Why Israel’s Establishment Is Revolting

Just a few weeks ago, nobody in Israel—neither the religious-right coalition that came to power after last November’s elections nor the opposition of street protesters and business elites that has risen against it—could ever have imagined that the country would be gripped by a divisive struggle over its future.

But it is, and the battle lines have not been drawn around the traditional controversies over Palestinian policy—despite one of the most violent flare-ups in recent years—the settlements, or religious influence over state institutions. Rather, the struggle is over the niche technical issue of judicial reform—a topic that for years hovered on the margins of policy debates and would ordinarily never have aroused such powerful emotions.

A few weeks ago, not many Israelis could have told you how judges are appointed, or what the powers of the Supreme Court are when it functions as the High Court of Justice (in Hebrew, Bagatz) and hears petitions against the government—including questions of legislation constitutionality. But today such issues are the subject of countless street protests, open letters, public opinion polls, media analyses, and dinner table conversations. Bumper stickers proclaim “I 🤍 the Bagatz.” The financial markets have even begun reacting—the shekel has lost about 8 percent of its value against the U.S. dollar in the last month, as yields rose sharply on the Israeli government’s key 10-year bond.

Justice Minister Yariv Levin ignited the controversy on Jan. 4, just six days after Prime Minister Benjamin Netanyahu’s government had been sworn in, when he unveiled the first phase of his planned judicial overhaul. The measures would give the ruling coalition power to appoint judges, and also effectively prevent the High Court from voiding legislation by setting an impossibly high bar for justices to do so.

Even if the bar were reached, Israel’s legislature, the Knesset, would be able to override the court by a simple 61-vote majority. Other changes are planned in the future, including turning governmental legal advisors into political appointees and making their legal opinions nothing more than recommendations that ministers can honor or ignore as they choose.

The far right and the settlers have long resented the courts for blocking their efforts to build new settlements and seize Palestinian land, and for approving then-Prime Minister Ariel Sharon’s 2005 withdrawal from the Gaza Strip. The ultra-Orthodox, the coalition’s third bloc, resent the court for their own reasons—in particular for deeming their exemption from military conscription unconstitutional.

Netanyahu has his own personal beef with the legal system for indicting him on a host of corruption-related charges. Many suspect that he will use the judicial “reforms” to escape punishment.

Of course, the overhaul’s supporters say they want to do nothing more than rein in what they call judicial overreach and restore the balance of power between the three branches of government. Its opponents say the legislation will neuter the courts and subject them to the dictates of elected politicians, effectively doing away with checks and balances and the independence of the judicial branch of government.

The coalition’s leaders and their allies have sought to portray the opposition as a gaggle of leftists, or even anarchists, who can’t win at the polls and so are trying to prevent the side that did win from governing the country as the majority of Israelis see fit. That claim is wrong on two counts.

The contemporary left could never have rallied so many people to any cause.

The first is that the coalition’s Knesset majority doesn’t accurately reflect how the electorate is divided. Under the Israeli system parties need to win a minimum number of votes to enter the Knesset. Thus, if the votes are all counted, including the ones “wasted” on parties that failed to reach the threshold, the government won 48.4 percent of the vote (or 49.6 percent, if you count a small rightist party that failed to reach the threshold) versus 48.9 percent for the center, left, and Arab parties (the remainder was divided among a gaggle of small parties).

In other words, the country is about evenly divided; the government doesn’t represent a majority. In any case, opinion polls conducted by the Israel Democracy Institute and others have repeatedly shown that a majority of Israelis do not support the proposed overhaul.

The second reason the coalition’s claim is wrong is that the opposition to judicial reforms isn’t exclusively leftist. In fact, the Israeli left is all but dead (in the last election, one of the two parties that represent it failed to reach the threshold and the other eked out just enough votes to get the minimum four Knesset seats). The contemporary left could never have rallied so many people to any cause.

The street protests, which routinely draw tens of thousands of people, amply illustrate just how centrist the opposition is: While occasional placards pop up against the occupation (the left’s main concern), they are drowned out by a sea of Israeli flags. The protesters make sure to sing the national anthem and are overwhelmingly orderly and respectful. Far from being rabble rousers, the featured speakers include tech industry executives and former members of the security establishment.

