On the battlefield and in the courts, a reckoning for Israel’s future
Stakes are high, and connected, in both arenas
The decision by the Israeli Supreme Court to reject legislative control over the judiciary ends for now the languishing effort by the farright government of Benjamin Netanyahu to diminish the courts, which had sparked nine months of protests that only ended when Hamas attacked Israel on Oct. 7.
The protests had deeply divided Israel, but the subsequent war united it, with even pilots and reservists who had vowed to ignore military exercises immediately showing up to fight before they were called.
If the court’s decision Monday ripped off this wartime poultice, displaying anew the cultural divide at the heart of Israeli politics, Netanyahu and his government responded by appealing again to wartime unity to try to downplay their loss. It was another version of Netanyahu’s argument against just about every critic of his performance and his policies — that these are all subjects to be discussed “after the war.”
And the ruling of the court, however important, is expected to have little or no impact on the conduct of the war itself.
“I don’t think the ruling will change anything,” said Amit Segal, a columnist for the Israeli newspaper Yedioth Ahronoth who reported a leak of the ruling and is considered close to Netanyahu. Even before the war, he said, “Netanyahu did not have enough artillery, so to speak, to overwhelm the opponents.” So it helps him that this ruling has arrived during war, Segal said, because “he can justify a lack of reaction, and after the war he will have more pressing matters,” like his own political survival.
But the court and the war are connected in a way, because they are both crucial to Israel’s future and future identity. Israel regards the war as existential — the best way to restore its reputation in the region as ineradicable and as a beacon of security for Jews worldwide. The court decision goes to the heart of the debate over whether Israel will remain a thriving democracy, which is vital to its special relationship with the West.
Seen narrowly, the court has ruled that the judiciary must be able to provide a check on the ability of a simple majority in Israel’s parliament, the Knesset, to change the country’s fundamental laws and to alter the democratic character of the state. It left open the possibility of fundamental legal changes by a special vote with a larger majority.
Netanyahu and his allies have argued the courts have too much power over legislation by elected lawmakers, are too liberal, and are chosen undemocratically.
The court ruling was seen by critics of Netanyahu, whose own trial on corruption charges is ongoing, as having saved the nature of a balanced democracy in a country with no constitution and no upper house. Some, including former attorney general and former Supreme Court judge Menachem Mazuz, called it “the most important ruling since the foundation of the state.”
Until now, Mazuz said in a telephone interview, “the Knesset had the feeling that they could do whatever they wanted, determine that there are two suns during the day and four at night.” But the court had ruled “that there are limitations on the Knesset’s authority, that it is impossible to harm the democratic or Jewish character of the state, that there are limitations.” That, he said, could allow a different and improved agreement down the road “between the legal and political systems.”
But the ruling also “plays into existing issues of cultural war in Israel,” said Bernard Avishai, an Israeli American analyst in Jerusalem. “Increasingly there is a divide between people who think the war is winnable and — like Netanyahu — that Israel’s sole objective is to get stronger and more intimidating, and those who think that the war is not really winnable in those terms, that we need some kind of diplomatic vista, that we can’t continue to alienate the rest of the world, the region and the United States, where we get our weapons,” he said.
The court ruling “has made more vivid this growing tension between those who want a plausible diplomatic solution and those who want to go back to the status quo before the war, who are the same people who wanted to defang the court,” Avishai said.
Netanyahu and his allies, he added, are pushing for a “Jewish state ruling over the whole land of Israel,” including annexing large parts of the West Bank and even, as some ministers suggest, resettling the Gaza Strip, while “the court was seen as trying to liberalize the country, which was a challenge to the status quo and the annexation and ‘Land of Israel’ supporters.”
For Dahlia Scheindlin, an Israeli analyst and pollster, “there is a direct link between the outcome of this war and the nature of Israel, what kind of state it will be and whether it can continue to claim to be democratic.”
The war, she said, “has been a great accelerator for the most far-reaching designs of a farright government, including the annexation, possible expulsion and complete, formal Jewish sovereignty over all of the land and the people within it.”
Netanyahu is expected to use the ruling to continue to try to shore up his thin majority in parliament, built on his coalition with religious nationalists and the far right. He has refused to condemn some of the harshest statements by his allies about annexing the West Bank and resettling Gaza. He has presented himself as the vital bulwark against the criticisms of the rest of the world, including the United States, and the whole idea, favored by President Biden, of a future Gaza ruled by a “revitalized” Palestinian Authority.
Netanyahu’s Likud party said that “the court’s decision contradicts the people’s desire for unity, particularly at a time of war,” while Itamar Ben Gvir, the national security minister, said: “At a time when our soldiers are giving their lives for the people of Israel in Gaza every day, the judges of the high court decided to weaken their spirit.”
The subtext, Scheindlin said, is that “nothing we don’t like should happen until the war is over, and the war will never be over,” at least not for a very long time.