Benjamin Netanyahu no longer governs Israel, but the country’s nationalist and illiberal trajectories run far deeper than one individual. Israel’s increasingly entrenched hold over Palestinian territories is one obvious manifestation of the country’s right-wing agenda. But in recent years, the most important emerging aim of the nationalist right-wing leadership has been to undermine a core pillar of democracy—the judiciary.
Over the past decade, various actors have converged in an aggressive, multifaceted campaign to gut the legitimacy of Israel’s judicial branch and constrain its authority. The efforts include legislation, procedural changes, judicial appointments, and election campaigns targeting the judiciary; right-wing media attacks and anti-judiciary civil society activities; and public rhetoric bordering on incitement—including exhortations of government figures to ignore legal rulings. Throughout, the campaign has advanced a notion of “governability” that promotes unrestrained executive power.
In practice, hardly any of the most severe policies or legislation to constrain judicial competencies have been implemented. Israel’s new leadership could still halt such efforts before the damage is complete.
However, the attack on the public legitimacy of the judiciary is no less powerful.1 Right-wing leaders and public figures have methodically constructed an elaborate narrative of the judiciary as a cabal of elites who have captured the country. In this view, justices impose a liberal-universalist and left-wing political agenda that violates the true will of the people, through a brutal power grab. This narrative extends to the state prosecutor, the attorney general, and even the police. As a common, parsimonious anti-judiciary refrain puts it: “They couldn’t win at the ballot box, so they are grabbing control through the courts.”
The strongest voices in the anti-judiciary campaign are public officials, including party leaders, coalition partners, and Netanyahu, in the final years of his term as prime minister. Nongovernment actors provide crucial support. These actors range from right-wing media outlets to a network of far-right and ultranationalist civil society groups dedicated to weakening the judiciary.
Each actor brings specific interests, ranging from a desire to advance a religious, nationalist, and annexationist agenda—or, in Netanyahu’s case, a need to undermine the charges against him.2 These interests are deeply intertwined, and over the last few years, they converged. Ultimately, the campaign seeks to condition society to view human rights, minorities and equality as foreign and dispensable. Traducing legal institutions is a vehicle to undermine the rights of ethnic, religious, political, and sexual minorities—including the rights of Palestinians who lack even the protection of citizenship. Israel’s version of judicial assault therefore has its own unique motivations, but shares some classic illiberal and populist tactics of other countries such as Hungary, Poland, and for a time, the United States.
The modern anti-judiciary campaign draws on long-term tensions over secular law, and historic ambiguity around liberal, universal values in Israel.
The modern anti-judiciary campaign benefits from a long-term history of tension between secular law and theocratic elements of society, alongside historic ambiguity about liberal, universal values in Israel versus a superior status for Jews. This report begins by reviewing the history of judiciary–state tensions in brief, from the start of Israel’s statehood through incipient opposition to its Supreme Court by the settler movement in the late 1970s. The next section examines how the Supreme Court became more active in advancing certain liberal values and human rights in the 1990s, even in a limited way, and the early backlash against judicial activism. The main focus of the report is the escalating, populist, and multidirectional onslaught from approximately 2009 to the present.
While Israel’s judicial branch is a matter of domestic affairs, the United States and outside actors should consider this issue an indicator of Israel’s medium- and long-term trajectory. Laying the groundwork for an illiberal society indicates a clear intention to build one, in ways that reflect specific Israeli goals. Yet the reverse might still be true: if the new government recommits to judicial independence and deepens the democratic values a judiciary exists to protect, it might more directly confront the contradictions inherent in its policies of occupation—and choose the side of democracy. The United States should monitor, support, and encourage the rehabilitation and independence of Israel’s judicial branch.
An Uneasy Relationship: 1948–67
Israel’s Supreme Court and judicial system at large were largely developed following the British legal traditions established during the mandate years prior to independence. The Supreme Court comprises fifteen justices, who preside as panels of three as the default, or as expanded panels for specific cases. The Supreme Court is the country’s highest court of appeals, but also functions as the High Court of Justice.3 In this latter role, the Court hears claims against the state itself, including against legislation in process or already passed, or executive decisions and policies. Such petitions can be submitted directly by individuals.4
Among the crucial aspects of the Court’s founding in 1948 is that it had no formal basis in law at the time. Thus, the Court lacked a formal definition of its own competencies. The clash between the Court as a check on government action arrived swiftly, within a few years. But there are far deeper tensions over the function of the law itself as a boundary or limitation on political aims, or else as a facilitator—a “utilitarian” view. One historian observes that these tensions even predate statehood.5
Thus, Israel has never had smooth or clearly defined relations between the judiciary and other branches of government. After Israel’s founding in 1948, Israel’s religious Zionist leaders challenged the authority of civil and secular law. For certain groups in society, there has never even been full agreement over the role and authority of civil law versus religious law. In turn, the institutions of justice have been flashpoints of tension from the earliest years of statehood—and none more than the Supreme Court.
There is a direct thematic line from the 1948 religious-secular divide over Israeli law to the modern campaign against the Court.
In most countries, lawmaking is anchored by constitutional procedures, but also by values. But due to a number of competing political interests in Israel’s early years, including religious and secular relations as a major source of tension, Israel failed to adopt a formal, unified written constitution.6 Although the country’s first elections in 1949 were held for a constituent assembly, that body failed to produce a constitution—an early example of Israel’s ambiguity over key aspects of political identity and governance.
Various draft constitutions had been developed ahead of 1948. One of these was grounded in Jewish religious law (“halakha”), and its author was the chief rabbi of Israel, Isaac Herzog.7 The Jewish religious parties were heavily opposed to a constitution that would be formulated and interpreted by secular arbiters, while anchoring liberal, universalist principles. Rabbinic authorities believed the law must be derived from Jewish religious sources; a secular constitution would destroy the Jewish identity of the state. Alongside the religious opposition, David Ben Gurion himself, the new country’s leader, was skeptical of a constitution that would limit the power of his governing party. (His party, the forerunner of Israel’s Labor Party, dominated Israeli politics for nearly thirty years.) Notably, small parties of the right wing—fairly weak at the time—supported a constitution to check government excesses.8 Instead, the assembly gave up its task, quickly transforming itself into the first regular legislature (the Knesset), and passed a series of Basic Laws to define the core functions of government. Israel’s historic inability to draft a constitution is an apt symbol for Israeli life and politics, which later grew into a pattern.
Rabbinic authorities believed the law must be derived from Jewish religious sources. A secular constitution would destroy the Jewish identity of the state.
Basic Laws represent only a placeholder for a constitution; they are partial and vulnerable—some can be overturned with a simple majority.9 The first nine Basic Laws addressed most of the functions of government, but did not establish core values for Israeli society, such as equality of citizens or human rights protections. The Basic Law defining the judiciary was passed only decades later, in 1984.10 Human rights legislation would be implemented only in the 1990s, and to this day there is no law in Israel guaranteeing general equality of all citizens as a fundamental value.11
Despite the lack of a formal written constitutional framework, the Supreme Court was established in Jerusalem in 1948. The chief rabbis of Israel boycotted the opening; the historian Alexander Kaye wrote that Herzog considered it a “catastrophic betrayal of the Jewish tradition.” Herzog suggested a fast, thereby likening it to the ritual fast days in Judaism that commemorate the historic destruction of the Jews.12
The Supreme Court and the Settlers: 1967–92
In Israel’s first decades, the Supreme Court barely challenged legislation, in part due to the sensitive relations with the other branches of government, and the undefined basis for intervention. The Court did occasionally challenge decisions of the executive branch.13 However, the 1967 Arab–Israeli War represented a turning point for Israel’s legal institutions, just as it changed Israel’s geopolitical position in the region. First, Israel set about establishing a military government and, with it, a system of military justice. The settlement project that began very quickly after the war then prompted its own set of legal challenges; including battles over the confiscation of privately owned Palestinian lands.
One Court ruling in particular became a turning point in the triangular relations between the settlers, the Israeli government, and the Supreme Court.
In 1979, the High Court of Justice found in Dweikat et al. v. Government of Israel et al. that a nascent West Bank settlement called Elon Moreh, built on land belonging to Palestinian villagers, had no security justification, and ordered the settlement to be moved. The landmark ruling was one of the first significant setbacks for the settlement project coming from any branch of the Israeli government until that time.14 Settler leaders began to advocate dismissing or circumventing the Court as needed, when territorial expansion was at stake. Four days after the ruling, settlement patron Ariel Sharon—at the time, the agriculture minister—stated tersely that the “Supreme Court should not be dealing with settlements,” while also proposing that the Court be “relieved of the burden of having to make political decisions.”15 In addition to sparking a political crisis, one party proposed emergency laws to bypass the Court—an early example of political leaders undermining the authority of the judicial branch to advance a specific policy agenda.16
“If democracy begins to stand in the way of building a Jewish state, then give up on democracy,” one supporter of settlements reportedly said.
Settlers considered defying the Court order entirely.17 “If democracy begins to stand in the way of building a Jewish state, then give up on democracy,” one supporter of settlements reportedly said.18 Pro-settlement jurists gathered for the purpose of finding legal strategies to advance the settlement project in the wake of the ruling; among their recommendations was to limit the authority of the Court to rule on Palestinian petitions regarding West Bank lands—in other words, to limit the “justiciability” of such petitions. (This recommendation was a forerunner to the notion of limiting justiciability that would appear decades later, discussed below.)19
The Elon Moreh decision helped recruit a new and ultimately powerful opponent to the Supreme Court: the religious Zionist pro-settlement community. This opposition added an additional layer to the resistance of the ultra-Orthodox communities that had already existed for decades. The religious pro-settlement community’s opposition focused mainly on Court rulings regarding specific policy, rather than a generalized opposition to the role of the Court in general.