And that shows what the current opposition really is: a revolt by the establishment against a populist right, a situation not very different from what developed in the United States during the Trump years.

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The Israeli establishment tilts to the left, but it is overwhelmingly centrist. Side by side with grassroots street protests, its opposition has taken the form of open letters and public statements from leaders of the key high-tech industry, bankers, lawyers, former generals, and former attorneys general and ministers. Indeed, it’s hard to find anyone among the country’s leaders outside the coalition who supports the government’s plans.

The opposition argues that judicial reform constitutes a threat to democracy, which it almost certainly does. But the same could be said about the West Bank occupation (which involves subjecting millions of Palestinians to military rule) or the growing political power of the ultra-Orthodox (which threatens Israeli society’s liberal values). Yet neither issue has ever animated the Israeli establishment as much as the judicial overhaul has.

What makes the proposed overhaul different is that it threatens to strike at the very heart of what establishment Israel thinks the country is and should be. The settlers and the Palestinians have long been regarded as a distant problem whose violence rarely reaches into Tel Aviv and its suburbs, the epicenter of establishment Israel. The problem of the ultra-Orthodox has likewise been compartmentalized—adherents could live their own lives in their own communities, even avoid army service, so long as they didn’t impose their religious strictures on the rest of the country.

The judicial overhaul threatens to break down those barriers. Establishment Israel assumes that the right will not only remain in power for the foreseeable future but will exercise little or no restraint in using it.

The images of settlers rampaging through a Palestinian town on Feb. 26 seeking revenge for a terrorist attack, which elicited only the mildest of condemnation from the government, can only confirm the establishment’s worst fears about the kind of state-sanctioned lawlessness that lies ahead.

Politicization of the judicial system will ensure the right remains in power forever.

Without the courts to defend basic rights and the values of liberal Israel, religious-right governments will be free to tighten Israel’s hold on the West Bank, award more power and privileges to the ultra-Orthodox minority, and discriminate against the Arab minority and LGBTQ people.

Despite their talk of judicial reform enhancing democracy, those on the right seem to be making the same assumption: that politicization of the judicial system will ensure the right remains in power forever. Otherwise, the coalition wouldn’t dare risk handing over control of the judicial system to its enemies in a future election. In short, for all its talk about ensuring a proper balance of power, the right envisions Israel as the sort of illiberal democracy that exists in Hungary and Poland today, where those in power engineer institutions in order to ensure they stay there.

The Netanyahu government has the Knesset votes to pass its judicial reforms (on Feb. 20, while tens of thousands protested in front of the Knesset building, lawmakers approved the legislation in the first of three votes needed before it becomes law). But the reforms’ passage could end up being a pyrrhic victory.

As much as coalition leaders have insulted and verbally abused the judicial overhaul’s opponents, Netanyahu is well aware that the opposition represents the people who make Israel the high-tech and military powerhouse that it is. He can’t afford to alienate them—and it has become clear in just a few short weeks how the judicial overhaul has done just that. Reports of capital flight have already emerged, and the shekel has begun losing value.

The changes that will come from neutering and politicizing the judicial system will take time, but when they do, they will almost certainly deter the foreign investment that funds the tech industry, the engine of the Israeli economy.

Further, many of Israel’s most talented people—the ones who supply the recruits for the army’s vaunted high-tech and elite combat units and go on to become high-tech entrepreneurs and military leaders—may choose to leave the country, much as has happened in Russia since Vladimir Putin invaded Ukraine. Even if they opt to stay, they will have less incentive to serve in the army and won’t find the business environment as friendly as it once was for starting new companies.

Unfortunately, Netanyahu’s partners on the right don’t seem to share these concerns. They insist that the judicial overhaul will benefit the economy, but they only began making that claim after it became obviously untrue. Intentionally or not, the judicial revolution will bring about a state and society antithetical to the liberal values that serve as the foundation of Israel’s high-tech economy and military. As another slogan popular with the opposition warns, “No democracy, no high-tech.”