Israel’s judicial reform debate, which tore the country apart throughout 2023, had seemed a distant memory after October 7. Yet Justice Minister Yariv Levin and Foreign Minister Gideon Sa’ar presented a proposal last Thursday that focuses on judicial selection and Basic Laws.
To truly understand what’s happening, one must first understand how the Israeli system works (or fails to), how it compares with (and differs from) the American system, and what it all means for Israel’s future as a country.
In Israel, a Basic Law is the highest form of legislation, essentially the equivalent of an American constitutional amendment. However, there is a major difference: A Basic Law can pass with only a simple majority of the Knesset (parliament), while an American constitutional amendment requires supermajority approval of 75% of the 50 state legislatures.
In other words, the basic framework of American society is difficult to change, and Congress can pass only laws that do not conflict with the Constitution. However, the Knesset can change the very framework of Israeli society relatively easily, via a simple majority vote.
In theory, any coalition that runs the government can entirely overhaul the very fabric of Israeli society, including changes to fundamental individual rights. In reality, this is not the case, due to the Supreme Court’s power of judicial review: the authority to strike down laws that violate the nature of Israeli society.
In the United States, a violating law would be called “unconstitutional,” yet Israel does not have a constitution, making the Israeli system subtly but critically different.
The court has, over the years, accumulated a somewhat unstructured power to strike down laws passed by the Knesset. The current governing coalition objects to the Supreme Court’s “reasonableness” power: the authority to strike down laws on the basis that the court deems them “extremely unreasonable.”
The coalition sees this as “excessive” power, but the Knesset also has an excessive power: its ability to overrule Israel’s Basic Laws with a simple majority vote. These two excessive powers more or less balanced each other over the years, albeit somewhat chaotically.
Real-life examples
TO PROPERLY understand, it helps to examine real-life examples. Some bills introduced to Knesset in 2022-2023 included: a law to segregate women to the back of public buses, a law to separate men and women at public events, and a law to criminalize non-Orthodox prayer at the Western Wall, punishable by six months imprisonment for a first offense. A bill designed to segregate women in public higher education is currently on its way to becoming law.
All of these bills violate Israel’s Basic Laws, specifically the Basic Law on Human Dignity and Liberty, providing a clear basis for the Supreme Court to strike them down. Anticipating this challenge, the Knesset had planned to turn these bills into Basic Laws themselves, making them the equivalent of constitutional amendments, and thus overruling any other Basic Laws that they may violate.
In such a scenario, the only tool remaining to the Supreme Court would be the “reasonableness power”: to strike down these new Basic Laws on the basis that they are “extremely unreasonable.”
In response to this stalemate, in 2023 the coalition passed a law stripping the Supreme Court of its power to strike down laws based on “extreme unreasonableness.” In January of 2024, however, the Supreme Court struck down that law, thus preserving its own power.
This is why the new judicial reform proposal is focused on judicial selection.
The judicial selection process is complex, involving input by judges, the Israel Bar Association, and Knesset. The new proposal would increase the Knesset’s role and reduce the influence of judges.
The Knesset’s direction appears to be: to appoint judges who are sympathetic to the judicial reform plan, then pass a Basic Law ending the reasonableness power (which would presumably be approved by the new judges), and then finally, to pass the various dramatic laws referenced above, as well as others.
As long as new laws are defined as Basic Laws (which can be done with a simple majority in Knesset), it would become impossible for the court to strike them down. In fact, the Knesset could theoretically define every new law as a Basic Law and thus effectively end the entire institution of judicial review in Israel.
PART OF the reason a new judicial reform bill has not yet been introduced is because the ultra-Orthodox political parties are insisting that the Knesset first pass a new law enshrining the exemption of ultra-Orthodox communities from military service. This is another topic that requires some context.
The ultra-Orthodox military exemption has long been a point of contention in Israel, with proponents insisting that full-time yeshiva preserves Israel’s Jewish character, while opponents object that it places an unfair burden of service on non-Orthodox communities. (Some proponents even insist that the IDF does not actually protect Israel at all, but rather yeshiva students do – by attracting divine protection that Israel would not otherwise receive.)
After October 7, the enlistment debate intensified due to its real-world impact. Specifically, the exemptions have begun to create a real security risk as the IDF simply does not have enough soldiers.
Also, reserve duty used to be typically a few weeks per year at most, but now many reservists are serving 200 to 300 days and counting, creating a burden on their families, communities, and careers.
Israel’s active duty forces number only about 165,000, and reserves only about 465,000, while ultra-Orthodox eligible to serve number about 60,000: a significant potential addition to the total IDF forces.
This issue became even more prominent in June 2024, when the Supreme Court ruled that religious exemptions from military service violate Israel’s Basic Laws. The ruling has not yet been fully enforced, but initial recruitment has begun, and the ultra-Orthodox political parties are concerned that full enforcement may be forthcoming.
In March 2023, President Isaac Herzog presented a compromise proposal for judicial reform: to limit certain Supreme Court powers, and also limit the Knesset’s ability to pass Basic Laws without a supermajority, thus maintaining a balance of powers. However, the major players in Knesset rejected the proposal at the time, and it has more or less disappeared from public conversation.
Israel needs a reform that will strengthen our society while also maintaining balance of powers: by modifying and codifying not only the Supreme Court’s powers but also certain aspects of the Knesset’s powers.
This direction would bring about a more organized system of checks and balances that would serve Israel for generations to come. However, that particular direction isn’t part of the public conversation at this time.
The writer is an expert in international law, an adjunct professor at Reichman and Bar-Ilan universities, and the CEO of RealityCheck, a nonprofit NGO dedicated to clarifying global conversations. He lives in Tel Aviv, and can be found on Instagram at @realitycheckresearch or at RealityCheckResearch.org.