Yet the idea of a “politicized” Court began to emerge, to no small controversy. Settlers and their supporters in government clearly felt that the Court was already overstepping the legitimate role of the judiciary. Looking back, a leading human rights lawyer who represented the Palestinian villagers in the Elon Moreh case would acknowledge that forcing the Court into occupation-related rulings ultimately made it into “a toxic player” in Israel’s charged political environment around settlement issues.20 The Supreme Court of 1979 was considered conservative (rather than activist), but the ruling turned the Court into an object of outrage for settlers and Israeli territorial maximalists. Ironically, the Elon Moreh decision and certain later rulings that appeared to uphold Palestinian rights also projected the misleading impression that the Court’s default policy was to restrain occupation and settlements. In fact, close observers, especially the lawyers arguing cases on behalf of Palestinians over the decades, criticize the Court heavily for being vastly more effective at upholding, enabling, and legitimizing Israeli policy in the occupied territories.21
The Judicial Revolution and Its Discontents: 1992–2009
By the 1980s, the Court was playing an incrementally more activist role. For example, it intervened in electoral proceedings, ministerial appointments and decisions, and government decisions, specifically around freedom of press and censorship—in some cases signaling or actively ruling in opposition to a government directive.22 During these years, the Court expanded, de facto, both the right of standing (the ability of petitioners to appeal to the Court), and the range of issues considered admissible (justiciable). Yet the Court almost never ruled against the legislature, with only one major case in which a ruling invalidated a law, in 1969.23
Then, in 1992, Israel’s legislature passed two new Basic Laws that, unlike the previous Basic Laws, laid out a series of basic protections for human rights and individual rights. These became a stand-in for a bill of rights, although they still did not explicitly stipulate equality for all citizens. It was left to the Supreme Court to deduce that such equality is provided in the Basic Law: Human Dignity and Liberty, where “human dignity” necessitates equality. Revision of both the Human Dignity law and the second law, Freedom of Occupation, two years later, also added a reference to the values stipulated in Israel’s Declaration of Independence—which, incidentally, does not mention democracy, but does stipulate equality. The declaration has been interpreted as a legal basis for general equality, albeit indirectly.24
In 1995, a Supreme Court ruling on the Mizrahi Bank case (United Mizrahi Bank v. Migdal Cooperative Village) determined that if a law passed by the Knesset following 1992 violated the Basic Laws—which have a higher standing than regular laws—the Court could strike it down (though the Court refrained from doing so in the Mizrahi Bank case). In the decision, Chief Justice Aharon Barak wrote that the Basic Laws represented a “constitutional revolution.”25 The Mizrahi Bank decision ushered in a major era of judicial activism in Israel. The Court not only became more activist, but also expanded the interpretations of rights stipulated in the Basic Laws to include marginalized groups and minorities—particularly on matters of gender equality, LGBTQ rights, and religion and the state. The judicial principles Barak had advanced even in the 1980s deepened under his term as chief justice: these principles allowed that “everything is justiciable,” and granted near-universal standing before the Court on issues of public interest.26
This phase became known as Israel’s “judicial revolution,” and attracted opposition from the start. In the two decades that followed, the most prominent opponents came from legal scholars. One example was Ruth Gavison—more of a cautionary critic than an opponent. Gavison was known for her active commitment to liberal values and civil rights overall. Yet she felt that the Court ought to be restrained in a society of deep social divisions, to maintain legitimacy among as many groups as possible.27 Another outspoken scholar who opposed judicial activism was Daniel Friedmann, who supported a conservative role closer to what he called the “classic era” of self-restraint in the early decades of statehood.28
Israel’s Supreme Court has struck down just twenty laws over nearly thirty years—a rate that scholars consider moderate compared to other countries.
Since the Basic Laws were enacted, Israel’s Supreme Court has struck down twenty laws (mostly clauses rather than an entire law) over nearly thirty years.29 Scholars consider this a moderate number of laws for a Supreme Court to strike down, and it is lower than the strike-down rate of other democratic countries, including the United Kingdom, Germany, and the United States.30 But critics of the Court retort that it has also ruled against government decisions and administrative rules, not just laws; these critics argue that there has been an alarming acceleration in the pace of primary legislation rejection in recent years.31 Yet a quantitative assessment shows the Court’s rate of intervention, even including government and administrative decisions, is comparable to and even lower than in other countries.32 Defenders of judicial activism also point to the growing pace of lawmaking aimed at violating Israel’s quasi-constitutional principles, which has prompted objections and subsequent petitions to the Court, which in turn led to High Court of Justice rulings against such efforts, and at a commensurate pace.
The structural peculiarities of Israel’s legislative and judicial framework were at the heart of the controversy over the Court’s activist turn. As noted, Israel lacks a formal, written constitution, and has only a single legislative chamber, a parliamentary system. These characteristics mean that Israel has fewer overall protections for constitutional rights, which are anchored primarily in the two Basic Laws from 1992, but otherwise depend on judicial precedent and interpretation. The Court ended up taking on duties that might have been filled by other branches of government in another setting.
In 2007, Ehud Olmert, then the prime minister, appointed Daniel Friedmann as justice minister. In this role, Friedmann undertook initial steps to restrain Supreme Court activism, primarily by drawing up a list of bills to limit the Court’s power. Other than an amendment limiting the term of the chief justice to seven years, none of them passed, in part because Friedmann’s term was cut short—Olmert resigned two years after the justice minister’s appointment.33 However, Friedmann put the notion of a counterrevolution into the public consciousness. Still, Friedmann’s critique—like Gavison’s—represented a professional perspective, by a scholar steeped in the study of law.
As some scholars voiced their opposition to the Supreme Court’s activism, the Court’s earlier opponents, such as its ultra-Orthodox critics, continued to express anger toward the Court. The community stepped up its activism, for example, as the Court issued rulings protecting gender equality and LGBTQ rights. Ultra-Orthodox anger at the Court came to a head in the late 1990s, when the Court ruled that the community would not be allowed to close a street to traffic in a Haredi (ultra-Orthodox) neighborhood in Jerusalem on the Sabbath. A mass protest was planned in Jerusalem in 1999, which an estimated 250,000–300,000 Haredim attended to protest the Court’s ruling on the issue of the street closure—but also to express their mounting anger over a number of rulings chipping away at the power of religious authorities over public life.34
The Populist Assault on the Judiciary: 2009–Present
What happened from roughly 2009 changed the nature of the legal debate. Friedmann had put opposition to judicial activism onto the public stage, from a professional perspective. Following Netanyahu’s return to power, the debate expanded, swept up by the larger program of populist right-wing leadership, and took on new dimensions. The visceral nature of the campaign was a reaction, in the eyes of this right-wing leadership, to the double blow of judicial overreach and liberal rulings. There were the landmark cases regarding occupation and settlement issues, such as the Elon Moreh decision. But the High Court of Justice issued further decisions over the years that generally mandated small adjustments that the right wing viewed as favorable to Palestinians—or at least, portrayed as such. In practice, High Court of Justice rulings broadly allowed exceptions or legitimized the overall policy. Examples include a ruling against the use of torture (in the mid-1990s), and another requiring the state to reroute portions of Israel’s separation wall (in 2004).35 Other rulings supported liberal values in Israeli life that, in the view of right-wing religious figures, forced a secularist agenda on the country.36
The populist incarnation of the assault on the judiciary had several new and specific characteristics.
First, the scope of the criticism expanded: where critics had once focused on the Supreme Court, they now opposed other judicial institutions, ultimately targeting the attorney general, the state prosecutor, law enforcement, legal advisors to the government ministries, and unspecified “bureaucrats.” The right wing eventually accused all of these offices and individuals of functioning as a de facto deep state. In the final years of the Netanyahu era, the accusations came to imply a hostile confrontation between the entire professional class of government, on one side, and elected officials, on the other. The full deep-state narrative did not materialize instantly, but grew in depth and breadth from approximately 2009 onward.
Second, right-wing political parties adopted—some would say exploited—professional criticism from legal scholars. Parties in the governing coalition borrowed the language of “democracy” and “the balance of powers” and integrated these terms and ideas with the more populist theme of restoring sovereignty that had been stolen from the people. The ultimate aim of restraining the Supreme Court, a theme that would broaden to include other parts of the judiciary—would later become central to right-wing political programs and electoral campaigns.
Third, a full range of actors joined the campaign: from politicians that influenced from the top down, to certain influential media and putatively bottom-up civil society activists. This combination of influence has had a clear impact on public attitudes over time, polarizing and politicizing the question of trust in the Israeli judiciary.
Finally, the debate took on a militant and obsessive tone at the level of public rhetoric. The campaign against the judiciary carries overtones of a crusade. As such, the animating ideas have spread into a full-blown attempt to redefine democracy as a whole—into a majority-owned, stripped down electoral exercise, with few protections for minorities and minimal checks on executive power. The right wing undertook all of this in the name of “the people”—a euphemism for Jews, or more narrowly, right-wing Jews.
An Illiberal Agenda
The Eighteenth Knesset, from 2009 to 2013, ushered in a new era of antidemocratic activity from the government and the legislature. The full range of bills, policies, and rhetorical attacks on democratic values and civil rights represented a significant break from the past.37 “There is no precedent for the wave of anti-democratic legislation,” analysts from the Israeli Democracy Institute (IDI) wrote in a 2015 report. “The number of bills is unprecedented . . . [The bills range across] numerous fields, adding to a widespread assault on the foundations of democracy.” The report identified a specific threat to the Supreme Court: “These bills, intended to tarnish the authority of the Supreme Court and to politicize justice, have led to severe political attacks . . . on the Supreme Court and damage public trust in the Court.”38
Advancing a salvo of laws that directly challenged democratic principles was bound to cause a confrontation with the judiciary.
Advancing a salvo of laws that directly challenged certain democratic principles was bound to cause a confrontation with the judiciary, as opponents challenged the laws in Court. Legislators knew that some bills would stall in Knesset committees, but advanced them for the public impact. Others were eventually challenged in the High Court of Justice, such as the 2013 renewal of legislation from 2003 designed to prevent Palestinian spouses of Israeli citizens from living together in Israel or gaining citizenship; a law to stifle calls for political boycott (2011); and early drafts of the future nation-state law (2011); among others throughout the decade.39
Starting in the Eighteenth Knesset, lawmakers and the government therefore had an immediate motive to try and constrain the Court. Curbing its role or undermining the Court’s legitimacy in the eyes of the public would clear a path toward enacting legislation that the Court might view as violations of basic human or civil rights and democratic principles—and which petitioners would definitely consider to be such violations.
