Following Prime Minister Benjamin Netanyahu’s return to power, his new far-right ruling coalition has launched an all-out attack on the Israeli judiciary. Israel’s courts, which act as the only check on executive and parliamentary power and are arguably the last bastion of democratic rights for Israeli citizens, stand to lose their independence and their power to review legislation.
But despite right-wing rhetoric to the contrary, Israel’s Supreme Court has generally failed to intervene in matters relating to the occupation and the settlements, calling into question just how much Israeli liberals can find common cause with Palestinians in opposing Netanyahu’s attempt to consolidate power.
Century International fellow Dahlia Scheindlin warned in 2021 of the coming crisis for the Israeli judiciary; in this Q&A, she discusses the implications of the current crisis with Century International director Thanassis Cambanis.
Thanassis: What is the goal of the right-wing assault on the judiciary? And what is the significance of this latest outrage by Netanyahu, given that it comes after the steady erosion over the past few decades of rights for Palestinians, and lately for Jewish citizens of Israel as well?
Dahlia: The right wing has been trying to curb the powers of the judiciary for at least thirteen years, because the judiciary has sometimes put constraints on the government’s right-wing agenda when courts think that agenda violates constitutional rights.
It’s become an article of faith among the right wing that the judiciary is an enemy of the people, because the judiciary supports liberal values. Because the judiciary has anchored many of the democratic principles in Israel, it’s been in right-wing crosshairs for many years.
The ultimate aim of this new plan, proposed by Netanyahu’s coalition, is to constrain the powers of the Supreme Court and render it unable to provide any meaningful review of legislation and the executive. Essentially, it destroys judicial independence. There’s no nice way to put it.
Thanassis: So it’s not just judicial independence that’s at stake, but the power of courts to review legislation? No checks and balances?
Dahlia: This is exactly why we have all the protests right now. The idea of allowing the Knesset to override judicial review, and making it harder for the court to exercise judicial review at all, has been circulating among the far-right parties in Netanyahu’s coalition, even before the election. Those parties campaigned on this program.
The opposition wants to block even a preliminary vote on the plan in the Knesset’s Constitution, Law, and Justice Committee. Τhere have been physical confrontations, opposition leaders trying to climb up on the table, shouting at the committee leaders.
The plan is still very much in its infancy in the legislative process. But Netanyahu’s coalition is working very hard to rush this through within the next few months, as what we call “lightning legislation”—and they currently have the votes.
A Step Toward Authoritarianism
Thanassis: Why does Netanyahu want to dismantle the judiciary—is it just about power and immunity for himself, or is it a maximalist anti-Palestinian project?
Dahlia: I think it’s both. I think that it’s always been a mistake to look at Netanyahu as some sort of moderate who has just had to satisfy a right-wing base. He is against a Palestinian state, and he has said as much. There is no reason to consider Netanyahu as an Israeli leader who would be willing to reach a two-state solution. I think it’s ideological for him. He would only accept a Palestinian state if it is unrecognizable as a sovereign state.
So I think that he now has found an opportunity in necessity. He had to go into a coalition with the most extreme far-right parties because they’re the only ones willing to work with him; which is also where he needs to be to roll back the three corruption cases for which he is on trial. He shares with his coalition partners the goal of destroying any infrastructure that could ever lead to Palestinian independence. His partners want to push as far and as fast as possible toward building new settlements, removing all constraints on Israel’s presence, governing these settlements as much as possible under Israeli law, and taking over the various authorities within the defense ministry that now govern life for settlers so that the settlements can be permanent possessions of Israel. Netanyahu is happy to go along.
It is about maximalism when it comes to Palestinians. But it is also about saving his skin. And it is also about keeping a right-wing government in power through a self-perpetuating consolidation at the executive level.
Thanassis: So it’s a confluence of his terrible personal interest with the terrible interests of the far right. Netanyahu’s desire to have power and escape prosecution for corruption dovetails perfectly with this other agenda—which he also supports—of stripping Palestinian rights. Is this a step closer to authoritarianism for Netanyahu?
Dahlia: Absolutely. That’s the one-word answer. He will be removing the last structural constraint on the power of the executive. Netanyahu is the most powerful person in the executive. This is true even as his political position is somewhat weaker than it once was because he doesn’t have any other options for coalition partners. If anyone leaves his coalition, he’s in trouble.
Netanyahu’s Maximalism
Thanassis: How important was judicial review for what exists of democracy in Israel? Is it democracy that’s at stake, or something else?
