with these tensions. Hungary and Poland have seen ruling parties reshape their judiciaries to remove obstacles to their agendas. Turkey's transformation under Erdoğan followed a similar pattern. Even established democracies like the United States have experienced fierce battles over judicial power and composition.
What makes Israel's case distinctive is the absence of a constitutional framework to resolve these disputes. In America, debates over the Supreme Court take place within rules established by the Constitution. You can argue about how to interpret those rules, but the rules themselves provide a shared reference point. In Israel, the rules themselves are what's being fought over.
This is both Israel's weakness and, perhaps paradoxically, its strength. The absence of a constitution has allowed Israeli democracy to adapt and evolve over decades without the constraints of an eighteenth-century document. But it has also left the system vulnerable to the very crisis now unfolding.
The question Israelis face is not simply what powers their courts should have. It is something more fundamental: what kind of democracy do they want to be? The answer they reach will shape their country for generations to come.