Thus, the Eighteenth Knesset proposed various bills to limit the functions of the Court, such as increasing political influence over judicial appointments and limiting the Court’s accessibility for petitioners. One 2011 bill proposed that additional members of the Israeli Bar would sit on the judicial appointment committee—specifically, Bar members affiliated with the government. Another bill the same year proposed that the Knesset’s Constitution, Law and Justice Committee have far-reaching control over judicial appointments, including a veto over candidates. The authors of these bills were two Likud members.40
And in 2011, two Likud legislators submitted a bill designed to limit the standing of petitioners to the Supreme Court. Since its 1990s activist phase, the Court had broadly allowed near-universal standing—meaning that almost anyone could bring a petition before the Court (presiding as the High Court of Justice). With this practice, the Court had become an arena for human rights organizations representing Palestinians to argue occupation-related human rights violations.41 The 2011 bill sought to end such a broad right of standing—it would have prevented petitions by those who were not directly affected by an alleged violation of rights.42 The 2011 bill further stipulated that “public petitioners” had to disclose foreign funding sources—a requirement that targeted Israeli human rights organizations.
Other bills sought to erode the notion of justiciability. One such bill from 2011 proposed that the Court could not actually rule on security matters, and could only issue “declarative orders.” The bill was sponsored by Yaakov Katz, a far-right figure from a national religious party.44
The most important proposal to scale back justiciability was a 2012 bill for an “override clause” that stipulated how the Knesset could override a Supreme Court ruling striking down a law. The IDI called this bill “nothing less than revolutionary.” There had been earlier proposals to limit or override judicial review. But the IDI pointed out that the 2012 bill was advanced by the government itself—rather than being a private bill by lower-level figures within Likud or coalition partners—giving it greater legitimacy. It proposed a thinner majority needed in the Knesset to reverse a court ruling.45 The IDI’s legal team concluded that, if passed, the provision would effectively gut judicial review in Israel; since some of the relevant Basic Laws can be overturned by a majority simply of those present in the Knesset, if not otherwise specified. The bill would have left the human rights protections in Israel’s Basic Laws ultimately unprotected.46
Like most of the other proposals aimed at undermining the Court, the bill to pass an override clause (often referred to generally in Israel as an “override law”) did not advance before the Eighteenth Knesset disbanded. Yet the debate around it contributed to the emerging populist narrative around the need to restrain the Supreme Court—a narrative that was rapidly gathering force.47
A Minister at the Helm
The tenure of Ayelet Shaked as justice minister marked a new phase in the war against the Supreme Court. Shaked’s rise to influence tracked closely with the far-right movement’s growing campaign against the Court.
Shaked began in the Knesset as a legislator from the right-wing nationalist Jewish Home Party. She was elected in 2013, when the party had a young new leader, Naftali Bennett. In late 2014, the Supreme Court rejected a draconian law against African asylum seekers crossing into Israel from Egypt, after rejecting a previous amendment on the same issue, in 2013. The champion of the law was the interior minister at the time, Gideon Saar from Likud. In response to the Court’s rejection, Saar began to advocate a mechanism to override the Court on the issue of “infiltrators.”48 Saar’s proposal, which Shaked supported, was similar to the subject-specific limitation on judicial review for security issues proposed earlier. In a meeting of the Knesset committee on domestic affairs, Shaked gave a preview of her emerging political mission. “The second [Supreme Court] rejection is a blow to the principle of separation of powers and to democracy,” she said. “Therefore, I see no option but to legislate an override clause. This will be brought to the ministerial committee . . . even if it contradicts the Supreme Court. The Knesset is sovereign.”49
The 2015 elections led to the formation of an all-right-wing governing coalition, and Shaked was appointed justice minister under Netanyahu’s government. Her political program now revolved around diminishing the power of the judiciary in Israel.
It was the first time a minister representing a key political party in the governing coalition joined forces with the historic political opponents and critics of the Court, the ultra-Orthodox parties and the settler movement. During his time as justice minister, Daniel Friedmann had of course criticized the role of the Court, and proposed mechanisms to limit its activist role. But he was appointed from academia and ostensibly did not represent a political party; nor was he purposely supporting the ultra-Orthodox agenda in its opposition to the Court. Shaked had neither Friedmann’s legal training nor formal education in political theory.50 Her mission to reconstitute the role of Israel’s judicial institutions evolved entirely in the context of her political ideology and ambitions. She quickly gained prominence as a rising political star.
Shaked had neither Friedmann’s legal training nor formal education in political theory. Her mission to change Israel’s judicial institutions evolved entirely in the context of her political ideology.
At the time of her appointment, Shaked’s position on three policy areas relevant to the judiciary were well-known: First, she supported changing the judicial appointment committees to reduce the impact of judges relative to political figures. Second, she supported the “Jewish nation-state law,” having co-sponsored a new version during her first term in the Knesset, and she was also an avid supporter of the override clause.51 Third, she also sought the appointment of conservative, anti-activist judges.
During Shaked’s term as justice minister, from 2015 to 2019, she advanced the application of civilian law over West Bank settlements. This position was not a direct challenge to the judiciary, but was rather an attempt to redefine the rule of Israeli law in non-sovereign areas. She advocated for a law designed to exert ministerial control over the appointment of legal advisors to each ministry rather than professional appointments.
Early in her term, Shaked also considered supporting a move to split the roles of the attorney general. Friedmann had also supported this change as justice minister.52 Since Friedmann’s tenure, proponents of such a split have viewed it as a general means to disentangle the multiple roles of the Israeli attorney general: the attorney general provides legal advice on the government’s actions and issues binding opinions, and also acts as the head of the prosecution, with the power to file criminal charges against government figures.53 The attempt to split the position has both a professional and an ideological basis. Broadly, critics have viewed the proposal as a means to weaken another judicial authority. Saar, Israel’s justice minister since June 2021, made the proposal central to his coalition negotiation demands, and has promised that it would be among his first reforms. Critics continue to view the change as a means to weaken the status of the attorney general.54
By 2019, Shaked had had only partial success in her campaign against the Supreme Court and the judiciary. She boasted of appointing over three hundred judges to the Israeli courts, and presided over the appointment of six Supreme Court justices.55 But her major legislative proposals—the override law, the political appointment of legal advisors to ministries, changing the judicial appointment committees—stalled at various stages.
Ahead of the April 2019 elections (the first of four election cycles in the last two years), her party (then called the New Right) published a platform promising to “continue the judicial-restraint revolution that Minister of Justice Ayelet Shaked led in the Twentieth Knesset,” and included general proposals to redefine the authority and responsibility of the attorney general.56
While the New Right did not describe its platform in detail, it proposed Knesset legislation that would determine how the attorney general could represent the government “authentically” when defending government policies if challenged in court—implying that the attorney general had to support the government’s actions by default. The party was effectively advocating for constraints on the actions and independence of the attorney general, while implicitly deepening the confrontation between the executive and the Supreme Court—the main institution where the government would need to have its position “represented.”
Shaked provided more details on her thinking in a speech ahead of the April 2019 elections. She argued that, forty years earlier, Israel had seen a “quiet coup . . . without blood in the streets” based on the rising power of the judiciary; the revolution had “taken the public hostage.” Legal advisors to government ministries were central to the judicial takeover, she said. “Naturally, the power of legal policy advisors grew. . . . In the name of a murky public interest that was defined in the halls of the legal advisor. The actual public interest as expressed clearly through the ballot, has been shunted aside. Israeli democracy has changed unrecognizably.”57 Her party’s program, she promised, would include a slate of five new bills offering extreme versions of her basic priorities. One would entirely dissolve the judicial appointment committee, in favor of parliamentary hearings. Another would advance an override clause that was even more aggressive than the 2012 proposal. In the earlier iteration, the Knesset could reject a Supreme Court ruling with 65 votes (out of 120); the new bill would require just 61 votes for an override.58
Shaked’s term as justice minister emboldened belligerent and even bellicose attitudes toward the Court. Other right-wing legislators ramped up attacks on the Court’s role. A group of Knesset members from various parties—ranging from Likud through to the ultranationalist Jewish supremacist legislator Bezalel Smotrich (then part of the Jewish Home Party)—proposed another bill in 2017 to limit standing in the Supreme Court. In the explanation of the bill, the authors clarified that the bill was designed to prevent petitioners from advocating the dismantling of settlement outposts—through legal representatives acting on behalf of private Palestinian landowners hoping to protect expropriated land.59
From 2015 to 2019, the full narrative surrounding the Supreme Court emerged: the Court was a cabal of unelected, unrepresentative, self-perpetuating elites, suffocating the true voice of the people.
From 2015 to 2019, the full narrative surrounding the Court emerged: the Court was a cabal of unelected, unrepresentative, self-perpetuating elites, suffocating the true voice of the people, and violating the will of the voters. The language of the campaign was repeated methodically: the New Right platform spoke of the “authentic” representation of the government, and “transparency” in the functioning of the court system, hinting at a secretive system hidden from the public eye. These images became the supporting foundations for Netanyahu’s eventual portrayal of a vast state conspiracy against him, operating largely through various judicial agencies and law enforcement—what he would eventually refer to—though only occasionally—as “the deep state.”
Netanyahu Joins the Crusade
For much of the decade beginning in 2009, Netanyahu was less personally or publicly invested in the anti-judiciary campaign. In public statements, he conveyed an image of a restraining force holding back more extreme voices in his party and among his coalition. “I believe that in a democracy, a strong and independent Court is what enables the existence of all other democratic institutions,” he said in February 2012, in the midst of the slew of antidemocratic legislation of the Eighteenth Knesset, and barely two months before the government backed the override bill. “Just in the last few months, I buried every law that threatens the independence of the system . . . and I will continue to do so.”60
But Netanyahu’s approach to the judiciary can be compared to his relationships with settlements and the occupation: his actions and words diverged. He restrains his use of far right-wing, religious ideological language regarding settlements. Yet as prime minister, he ensured that peace negotiations would fail; advanced de facto creeping annexation, and later advocated de jure annexation specifically of settlements. He also nurtured parties and political figures, and embraced coalition partners, who worked to advance those policies as his proxies.