Dahlia: The Supreme Court is the only real check and balance on the power of the government in Israel. There is no true separation between the executive and the legislature. The executive is based on a coalition that holds a parliamentary majority. We don’t, for example, have a president who has a veto. We don’t have any regional system. We don’t even have a formal constitution.
In the absence of those kinds of normal checks and balances, the Supreme Court has been extremely important as our only real check and balance on the power of the government, based on its ability to review government action from its earliest years, and to review legislation from the 1990s, when the Knesset passed laws that enumerated human rights.
Has it made Israel into a democracy? No. There’s no way around the reality that Israel does very undemocratic things, and its structure has many undemocratic aspects. At the very same time, it has many democratic structures, institutions, and practices. The Supreme Court is a major part of that. It is the Supreme Court that has ruled in favor of the principle of equality for all citizens, which does not exist in Israeli law. The Supreme Court established freedom of press in Israel back in the 1950s, which is one of the main reasons that people see Israel as a democratic society.
Thanassi: How does the struggle over judicial review relate to your interest in seeing better governance and an end to the occupation?
Dahlia: The court has never truly constrained occupation policies. On occasion, in particular cases, it has placed some constraints on very particular aspects of the settlements, and certain limits on other occupation-related practices. But it has also ruled in cases that have essentially allowed the state to build about 90 percent of its settlements with the authority of the Supreme Court behind it. So it’s not going to change the occupation. The Supreme Court has generally backed the state when it comes to the occupation, with a few important exceptions.
This Netanyahu government hopes to do four different things. One, the government wants to advance annexation. Two, the government wants to advance theocratic rule in Israel. Three, the government wants to advance greater inequality, some might even call it supremacy. Fourth, it wants to legitimize corruption.
By any normal measure of democracy, you don’t deport citizens.
Those are the kinds of laws that they are already starting to advance, even as we speak. They’ve just passed a law that would allow the deportation of Arabs who are involved in terrorism. By any normal measure of democracy, you don’t deport citizens. And some of the first laws they’re trying to pass would allow the minister who had been fired because the Supreme Court ruled that he could not serve after having been recently convicted of corruption, to come back as a minister. If the court can’t exercise judicial review, or if the Knesset can override it, there would be no way to stop this kind of legislation.
Not a Check on Occupation
Thanassis: So what you’re saying is that, on the one hand, the independent judiciary is maybe the most democratic institution in the Israeli government today, and maybe the best bastion of rights. And, on the other hand, it’s not really been a useful tool in actually fighting or resolving the occupation.
Dahlia: That’s right. The court has often intervened in areas of great political and social sensitivity when it comes to internal affairs like religion and state, for example, certainly on gender equality and LGBT progress. But when it comes to the occupation, and specifically settlements, the court has tended much more toward the view that it shouldn’t intervene, or else sides with the state.
But on occasion, the court has ruled against the settlements. So, for example, the court rejected all of the citizen petitions against the state for removing settlements in Gaza. And one of the more recent examples was that in 2020, the court struck down a 2017 law that would have essentially legitimized under Israeli law all of the settlements that are built on private Palestinian property in the West Bank. (They would never have been legitimate under international law.) The court simply struck it down. That’s the kind of thing that’s happened in recent years, even if it’s rare. This is why the right wing and the pro-settler community think that the court is an enemy, because this government wants to move full speed ahead toward de facto annexation in whatever form it can.
Thanassis: The public outcry has been massive by Israeli standards. Does it represent a surge in anti-occupation or anti-authoritarian public opinion? Can it change the outcome?
Dahlia: We’ve never had a protest this big over saving the judiciary, the only structure that could one day make Israel properly democratic. And I think that it’s very significant that so many people have gone out: week after week, we’re having regular demonstrations of over 100,000 people.
The protests are impressive, but they don’t have any real power. The government has a legitimately elected, 64-seat majority out of 120 seats in the Knesset. Netanyahu’s coalition can move ahead. There’s no structural way to stop their plan.
Israelis worry that their freedoms and rights will be rolled back. Are they connecting it with the occupation? Do they realize that while they’re worried about insufficient human or civil rights, there’s an entire population of millions of people, under Israel’s control, who never have enjoyed those kinds of rights? Most protesters don’t think about this connection.
But the judiciary crisis has galvanized the community that is already very active in civil society, in protesting and opposing occupation over the years. At first, anti-occupation groups demonstrated separately, but now all the protest groups have merged together. But I think we’re very far from seeing an organic connection between opposition to Netanyahu’s authoritarianism and opposition to the occupation.
Header image: Demonstrators in front of the Israeli Knesset protest the right-wing government’s moves against the judiciary in Jerusalem on February 13, 2023. Source: Amir Levy/Getty Images.