Similarly, despite his pretensions to being the protector of the courts, the assault on the judiciary gathered its greatest force under Netanyahu’s leadership. Figures within his Likud Party have been among the strongest voices leading the charge. In 2014, a rising Likud member named Tzipi Hotovely accused the Supreme Court of “legitimizing traitors to be part of the Knesset,” railing against the Court for allowing Balad, a party representing Palestinian citizens of Israel, to compete in elections. Hotovely accused the Court of protecting “free speech” that would never be allowed for the right wing. Her attack went beyond the Supreme Court. “The entire legal system permits this public craziness to happen time after time,” she said. “The true culprit is the Israeli legal system.”61
During Netanyahu’s premiership, further-right-wing figures became more extreme, actively accusing the Court of betraying Israeli security or supporting terrorists, based on the rare and partial rulings intended to keep human rights violations “proportional.” “We’ve lost our [military] deterrence,” Naftali Bennett said in 2018. “We need to liberate the [Israel Defense Forces’] hands from the shackles of fake law and fake morality.”62 Right-wing voices in the media echoed the sentiment more directly, increasingly blaming High Court of Justice rulings for terror attacks.63
Ahead of the April 2019 elections, Bennett and Shaked produced a campaign ad called “HCJ–IDF—A Breakup Song” featuring characters representing the Israel Defense Forces (IDF) and the High Court of Justice as a couple, while the politicians sang: “It’s better if we keep our distance.”64
As the aggressive environment against the Court escalated, Netanyahu’s corruption investigations were closing in. Once his indictment became imminent in 2018 (the attorney general formally indicted him in 2019), Netanyahu personally plunged into the broader anti-judiciary campaign.
Netanyahu helped broaden the attack well beyond the Supreme Court, which was not in fact his primary target. His wrath was reserved primarily for the state prosecutor and the chief of police, but included, by implication, the attorney general. When his indictment was announced, Netanyahu delivered a blistering speech attacking these figures directly and indirectly. It was his most elaborate communication to date implying the existence of a deep state. He described the investigations as “selective” and “polluted,” and called to “investigate the investigators.” Netanyahu contributed his influential voice to the Israeli public’s deepening distrust in the institutions of law enforcement.65 While Netanyahu cautiously avoided direct attacks against the Supreme Court, many assumed that he would eventually try to pass an immunity law—which would require an override law as well, as a backstop against the Court striking down immunity provisions.66
The bill sought to keep the conclusions of police investigations against public figures secret—stipulating specific conditions that happened to match the investigations of Netanyahu.
Members of Likud had already sought legislation curbing the powers of the police. In 2017, two Likud figures and Netanyahu cronies, David Bitan and David Amsalem, submitted a bill known as the “recommendations law.” The original version sought to keep the conclusions of police investigations against public figures secret—stipulating specific conditions that happened to match the investigations of Netanyahu, to be applied retroactively to those investigations.67 Criticism mounted as the bill was pushed through a fast-track process, culminating in a surprisingly large-scale street demonstration against the legislation—a protest that took many by surprise.68
Right-Wing Media Outlets Shape the Narrative
Throughout the decade, the top-down aspect of the judicial assault by both legislators and the executive branch has been buoyed by nongovernmental actors, including right-wing and pro-Netanyahu media in concert with a slew of civil society organizations.
Among the most prominent media organizations deeply committed to the judicial assault is Israel Hayom—the free newspaper founded by Netanyahu’s stalwart supporter, the late American billionaire Sheldon Adelson. Another active right-wing media leader on the issue is the online outlet Mida. Nearly all right-wing outlets in Israel, including the religious press, have supported the judicial assault, or at least host a critical editorial line.69
Noting the coordinated media onslaught against the judiciary is not to dismiss the value of diverse views and substantive arguments over the role of the judiciary. As observed above, Israeli democracy faces particular institutional complexities. But specific right-wing media have adopted the anti-judiciary position wholesale, as part of a broader populist right-wing and religious political agenda, to advance specific policies in Israel, or for the primary purpose of defending Netanyahu.
Israel Hayom has helped to frame the far-reaching criticism of judicial overreach within the populist storyline—primarily and opportunistically in defense of Netanyahu. As the corruption investigations advanced, the opinion pages and news coverage increasingly aimed their fire at the figures Netanyahu himself would later attack: the state prosecutor, attorney general, police, and the Supreme Court.
Each media outlet represented its own specific interests. “The Supreme Court Presiding as the Thought Police,” blared the headline of a 2016 Mida piece by right-wing activist Simcha Rothman (then relatively unknown, but now a legislator). In the column, the author protested a Court hearing of a petition against an IDF nominee for chief IDF rabbi, based on controversial statements the candidate had made. The hearing, wrote Rothman, “should send shivers down the spines of all who cherish freedom in Israel.”70
In 2017, Israel Hayom covered a marginal protest against the Supreme Court, in response to a ruling favoring asylum seekers in Israel.71 The protest was organized by two tiny organizations called Derekh Haim and Ha’Ir Ha’Ivrit (the Hebrew City), which advocated a religious right-wing and an anti-migrant agenda. Their slogan for the protest was “Down with the dictatorship of HCJ [the High Court of Justice]!” The article’s framing captured typical themes: “HCJ Is Overstepping Its Authority,” reads the headline. “HCJ is interfering in the voters’ choice,” the article goes on to say. “An extreme-left agenda, [imposed on] the whole nation.”72 The founder of the Hebrew City, May Golan, entered the Knesset as a legislator from Likud in 2019.73
A comprehensive review of anti-judiciary news coverage is beyond the scope of this report— regular columnists publish articles almost daily in this vein. The tone, breadth, and targets of the commentary can be illustrated with a sampling of headlines and topics. One article from October 2019, “The Attorney General Must Explain His Double Standard,” attacks both the attorney general and the state prosecutor for their investigation of Netanyahu’s media-related corruption case. The author lays out the concept of “selective enforcement,” a term that has become a fixture of Netanyahu’s responses to the corruption charges.74 Another article, published on the same date, attacks the state prosecutor by criticizing the ongoing investigation of witnesses related to the prime minister’s corruption charges.75
In December 2019, Israel Hayom echoed Netanyahu’s own call to “investigate the investigators” (referring to those who investigated his corruption trials): “If HCJ Rejects Netanyahu [as prime minister], an Investigation Is Needed.”76 The article addressed the High Court of Justice’s imminent hearing of a petition to block Netanyahu from becoming prime minister while under indictment. The Court’s “discussion about the possibility of annulling the choice of millions of citizens by preventing the prime minister from forming the next government is the height of the war between governing branches,” reads the article. “HCJ has already proved: sometimes the game is rigged from the start.”
Finally, the same newspaper makes the case that the Court is opposed to the Jewish character of the state: “HCJ Presents: The Effort to Cut Us off from Our Jewish Symbols.” “The Supreme Court, ever since the term of Chief Justice Aharon Barak, forces extreme liberal opinions on Israeli society, whose roots lie in the West Coast of the United States,” the Israel Hayom columnist writes. “These positions are far from expressing the spirit of Israeli society at large.” The author calls the Court “drunk on power.”77
“The bonfire of the rule of law has been extinguished,” the same columnist later wrote, tracking the testimony of a witness against Netanyahu in his active corruption case. Future scholars “will discover that one of the main contributions of the Netanyahu era will have been to expose the disgrace, the insidious rot that has taken over the authorities of law enforcement.”78
Civil Society against the Courts
Media efforts are augmented by a new generation of civil society organizations. These are purportedly nongovernmental organizations (NGOs) and other nongovernmental groups, but their intimate ties with the parties in power distinguish them from civil society that acts as a critic or watchdog for government actions. These groups of right-wing actors—NGOs, think tanks, or less clearly defined formations—are devoted largely or exclusively to curbing the judiciary. They have emerged over the last decade as the anti-judiciary campaign has been at its most intense, most politicized, and most coordinated.
The most prominent of these groups is the Kohelet Policy Forum. Founded in 2012, Kohelet—like a number of other organizations in this category—emphasizes transparency and accountability. However, its website provides no information about the history of the organization, nor a list of its funders, unlike most other NGOs in Israel.79 In a 2013 video, the organization’s founder, Moshe Koppel, states that the group aims to strengthen “national sovereignty as well as individual liberty,” and to do this, the group “helps” legislators. Echoes of American right-wing themes appear in the paragraph explaining the organization’s goals on its website—a paragraph that includes a statement touting “individual liberty and free-market principles in Israel.”80
Within the broader vision, Kohelet is among the leading groups advancing thought, draft legislation, and public events advocating judicial restraint. Kohelet’s researchers have argued that Supreme Court rulings are “an affront to Israeli democracy and sovereignty.”81 In 2018, the organization published a sarcasm-laden YouTube video against the Israeli Supreme Court, which it portrayed as “superheroes”—though treated more as supervillains—who have made an illicit power grab and control the state through supernatural powers.82
Consistent with the legislative processes reviewed here, Kohelet’s anti-judiciary agenda goes hand in hand with its ultranationalist aims. (This agenda is not limited to the Supreme Court—the organization lashes out against the other main judicial institutions of the attorney general and the state prosecutor, or calls for constraints on their activities.)
Zvi Hauser, who was a senior fellow at Kohelet, was among those who initiated Israel’s Jewish nation-state law passed in 2018, among the most discriminatory laws in Israel (and a Basic Law).83 Other Kohelet associates have also vocally supported the Jewish nation-state law.84 The organization has sponsored public events advancing Israeli annexation in the West Bank, with participants at the highest level—including Netanyahu when he was prime minister.85
Kohelet holds a broad nationalist Jewish and expansionist ideology, tinged with libertarianism—which is conveniently accompanied by deep criticisms of the judiciary and proposals to restrain its institutions. Kohelet is closely associated with newer groups focused more narrowly on the judiciary. The Israel Law and Liberty Forum, while not formally affiliated with Kohelet, was founded and is supported by the same funders—the Tikva Foundation, a deep well of private American money raised for far-right causes in Israel, with little transparency.86 The website of the Law and Liberty Forum states that it “advances a conservative legal worldview based on four core principles: the separation of powers, judicial restraint, individual liberty, and limited government.”87 The “about” section portrays the same basic storyline that is presented almost daily in the conservative, religious, and pro-Netanyahu media regarding the judiciary: “On matters relating to the judiciary [and] the foundations of democratic regimes . . . Israeli public discourse is often one-sided, shallow, and monolithic. An orthodoxy promoting judicial activism and supremacy is advanced in academia, the media, and in Israel’s intellectual elite.”88
A third closely related organization is Meshilut: the Movement for Governability and Democracy. The group was co-founded by Simcha Rothman, who wrote the 2019 book Supreme Rulers: How Israel Became a Legalocracy.89 The introduction to Rothman’s book, attributed to “Adam Gold,” is bursting with battle-language descriptions of the judiciary. At one point, the introduction accuses Barak, the legendary former chief justice, of using the wartime “Hannibal directive” when disagreeing vehemently with a speaker at a conference—referring to the practice of indiscriminate firing at the enemy to prevent hostage-taking, even at the risk of killing hostages.90 “Adam Gold” is a pseudonym for an anonymous like-minded social media figure (or possibly several) who has been banned from Facebook.91 Among the external organizations assisting with fundraising for Meshilut is the Israel Independence Fund, which funds some of the most radical right extremists in Israel, including settler groups seeking to defy the IDF’s authority in the West Bank; the shadowy organization Ad Kan, whose primary mission is to delegitimize left-wing civil society activism; the messianic Temple Mount Heritage Foundation; and the Guardians of Judea and Samaria.92
Among the external organizations assisting with fundraising for Meshilut is the Israel Independence Fund, which backs some of the most radical right extremists in Israel.
The connection between dedicated anti-judiciary activists with extreme religious and settler communities is also evident in their personnel. Rothman, the Meshilut co-founder, lives in a settler outpost deep inside the West Bank called Pnei Kedem (the name means “Facing East”). Yehuda Amrani, the other co-founder, lives in the West Bank settlement of Psagot, adjacent to the Palestinian city of Ramallah. Amrani insists that the organization is not political, and has said that “the ability to create a change, to give sovereignty back to the people, that has been taken away by the rule of bureaucrats and jurists, depends first of all on public awareness.”93 Among the initial signatories for founding Meshilut were members of an extremist settlement organization, Kommemiyut. After serving as executive director of Meshilut, Amrani became, in 2020, the spokesperson for the bloc of West Bank settlements north of Jerusalem known as Binyamin.94
These organizations do not function in the classic role of nongovernmental watchdogs; rather, they are intimate partners with the government. Kohelet essentially emerged from the preexisting friendship between the founder, Koppel, and Michael Eitan, a key Likud member at the time.95 The two coauthored what would later become the “NGO transparency law” targeting foreign funding of left-wing NGOs (passed in 2016). Hauser entered politics in 2019 and is currently a legislator with New Hope, the party whose leader, Saar, was appointed minister of justice in 2021. Senior figures at Kohelet boast that they have a direct line to Ayelet Shaked, who is considered to be among the politicians most receptive to their general orientation and policies.96
Rothman entered the Knesset in 2021 with the most controversial party in the Israeli political system, the Religious Zionist list, composed of ultranationalists and followers of the late Meir Kahana, iconic leader of the Jewish supremacist movement. The party won six seats in 2021.
There Is Still a Chance for Relief
Perhaps reassuringly, most of the policy, procedural, and legislative proposals for fundamental changes to the Supreme Court or the judiciary have not been implemented or passed into law. The fact that so many government policies and legislation are challenged by citizens petitioning the Court reflects the existence of a robust opposition community in Israel. That community consists largely of NGOs and civil society watchdogs that focus on liberal democratic principles and civil and human rights; it also includes regular concerned citizens. Similarly, despite years of rhetorical abuse and accusations, the Israeli legal authorities continue to investigate, indict and try public figures—Netanyahu’s trial for corruption charges opened while he was still prime minister.
Shaked’s failure to advance most of the specific reforms she advocated, other than appointing conservative judges, earned her bitter attacks from voices on the far right, such as Mida.97 The recommendations law stipulating that the police cannot provide recommendations about an indictment based on their investigations into public figures passed in 2017; but following public protests the final version was watered down and was not made retroactive to apply to Netanyahu’s investigations.98
Whether due to political stability or his own qualms, Netanyahu did not advance a retroactive immunity law bolstered by an override clause against judicial review. His own position on the subject was unclear—he has publicly denied that he intended to advance these measures, but the media reported that he made such aims central to coalition negotiations.
Israel’s new government still has the power to halt and reverse some of the damage, but the future course is ambiguous.
Israel’s new government still has the power to halt and reverse some of the damage, but the future course is ambiguous. Saar, the justice minister, hails from a lengthy political career serving under Netanyahu in the Likud, breaking away only months before the 2021 elections. He has insisted that he will advance judicial reforms, yet has clearly sought to portray a moderate, professional context for his program. In a careful inaugural speech, Saar explicitly distanced himself from the populist camp seeking to delegitimize the judiciary through “wild conspiracy theories,” and to destroy its independence.99 Saar nicknamed that camp “D9,” a term commonly known in Israel to refer to a bulldozer model, implying that its proponents would raze the legal system entirely. Saar contrasted them to the judicial “orthodoxy”—those who believe the judiciary is above criticism—and portrayed himself as a pragmatist between these two poles. Yet under the terms of the coalition agreement, if the government lasts, Shaked will return to the position of justice minister in 2023; at present she holds a key spot on the nine-member judicial appointment committee (which includes Supreme Court justices).
As this report has shown, the assault on the Supreme Court, other judicial agencies, and even the ambiguity over the authority of the law have historic roots that began well before Netanyahu. The modern incarnation of the judicial argument lives on through populist right-wing nationalist forces distributed throughout a range of social institutions, led by figures whose entire political program hinges on a compliant, subservient judiciary with little power to put human rights ahead of the nationalist agenda. Such figures may be all the more determined in their goals as a result of losing power with the formation of a new government in June 2021.
Further, the social impact of a legislative process does not dissipate if any one bill fails to pass into law. The media coverage, the public debate, and the advocacy for these changes all bolster the story the populist nationalist right wing has been telling: the judiciary is suppressing the true will of the people and suffocating society, and must be constrained. The vitriolic nature of the debate and the relentless repetition of the narrative have penetrated Israeli society. Laws and policies may not have been implemented yet, but groundwork is being laid in the public consciousness.100
The impact is already substantial. The Israel Democracy Index, an annual metric published by the IDI, shows a significant net decline in public trust in the Supreme Court since the Index began in 2003. The Court still enjoys the trust of the majority of the public—52 percent of Jews and 60 percent of Arabs in Israel, numbers that are still well above the trust the public has in politicians. But in 2003, more than 70 percent of respondents in both communities reported trusting the Court. Further, political polarization over the Supreme Court has never been so great. The 2020 index also showed that there were extreme gaps in the amount of trust that Israeli Jews put in the Court, depending on their political orientation. Those reporting left-leaning views were far more trusting than those in the center or on the right.101
In the same survey, only a minority of Israelis reported trusting the attorney general.102 There was also deep polarization on this question according to the political ideology of respondents. Similarly, 44 percent of Jews and just a third of Arabs in Israel trusted the police.103
The numbers are matched by alarming developments. Due to personal threats and incidents of vandalism, Supreme Court justices, the attorney general, and state prosecutors have all required security protection at various times; reportedly, the chief justice has a permanent security detail.104 In June 2020, two Supreme Court justices received right-wing threats within two days of one another.105 Following the announcement of Netanyahu’s indictment in November 2019, his supporters held a large demonstration in Tel Aviv focused almost entirely on key figures in the judiciary. The large majority were religious Jews, both ultra-Orthodox and national-religious, including settlers. The signs read like manifestos, accusing the judiciary of “hubris and breach of trust.” Others equated the exoneration of Netanyahu with the salvation of democracy, and were extremely specific in their demands regarding the judiciary: “change the method of choosing judges; establish an independent commission to oversee the state prosecutor; split the role of the attorney general; pass a Basic Law establishing separation of powers.” A sign in Hebrew and in French read “Democracy of the people, yes! Dictatorship of the judiciary, no! Israel is forever.”
The more the Israeli public internalizes the narrative against the Court, the more willing it will be to support judicial constraints in the future.
The more the Israeli public internalizes these arguments, the more willing it will be to support judicial constraints in the future. The result will advance slow suffocation of judicial independence in the absence of a comprehensive, permanent constitutional order or protections. This is a grave concern in a country marked, from its beginnings, by undemocratic practices such as martial law and occupation, including the authority it has exercised over occupied territories since 1967. The collapse of constraints will give more leeway to right-wing forces to deepen policies that violate constitutional principles, and democracy itself.
It would be complacent and inaccurate to conclude that the threat subsided with the change of government and Netanyahu’s exit. The last decade should be understood as a critical phase in the erosion of democratic values and institutions, and very possibly a prelude to the next.
As a new government moves into power, there is no way to know if it will last or give way quickly to a resurgence of the right-wing forces led by Netanyahu or someone else. The new government represents a seesaw of parties, with the centrist party Yesh Atid at the fulcrum. The new justice minister is a right-wing former Likud member, but has portrayed himself as bringing the debate back to the professional arena, and out of the ring of conspiratorial populist arguments. If the discussion does not become more professional and measured, or if the farther-right returns to power, the impact on the judiciary will be dire.
The judicial system has not entirely been a bulwark sustaining liberal values, nor has it truly reined in occupation policies. But it is still the lynchpin of efforts in those directions. Anyone committed to making Israel more democratic should be disappointed that the judiciary has not been able to do more over the years, but devastated should this branch of government sustain mortal damage.
This report is part of “Transnational Trends in Citizenship: Authoritarianism and the Emerging Global Culture of Resistance,” a TCF project supported by the Carnegie Corporation of New York and the Open Society Foundations.
header photo: Israelis protest in support of Benjamin Netanyahu, then the prime minister, near the district court on May 24, 2020 in Jerusalem. Source: Amir Levy/Getty Images
- This report uses “the judiciary” to refer to the judicial branch as a whole, and specifically those agencies under the rubric of the Ministry of Justice, including the Supreme Court, the attorney general, the state prosecutor, and sometimes law enforcement (which, however, is organized under a different ministry).
- Dahlia Scheindlin, “Netanyahu, Indicted, Takes Israel’s Institutions Down with Him,” The Century Foundation, December 4, 2019, https://tcf.org/content/commentary/netanyahu-indicted-takes-israels-institutions/.
- In general, the institution is referred to here as “the Supreme Court,” but “High Court of Justice” is used when referring to specific cases when the Court ruled in that capacity.
- “About the Supreme Court,” State of Israel, Judicial Authority, Supreme Court, https://supreme.court.gov.il/sites/en/Pages/Overview.aspx.
- In a highly pertinent insight, Pnina Lahav demonstrates that the Zionist anticolonial struggle prior to independence depended on a utilitarian view of the law to facilitate the Zionist cause and undermine colonial rule through, for example, illegal immigration and the revolutionary spirit. At the same time, she observes that the mandatory legal system did not include or even aspire to a separation of powers in the sense of liberal democracies. Pnina Lahav, “The Supreme Court of Israel: Formative years, 1948–1955,” Studies in Zionism 11, no. 1 (1990): 45–66.