Q&A: Netanyahu’s Total War on Israel’s Judiciary
Following Prime Minister Benjamin Netanyahu’s return to power, his new far-right ruling coalition has launched an all-out attack on the Israeli judiciary. Israel’s courts, which act as the only check on executive and parliamentary power and are arguably the last bastion of democratic rights for Israeli citizens, stand to lose their independence and their power to review legislation.
But despite right-wing rhetoric to the contrary, Israel’s Supreme Court has generally failed to intervene in matters relating to the occupation and the settlements, calling into question just how much Israeli liberals can find common cause with Palestinians in opposing Netanyahu’s attempt to consolidate power.
Century International fellow Dahlia Scheindlin warned in 2021 of the coming crisis for the Israeli judiciary; in this Q&A, she discusses the implications of the current crisis with Century International director Thanassis Cambanis.
Thanassis: What is the goal of the right-wing assault on the judiciary? And what is the significance of this latest outrage by Netanyahu, given that it comes after the steady erosion over the past few decades of rights for Palestinians, and lately for Jewish citizens of Israel as well?
Dahlia: The right wing has been trying to curb the powers of the judiciary for at least thirteen years, because the judiciary has sometimes put constraints on the government’s right-wing agenda when courts think that agenda violates constitutional rights.
It’s become an article of faith among the right wing that the judiciary is an enemy of the people, because the judiciary supports liberal values. Because the judiciary has anchored many of the democratic principles in Israel, it’s been in right-wing crosshairs for many years.
The ultimate aim of this new plan, proposed by Netanyahu’s coalition, is to constrain the powers of the Supreme Court and render it unable to provide any meaningful review of legislation and the executive. Essentially, it destroys judicial independence. There’s no nice way to put it.
Thanassis: So it’s not just judicial independence that’s at stake, but the power of courts to review legislation? No checks and balances?
Dahlia: This is exactly why we have all the protests right now. The idea of allowing the Knesset to override judicial review, and making it harder for the court to exercise judicial review at all, has been circulating among the far-right parties in Netanyahu’s coalition, even before the election. Those parties campaigned on this program.
The opposition wants to block even a preliminary vote on the plan in the Knesset’s Constitution, Law, and Justice Committee. Τhere have been physical confrontations, opposition leaders trying to climb up on the table, shouting at the committee leaders.
The plan is still very much in its infancy in the legislative process. But Netanyahu’s coalition is working very hard to rush this through within the next few months, as what we call “lightning legislation”—and they currently have the votes.
A Step Toward Authoritarianism
Thanassis: Why does Netanyahu want to dismantle the judiciary—is it just about power and immunity for himself, or is it a maximalist anti-Palestinian project?
Dahlia: I think it’s both. I think that it’s always been a mistake to look at Netanyahu as some sort of moderate who has just had to satisfy a right-wing base. He is against a Palestinian state, and he has said as much. There is no reason to consider Netanyahu as an Israeli leader who would be willing to reach a two-state solution. I think it’s ideological for him. He would only accept a Palestinian state if it is unrecognizable as a sovereign state.
So I think that he now has found an opportunity in necessity. He had to go into a coalition with the most extreme far-right parties because they’re the only ones willing to work with him; which is also where he needs to be to roll back the three corruption cases for which he is on trial. He shares with his coalition partners the goal of destroying any infrastructure that could ever lead to Palestinian independence. His partners want to push as far and as fast as possible toward building new settlements, removing all constraints on Israel’s presence, governing these settlements as much as possible under Israeli law, and taking over the various authorities within the defense ministry that now govern life for settlers so that the settlements can be permanent possessions of Israel. Netanyahu is happy to go along.
It is about maximalism when it comes to Palestinians. But it is also about saving his skin. And it is also about keeping a right-wing government in power through a self-perpetuating consolidation at the executive level.
Thanassis: So it’s a confluence of his terrible personal interest with the terrible interests of the far right. Netanyahu’s desire to have power and escape prosecution for corruption dovetails perfectly with this other agenda—which he also supports—of stripping Palestinian rights. Is this a step closer to authoritarianism for Netanyahu?
Dahlia: Absolutely. That’s the one-word answer. He will be removing the last structural constraint on the power of the executive. Netanyahu is the most powerful person in the executive. This is true even as his political position is somewhat weaker than it once was because he doesn’t have any other options for coalition partners. If anyone leaves his coalition, he’s in trouble.
Learn More About Century International
Netanyahu’s Maximalism
Thanassis: How important was judicial review for what exists of democracy in Israel? Is it democracy that’s at stake, or something else?