- “Constitution for Israel,” the Knesset, https://knesset.gov.il/constitution/ConstIntro_eng.htm.
- Alexander Kaye, The Invention of Jewish Theocracy: The Struggle for Legal Authority in Modern Israel ( Oxford: Oxford University Press, 2020), 73. (Chapter 3, in general, provides a comprehensive review of this phase.)
- David Kretzmer, “The Constitutional Debate in Israel,” Constitutional Forum Constitutionnel 1, no. 1 (1989): 13.
- Any given Basic Law might contain a specific “entrenchment” clause stipulating a higher threshold needed to overturn that specific law. Regular Knesset laws are determined on the basis of a majority of members present. (See “Basic Law- The Knesset—1958—Updated Translation,” Israel Ministry of Foreign Affairs, https://www.mfa.gov.il/mfa/mfa-archive/1950-1959/pages/basic%20law-%20the%20knesset%20-1958-%20-%20updated%20translatio.aspx.
- “Basic Laws,” the Knesset, https://m.knesset.gov.il/en/activity/pages/basiclaws.aspx.
- Israel has laws with regular status (not Basic Laws) guaranteeing equality in specific areas of life, and for specific groups, such as gender equality, but not as a generalized principle applied to all citizens, and not at a constitutional level.
- Kaye, The Invention of Jewish Theocracy, 138.
- Daniel Rothstein, “Adjudication of Freedom of Expression Cases under Israel’s Unwritten Constitution,” Cornell International Law Journal 18, no. 2 (Summer 1985): 247–86.
- The Labor-led coalitions had essentially nurtured the first decade of the settlement project from 1967 to 1977; with Likud now in power, many settler leaders presumed the path to expansion would be easier. For a detailed analysis of the first decade in which the settlement project was entrenched under the tolerance, ambiguity, and partial support of the Labor government, see Gershom Gorenberg, The Accidental Empire: Israel and the Birth of Settlements, 1967–1977 (New York: Holt, 2007).
- The first quote in the sentence comes from Moshe Hanegbi, Hakvalim shel Tzedek (Jerusalem: Yavneh Publishers, 1981), 11. The second quote comes from “Government to Seek Alternative Site for Elon Moreh, Special Cabinet Session Thursday to Discuss Issue,” Jewish Telegraphic Agency, October 29, 1979.
- Michael Sfard, The Wall and the Gate (New York: Metropolitan Books, 2017), 178.
- “Israel’s Supreme Court Rules Elon Moreh in Samaria Must Be Removed,” Jewish Telegraphic Agency, October 23, 1979, https://www.jta.org/1979/10/23/archive/israels-supreme-court-rules-elon-moreh-in-samaria-must-be-removed.
- Quoted and reported in Yehuda Shaul and Dror Etkes, “The Settlers and the High Court of Justice—Elon Moreh” (in Hebrew), Haaretz, November 27, 2018, https://www.haaretz.co.il/opinions/.premium-1.6696589.
- Sfard, The Wall and the Gate, 179, quoting Avigdor Feldman.
- See Sfard’s overall thesis. See also David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (New York: SUNY Press, 2002).
- The Court had already ruled on government decisions on censorship from the 1950s, but overall such interventions were sparse until later years (Rothstein, “Adjudication of Freedom of Expression).
- Menachem Hofnung, “The Unintended Consequences of Unplanned Constitutional Reform: Constitutional Politics in Israel,” The American Journal of Comparative Law 44, no. 4 (1996): 585–604; 592. For a detailed discussion on legislative supremacy, with the exception of the 1969 Bergman vs. the Ministry of Finance case, see Rothstein, “Adjudication of Freedom of Expression”, 251.
- Both laws were changed to include a clause defining “Basic Principles: these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.” From full text of the 1994 Basic Law: Freedom of Occupation, https://knesset.gov.il/review/data/eng/law/kns13_basiclaw_occupation_eng.pdf, and full text of Basic Law: Human Liberty and Dignity, https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/39134/97918/F1548030279/ISR39134.pdf (1992, with 1994 amendment).
- Suzie Navot, Constitutional Law of Israel (Netherlands: Kluwer Law International, 2007), 43. The term was used very shortly after the laws were passed, by Aharon Barak in writing, and reportedly by Dan Meridor, a key Likud figure who had supported the legislation. Other sources say the first person to use the term was the professor Claude Klein, in a newspaper article published two weeks after the passage of the law. Referenced in Yehoshua Schoffman, “The Constitutional Revolution of 1992” (in Hebrew), Ministry of Justice, March 28, 2019, https://www.gov.il/he/Departments/publications/reports/roots_1992_1#17.
- Daniel Friedmann, “Judicial Activism and the Wonders of Statistics” (in Hebrew), Daniel Friedmann’s personal website, May 23, 2017, http://danielfriedmann.com/blog/judicial-activism-and-statistics; Daniel Friedmann, The Purse and the Sword: The Trials of Israel’s Legal Revolution (Oxford: Oxford University Press, 2016).
- Ofer Aderet, “Israeli Legal Scholar, Rights Activist, Prof. Ruth Gavison Passes Away at Age 75,” Haaretz, August 15, 2020, https://www.haaretz.com/israel-news/.premium-israeli-lawyer-rights-activist-prof-ruth-gavison-passes-away-at-age-75-1.9074795. See also a discussion of Gavison’s understanding of the relationship between the elected institutions in a democracy and individual human rights, which led her to oppose Court limitations on the legislature, in Frances Raday, “The Huge Legacy of Ruth Gavison . . .” (in Hebrew), ICON-S-I Blog, 2020, https://israeliconstitutionalism.wordpress.com/2020/11/15/הירושה-הענקית-של-רות-גביזון-והמלכוד-של/. On Gavison’s thinking specifically about judicial review and judicial activism, see Ruth Gavison, “The role of Courts in Rifted Democracies,” Israel Law Review 33 (1999): 216.
- Friedmann, The Purse and the Sword.
- Amir Fuchs, “How Many Laws Were Struck Down by the Israeli Supreme Court?” Israel Democracy Institute, June 22, 2020, https://en.idi.org.il/articles/31874. On May 23, 2021, the Court issued a ruling containing a strong rebuke against a Basic Law amendment that had been passed in 2020 to head off new elections in the midst of the country’s two-year long political crisis—setting off an intense debate about the potential precedent of the Court intervening in a Basic Law rather than a regular law. However, the Court’s rebuke did not actually annul the law. See Yonah Jeremy Bob and Gil Hoffman, “High Court Slams Knesset for Budget Delay-Law, Warns of Unconstitutionality,” Jerusalem Post, May 24, 2021, https://www.jpost.com/israel-news/high-court-sort-of-nixes-basic-law-for-first-time-66890.
- Guy Lurie, “Invalidating Legislation: Is Israel an Anomaly?,” Israel Democracy Institute, April 26, 2018, https://en.idi.org.il/articles/23372.
- Simcha Rothman, “No Brakes: Judicial Activism Doesn’t Stop” (in Hebrew), Mida, April 23, 2018, https://mida.org.il/2018/04/23/איבדו-את-הבלמים-האקטיביזם-השיפוטי-של-ב/.
- Maoz Rosenthal, “A Unitary Actor? Invitation to an Empirical-Conceptual Discussion about HCJ as a Public Institution” (in Hebrew), ICONS-IL Blog, June 26, 2019, https://israeliconstitutionalism.wordpress.com/2019/06/26/האמנם-שחקן-יחידתי-הזמנה-לדיון-אמפירי-מ/#_edn8.
- Basic Law: The Judiciary, 1984 (Amendment 45, 2007), https://www.nevo.co.il/law_html/law01/055_002.htm#Seif9; see also Yuval Yoaz, “Will Term Limits Strengthen the Courts, or Weaken the Top?” (in Hebrew), Haaretz, August 21, 2007, https://www.haaretz.co.il/misc/1.1435771.
- Evelyn Gordon, “The Creeping Delegitimization of Peaceful Protest,” Azure 3 (Winter 1998), http://www.daat.ac.il/daat/ezrachut/english/gordon2.htm; Lee Hockstader, “Israeli Court Sharpens Discord between Secular, Ultra-orthodox Jews,” Washington Post, February 14, 1999, https://www.washingtonpost.com/archive/politics/1999/02/14/israeli-court-sharpens-discord-between-secular-ultra-orthodox-jews/6145d733-b252-4881-be7c-653c2ecaf842/. These rulings were not all explicitly against the power of religious authorities, but involved indirect challenges—including rulings upholding gender equality and LGBTQ equality, perceived as direct threats to the religious authority over family law, for example. See for example Frances Raday, “Women’s Human Rights: Dichotomy between Religion and Secularism in Israel,” Israel Affairs 11, no. 1 (January 2005): 78–94; and Margit Cohn, Eli Linder, and Mordechai Kremnitzer, “Religion and the High Court of Justice (Part 1): Image and Reality,” Israel Democracy Institute, Policy Paper 39, 2003, https://en.idi.org.il/publications/7854.
- Yuval Ginbar, and Jessica Montell – Btselem, “Legitimizing Torture: The Israeli High Court of Justice Rulings in the Bilbeisi, Hamdan and Mubarak Cases,” Btselem, January 1997, https://www.btselem.org/sites/default/files/publications/199701_legitimizing_torture_eng_0.pdf; “Judgements of the Israeli Supreme Court: Fighting terrorism within the law,” vol. 2, Supreme of Israel and Ministry of Foreign Affairs, 2004–05, https://mfa.gov.il/MFA_Graphics/MFA%20Gallery/Documents/SupremeCourtFightingTerror2.pdf. These represent two examples out of numerous others.
- It is worth observing that the idea of the Court as an elite minority that imposes its will on the majority is ironic with relation to religious-secular issues. Just a minority of Israel’s population defines itself as religious Jews—ultra-Orthodox and national religious combined are fewer than one-quarter of the adult population. Semi-religious or “traditionalists” generally lean toward less intervention of religion in state and public life, regardless of their private forms of religious observance (based on the author’s research).
- See for example, Dahlia Scheindlin, “The Logic Behind Israel’s Democratic Erosion,” The Century Foundation, May 29, 2019, https://tcf.org/content/report/logic-behind-israels-democratic-erosion/; “Anti-Democratic Initiatives Advanced by the 20th Knesset,” Association for Civil Rights in Israel, https://campaigns.acri.org.il/democracy/.
- Amir Fuchs, Dana Blander, and Mordechai Kremnitzer, Anti-Democratic Legislation in the 18th Knesset (2009–2013) (Jerusalem: Israeli Democracy Institute, 2015, in Hebrew), 16–17.
- Most of the challenges to the 2011 boycott law were rejected, See “Dispatches: Israeli Supreme Court Upholds ‘Anti-Boycott Law,” Human Rights Watch, April 18, 2015, https://www.hrw.org/news/2015/04/18/dispatches-israeli-supreme-court-upholds-anti-boycott-law. For background on the Court’s rejection of petitions against the citizenship law, see Mazen Masri, “Love Suspended: Demography, Comparative Law and Palestinian Couples in the Israeli Supreme Court,” Social and Legal Studies 22, no. 3 (2013): 309–34. in fact, the Citizenship and Entry into Israel Law was not passed by the Eighteenth Knesset but much earlier, in 2003—however, it was passed via a temporary order and renewed annually. However, the High Court of Justice debate during the term of the Eighteenth Knesset generated related arguments against the Court—which ultimately ruled in favor of the law. On the Court hearing against the nation-state law, see Aaron Boxerman, “In First, High Court Mulls Voiding Quasi-Constitutional Nationality Law,” Times of Israel, December 22, 2020, https://www.timesofisrael.com/in-first-high-court-mulls-voiding-quasi-constitutional-nationality-law/. See the 2011 draft: “Draft Basic Law: Israel—the Nation-State of the Jewish People,” the Eighteenth Knesset, August 3, 2011, accessed through ACRI, https://law.acri.org.il/en/wp-content/uploads/2011/10/Jewish-state-bill-ENG.pdf.
- Fuchs, Blander, and Kremnitzer, Anti-Democratic Legislation, chapter B/3. Among the authors of the bill to ensure government-friendly representatives on the judicial appointment committee were legislators from several right-wing and religious parties, including Yariv Levin and Zeev Elkin, two Likud members. These two alone were the authors of the bill increasing control of the Knesset committee over judicial appointments.
- The most thematic and comprehensive examination of legal struggles against occupation policies is found in Sfard, The Wall and the Gate.
- “Basic Law: Justice (Amendment to public petitioners),” the Knesset, National Legislation Database, 2011, https://fs.knesset.gov.il/18/law/18_lst%20%20_167223..doc. The bill was proposed by Danny Danon and Yariv Levin.
- The specific attacks against nongovernmental organizations (NGOs) criticizing occupation policy were prompted in part at this time by the 2010 “Goldstone Report” investigating war crimes in the recent war between Israel and Gaza (“United Nations Fact Finding Mission on the Gaza Conflict,” UN General Assembly, September 25, 2009, https://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf). The Israeli government refused to cooperate with the international investigating commission, which drew on material from these human rights organizations instead—sparking outrage from right-wing activists who launched a bitter campaign publicizing their role.
- Fuchs, Blander, and Kremnitzer, Anti-Democratic Legislation, 115.
- Mordechai Kremnitzer and Amir Fuchs, “Basic Law: Legislation—A Lethal Blow to the Supreme Court,” Israel Democracy Institute, April 30, 2012, https://en.idi.org.il/articles/10280.
- The Basic Law: Freedom of Occupation is entrenched and requires an absolute majority of all Knesset members to be overturned (61 out of 120). The Basic Law: Human Dignity and Freedom defines clear protections of the rights specified, but has no entrenchment clause. “Basic Laws of the State of Israel,” Israel Ministry of Foreign Affairs, https://www.mfa.gov.il/mfa/aboutisrael/state/law/pages/basic%20laws%20of%20the%20state%20of%20israel.aspx.
- Dahlia Scheindlin, “New Bill Would Let Knesset Crush the Court,” +972 Magazine, April 8, 2012 https://www.972mag.com/new-bill-would-let-the-knesset-crush-the-court/.
- Omri Efraim and Moran Azulay, “Author of the Infiltrator Law, Interior Minister Gideon Saar: ‘Constrain the Court’s Authority, We Have Nothing Left” (in Hebrew), Ynet, September 22, 2019, https://www.ynet.co.il/articles/0,7340,L-4574030,00.html.
- “Domestic Affairs Committee Reveals: The Attorney General Will Oppose an Override Clause” (in Hebrew), Knesset News, October 6, 2014, https://main.knesset.gov.il/News/PressReleases/Pages/press061014-2.aspx.
- “The Minister of Justice, Ayelet Shaked,” Ministry of Justice, http://www.justice.gov.il/En/about/SaarHaMeshpatim/Pages/MinisterofJustice.aspx.
- Ayelet Shaked, Yariv Levin, and Robert Ilatov, “Proposed Basic Law: Israel—The Nation-State of the Jewish People,” the Nineteenth Knesset, https://law.acri.org.il/en/wp-content/uploads/2014/06/JewishDemocracyBill-English.pdf; Aeyal Gross, “Appointment of Shaked to Justice Minister Could Threaten the Independence of the Judiciary” (in Hebrew), Haaretz, May 7, 2015, https://www.haaretz.co.il/news/law/.premium-1.2631665.
- Lahav Harkov, “Shaked Mulls Splitting Attorney General into Two,” Jerusalem Post, August 4, 2015, https://www.jpost.com/israel-news/politics-and-diplomacy/shaked-mulls-splitting-attorney-general-job-into-two-411092.
- Suzie Navot, The Constitution of Israel: A Contextual Analysis (Oxford: Hart Publishing, 2014), Chapter 6. Navot also examines the professional critique of the attorney general position in Israel, which is not defined or anchored in law and has evolved largely in concert with specific personalities filling the position or in accordance with political preferences. Note that some legal scholars question whether the attorney general’s opinions are binding, but the Israeli government states that they are. See “The Attorney General,” Israel Ministry of Foreign Affairs, https://www.mfa.gov.il/MFA/AboutIsrael/Spotlight/Pages/The%20Attorney%20General.aspx.
- Yonah Jeremy Bob, “The Coming Legal Revolution—Will the A-G’s Position Be Split in Two?” Jerusalem Post, March 21, 2021, https://www.jpost.com/israel-news/the-coming-legal-revolution-not-from-bibi-analysis-662722. While Netanyahu was still prime minister and facing corruption charges, critics believed he supported the split out of purely personal motives, to weaken the authority of the attorney general. Saar has argued that his support reflects professional considerations rather than the self-interest of a defendant against corruption charges.
- See Yedidia Stern, “The End of Delegitimization of the Supreme Court,” Jerusalem Post, March 3, 2018, https://www.jpost.com/Opinion/The-end-of-the-delegitimization-of-the-Supreme-Court-544108; also Guy Luria, “The Committee for Conservative Appointments” (in Hebrew), Globes, March 20, 2019, https://www.idi.org.il/articles/26075 Accessed June 17.
- “The Principles of the New Right Party” (in Hebrew), the New Right, led by Bennett and Shaked [sic], 2019, 10, https://www.idi.org.il/media/12268/הימין-החדש-מצע.pdf.
- Yaki Adamkar, “Cancel the Judicial Appointment Committee, Limit the Attorney General: Shaked’s Plan for the Judiciary” (in Hebrew), Walla! News, March 18, 2019, https://elections.walla.co.il/item/3225102.
- Raoul Wootlif, “Shaked Vows to Scrap Panel That Appoints Judges, as Right Takes on Supreme Court,” Times of Israel, March 19, 2019, https://www.timesofisrael.com/right-moves-against-supreme-court-as-shaked-presents-plan-for-legal-upheaval/.
- Makhlouf Miki Zohar, et al. “Proposed Amendment to Basic Law: Justice—Limiting the Right of Standing” (in Hebrew), the Knesset, https://fs.knesset.gov.il/20/law/20_lst_381879.docx. The 2017 bill, specifically focused on limiting petitions against West Bank settlements, is distinct from the 2011 bill, sponsored by different legislators also advancing a right-wing agenda—in that case, the explanation targeted left-wing NGOs that received foreign funding; the bill overlaps with the early drafts of the bill to restrict such NGOs, which would pass later, in 2016.
- Kremnitzer and Fuchs, “Basic Law: Legislation.”
- Shimon Cohen, “Hotovely: HCJ Legitimizing Traitors among Us” (in Hebrew), Arutz 7, October 20, 2014, https://www.inn.co.il/news/285736.
- Shirit Avitan Cohen, “Between Lawfare and Politicization: The Escalation in Yesha Reaches the Government” (in Hebrew), Makor Rishon, December 16, 2018, https://www.makorrishon.co.il/news/100199/.
- See for example: Akiva Bigman, “The Supreme Commander: HCJ and the War on Terror: The Supreme Court and the Restrictions on Israel’s War on Terror—the Full Story” (in Hebrew), Mida, October 22, 2015, https://mida.org.il/2015/10/22/המפקד-העליון-בגץ-והמלחמה-בטרור/. In the article, Bigman argues that the Court’s constraints on Palestinian home demolitions earned a cluster of homes later used in terror attacks the nickname “HCJ Homes.”
- Lyrics, The New Right, Music: Nir Gadasi, Arrangement, Nir Gadasi and Udi Simhon, “Special duet of Ayelet Shaked and Naftali Bennett, dedicated to the mothers of IDF soldiers,” April 6, 2019, https://www.youtube.com/watch?v=SeBdnbn4s6E
- Dahlia Scheindlin, “Netanyahu, Indicted, Takes Israel’s Institutions Down with Him,” The Century Foundation, December 4, 2019, https://tcf.org/content/commentary/netanyahu-indicted-takes-israels-institutions/; and Dahlia Scheindlin, “Netanyahu’s Response to His Indictment? Play the Victim and Weaken Israel Even More,” The Forward, November 21, 2019, https://forward.com/opinion/435293/netanyahus-response-to-being-indicted-project-his-corruption-onto-his/.
- Raoul Wootliff, “Netanyahu Said to Plan Bill to Override High Court, Safeguard His Immunity,” Times of Israel, May 13, 2019, https://www.timesofisrael.com/netanyahu-said-to-plan-bill-to-override-high-court-safeguard-his-immunity/.
- Dahlia Scheindlin, “Legal Bullying in the service of the Prime Minister,” +972 Magazine, December 1, 2017, https://www.972mag.com/legal-bullying-in-the-service-of-the-prime-minister/.