Dahlia: The Supreme Court is the only real check and balance on the power of the government in Israel. There is no true separation between the executive and the legislature. The executive is based on a coalition that holds a parliamentary majority. We don’t, for example, have a president who has a veto. We don’t have any regional system. We don’t even have a formal constitution.
In the absence of those kinds of normal checks and balances, the Supreme Court has been extremely important as our only real check and balance on the power of the government, based on its ability to review government action from its earliest years, and to review legislation from the 1990s, when the Knesset passed laws that enumerated human rights.
Has it made Israel into a democracy? No. There’s no way around the reality that Israel does very undemocratic things, and its structure has many undemocratic aspects. At the very same time, it has many democratic structures, institutions, and practices. The Supreme Court is a major part of that. It is the Supreme Court that has ruled in favor of the principle of equality for all citizens, which does not exist in Israeli law. The Supreme Court established freedom of press in Israel back in the 1950s, which is one of the main reasons that people see Israel as a democratic society.
Thanassi: How does the struggle over judicial review relate to your interest in seeing better governance and an end to the occupation?
Dahlia: The court has never truly constrained occupation policies. On occasion, in particular cases, it has placed some constraints on very particular aspects of the settlements, and certain limits on other occupation-related practices. But it has also ruled in cases that have essentially allowed the state to build about 90 percent of its settlements with the authority of the Supreme Court behind it. So it’s not going to change the occupation. The Supreme Court has generally backed the state when it comes to the occupation, with a few important exceptions.
This Netanyahu government hopes to do four different things. One, the government wants to advance annexation. Two, the government wants to advance theocratic rule in Israel. Three, the government wants to advance greater inequality, some might even call it supremacy. Fourth, it wants to legitimize corruption.
Those are the kinds of laws that they are already starting to advance, even as we speak. They’ve just passed a law that would allow the deportation of Arabs who are involved in terrorism. By any normal measure of democracy, you don’t deport citizens. And some of the first laws they’re trying to pass would allow the minister who had been fired because the Supreme Court ruled that he could not serve after having been recently convicted of corruption, to come back as a minister. If the court can’t exercise judicial review, or if the Knesset can override it, there would be no way to stop this kind of legislation.
Not a Check on Occupation
Thanassis: So what you’re saying is that, on the one hand, the independent judiciary is maybe the most democratic institution in the Israeli government today, and maybe the best bastion of rights. And, on the other hand, it’s not really been a useful tool in actually fighting or resolving the occupation.
Dahlia: That’s right. The court has often intervened in areas of great political and social sensitivity when it comes to internal affairs like religion and state, for example, certainly on gender equality and LGBT progress. But when it comes to the occupation, and specifically settlements, the court has tended much more toward the view that it shouldn’t intervene, or else sides with the state.
But on occasion, the court has ruled against the settlements. So, for example, the court rejected all of the citizen petitions against the state for removing settlements in Gaza. And one of the more recent examples was that in 2020, the court struck down a 2017 law that would have essentially legitimized under Israeli law all of the settlements that are built on private Palestinian property in the West Bank. (They would never have been legitimate under international law.) The court simply struck it down. That’s the kind of thing that’s happened in recent years, even if it’s rare. This is why the right wing and the pro-settler community think that the court is an enemy, because this government wants to move full speed ahead toward de facto annexation in whatever form it can.
Thanassis: The public outcry has been massive by Israeli standards. Does it represent a surge in anti-occupation or anti-authoritarian public opinion? Can it change the outcome?
Dahlia: We’ve never had a protest this big over saving the judiciary, the only structure that could one day make Israel properly democratic. And I think that it’s very significant that so many people have gone out: week after week, we’re having regular demonstrations of over 100,000 people.
The protests are impressive, but they don’t have any real power. The government has a legitimately elected, 64-seat majority out of 120 seats in the Knesset. Netanyahu’s coalition can move ahead. There’s no structural way to stop their plan.
Israelis worry that their freedoms and rights will be rolled back. Are they connecting it with the occupation? Do they realize that while they’re worried about insufficient human or civil rights, there’s an entire population of millions of people, under Israel’s control, who never have enjoyed those kinds of rights? Most protesters don’t think about this connection.
But the judiciary crisis has galvanized the community that is already very active in civil society, in protesting and opposing occupation over the years. At first, anti-occupation groups demonstrated separately, but now all the protest groups have merged together. But I think we’re very far from seeing an organic connection between opposition to Netanyahu’s authoritarianism and opposition to the occupation.
Header image: Demonstrators in front of the Israeli Knesset protest the right-wing government’s moves against the judiciary in Jerusalem on February 13, 2023. Source: Amir Levy/Getty Images.