- Alexander Fulbright, “Tens of Thousands Turn Out in Tel Aviv for Anti-corruption ‘March of Shame,’” Times of Israel, December 2, 2017, https://www.timesofisrael.com/thousands-turn-out-in-tel-aviv-for-anti-corruption-march-of-shame/. The bill did pass into law, but only after the aspects that would have personally protected Netanyahu had been removed.
- These include: Makor Rishon, Arutz 7, Channel 20, in addition to those mentioned.
- Simcha Rothman, “The Supreme Court Sitting as the Thought Police” (in Hebrew), Mida, November 21, 2016, https://mida.org.il/2016/11/21/בית-המשפט-העליון-בשבתו-כמשטרת-מחשבות/.
- “Israeli Government Angered by Landmark Supreme Court Asylum Seeker Ruling,” i24 News, August 28, 2017, https://www.i24news.tv/en/news/israel/154114-170828-government-angered-by-landmark-supreme-court-asylum-seeker-ruling.
- Yair Altman and Efrat Porsher, “HCJ Is Overstepping Its Authority” (in Hebrew), Israel Hayom, August 31, 2017, https://www.israelhayom.co.il/article/501191.
- “May Golan,” the Knesset, https://knesset.gov.il/mk/eng/mk_eng.asp?mk_individual_id_t=1002.
- Shuki Segev, “The Attorney General Must Explain His Double Standard” (in Hebrew), Israel Hayom, October 29, 2019, https://www.israelhayom.co.il/opinion/702305.
- Itamar Fleischman, “The State Prosecutor’s Distress Call” (in Hebrew), Israel Yahom, October 29, 2019, https://www.israelhayom.co.il/opinion/702679.
- Amnon Lord, “If HCJ Rejects Netanyahu, an Investigation Is Needed” (in Hebrew), Israel Hayom, December 22, 2019, https://www.israelhayom.co.il/article/717881.
- Chaim Shain, “HCJ Presents: The Effort to Cut Us off from Our Jewish Symbols” (in Hebrew), Israel Hayom, May 1, 2020, https://www.israelhayom.co.il/opinion/756631.
- Chaim Shain, “Yehoshua Testimony Proves: The Bonfire of the Rule of Law Has Been Extinguished,” Israel Hayom, May 26, 2021, https://www.israelhayom.co.il/news/law/article/1483952.
- True as of this writing, May 2021. The left-wing independent media website +972 Magazine displays all donors for every year since its establishment as a fundraising NGO, updated quarterly through 2021. See “How We Are Funded,” +972 Magazine, https://www.972mag.com/how-we-are-funded/. (Disclosure: the author is among the founders of +972 and the first chair of the board; since 2018 she has no further position within the NGO and remains an occasional columnist). Other left-wing organizations routinely attacked by Kohelet and targeted by the NGO law Kohelet’s founder helped to draft include B’Tselem, which similarly publishes its donor and fundraising data prominently on its website: “Donors,” B’Tselem, https://www.btselem.org/about_btselem/donors; “Foreign Government Funding,” B’Tselem, https://www.btselem.org/hebrew/about_btselem/foreign_government_funding; “Public Council,” B’Tselem, https://www.btselem.org/about_btselem/public_council.
- Kohelet Policy Forum, https://en.kohelet.org.il/.
- Emmanuel Navon, “Israel’s High Court of Justice Undermines Democracy and Sovereignty,” Kohelet Policy Forum, October 5, 2014, https://en.kohelet.org.il/publication/israels-high-court-of-justice-undermines-democracy-and-sovereignty.
- The video is rife with manipulation and half-truths. For example, it rails against the Court for interpreting the 1992 Basic Law in a constitutional manner, although the laws were “passed in the 1990s with just 32 MKs [members of the Knesset]”—implying that the age of the laws makes them less authoritative, or that the laws ought to hold less force because they did not win a larger portion of Knesset members. The video asserts that the Court has been striking down laws endlessly, including a law targeting political boycott, divestment, and sanctions (BDS) activity. In reality, the High Court of Justice in fact upheld most of the BDS law, while ruling that a single clause was disproportionate. See “Are Israeli Supreme Court Justice Super-heroes,” published to YouTube by Kohelet, May 9, 2018, https://www.youtube.com/watch?v=Ixg6RiFmtzU&t=74s. On the High Court of Justice ruling, see Amir Fuchs, “How Many Laws Were Struck Down by the Supreme Court in Israel?,” Israel Democracy Institute, July 22, 2020 https://en.idi.org.il/articles/31874.
- “Zvi Hauser,” the Knesset, https://knesset.gov.il/mk/eng/mk_eng.asp?mk_individual_id_t=1017; “Zvi Hauser,” Kohelet Policy Forum, https://en.kohelet.org.il/author/zvi-hauser.
- Moshe Koppel, Eugene Kontorovich, “Why All the Outrage over Israel’s Nation-State Law?,” Kohelet Policy Forum (originally published in Mosaic), October 8, 2018, https://en.kohelet.org.il/publication/why-all-the-outrage-over-israels-nation-state-law.
- “Live: Conference on the Pompeo Doctrine,” Kohelet Policy Forum, January 7, 2020, https://en.kohelet.org.il/event/conference-on-the-pompeo-doctrine.
- Netanel Slyomovics, “The U.S. Billionaires Secretly Funding the Right-Wing Effort to Reshape Israel,” Haaretz, March 11, 2021, https://www.haaretz.com/israel-news/.premium.HIGHLIGHT.MAGAZINE-the-u-s-billionaires-secretly-funding-the-right-wing-effort-to-reshape-israel-1.9611994.
- Israel Law and Liberty Forum, https://lawforum.org.il/about-the-law-and-liberty-forum/?lang=en.
- Simcha Rothman, Supreme Rulers: How Israel Became a Legalocracy (Tel Aviv: Sela Meir Press, 2019, in Hebrew). Note that Rothman has stated that this is the English working title, though the book jacket lists “The Ruling Party of Bagatz: How Israel Became a Legalocracy.”
- Adam Gold, “Introduction,” in Simcha Rothman, The Party of the High Court: How Jurists Conquered the Israeli Government (Tel Aviv: Sella-Meir, 2019). The Hannibal directive refers to the practice of Israeli soldiers firing indiscriminately in the event that enemy forces attempt to kidnap a soldier, in order to avoid long-term hostage situations and negotiations—including at the risk of killing the hostage.,
- Zvi Sadan, “In the Land of Humpty Dumpy [sic],” Israel Today, December 15, 2019 https://www.israeltoday.co.il/read/in-the-land-of-humpty-dumpy/. The mystery and controversy surrounding Adam Gold’s identity (some believe him to represent more than one person) is convoluted and Facebook has declined to state reasons for the ban, but he has been accused of posting attacks on individual figures within the judiciary, of being a fictitious person (a team, rather than a genuine individual). One target of Gold’s attacks sued Facebook for libel. Racheli Malek Bodeh, “Inside Adam Gold’s Head,” Makor Rishon, November 18, 2018, https://www.makorrishon.co.il/magazine/92201/.
- “Projects,” Israel Independence Fund Website, http://www.fundisrael.org/Projects.
- Yair Kratman, “In the Current Age, Everyone Can Have an Influence,” interview with Yehuda Amrani, Arutz 7, December 24, 2019, https://www.inn.co.il/news/422166.
- Simona Weinglass, “Meet the Conservative Activists Who Want to Override the Supreme Court,” Times of Israel, June 5, 2019, https://www.timesofisrael.com/meet-the-conservative-activists-who-want-to-override-the-supreme-court/; and Orly Harari, “Yehuda Amrani Appointed as Spokesperson of the Benjamin Council,” Arutz 7, January 21, 2020, https://www.inn.co.il/news/424916.
- “Knesset Conference: Foreign Government Funding for NGO Political Activity in Israel,”
NGO Monitor, December 1, 2009, https://www.ngo-monitor.org/presentations/13//., and Slyomovics, 2021
- Shuki Sadeh, “The Right-Wing Think Tank That Quietly ‘Runs the Knesset,’” Haaretz, October 5, 2018, https://www.haaretz.com/israel-news/.premium-the-right-wing-think-tank-that-quietly-runs-the-knesset-1.6514722.
- Moshe Ifargen, “The Revolution That Wasn’t: Ayelet Shaked Is Fooling Everyone” (in Hebrew), Mida, January 27, 2019, https://mida.org.il/2019/01/27/המהפכה-שלא-הייתה-אילת-שקד-עובדת-על-כולכ/.
- Marissa Newsman, “Police Recommendations Law Passed after 2-Day Filibuster,” Times of Israel, December 28, 2017, https://www.timesofisrael.com/knesset-passes-police-recommendations-law-after-2-day-filibuster/.
- “Ceremony—Changing the Justice Minister,” published to Facebook by Gideon Saar, https://www.facebook.com/GideonSaarIL/videos/533631577819453/?__cft__=AZVC0b3vuWGex7-ucJW1Pcc0Yov_7Jb3CCOGzIwlYhF_7wKX3l_qGvy7N0wtXDXTtNXETeltFQZBZRXfDzZpepxaAZ12EC8MPP3u1tLZVmZJT6lvH1vAUZkiJL04zE0U09K2DRQnr8KELlzzhEAPM_9SpBafbHJBbtDdpqLQi0R5Kg&__tn__=%2CO-R
- Similar points about laying the groundwork, or practice for overthrowing authority—in the form of a coup—have been made in Zaynep Tufekci, “This Must Be Your First,” The Atlantic, December 7, 2021, https://www.theatlantic.com/ideas/archive/2020/12/trumps-farcical-inept-and-deadly-serious-coup-attempt/617309/. Masha Gessen develops a related argument at greater length in Surviving Autocracy (New York: Riverhead Books, 2020).
- “Israel Democracy Index 2020,” Israel Democracy Institute, https://en.idi.org.il/media/15562/the-israeli-democracy-index-2020-en.pdf, 63.
- The survey did not provide an individual name for the attorney general in its question.
- Israel Democracy Institute, “Israel Democracy Index 2020,” 56–57, 65.
- Yonah Jeremy Bob, “Israel’s Criminal Justice System under Threat of Attack,” Jerusalem Post, June 16, 2020, https://www.jpost.com/israel-news/israels-criminal-justice-system-under-threat-of-attack-631643.
- Yair Altman, “Within One Day: Another Supreme Court Justice Threatened” (in Hebrew), Israel Hayom, June 15, 2021, https://www.israelhayom.co.il/article/771087.