Israel's Supreme Court's decision to reject legislative control of the judiciary ends, for now, simmering efforts by Benjamin Netanyahu's far-right government to shrink the courts, which had already sparked nine months of protests that only ended when Hamas attacked Israel Oct. 7
The protests had deeply divided Israel, but the ensuing war united it, and even pilots and reservists who had vowed to ignore military drills showed up immediately for combat before being called up.
If Monday's court decision tore that war envelope and once again highlighted the culture war at the heart of Israeli politics, Mr. Netanyahu and his government responded with a renewed appeal for wartime unity to try to downplay their loss. It was a different version of Netanyahu's argument against almost every critic of his performance and his policies – that these were all issues that needed to be discussed “after the war.”
And the court's decision, however important, is expected to have little or no impact on the conduct of the war itself.
“I don’t think the verdict will change anything,” said Amit Segal, a political columnist for the Israeli newspaper Yedioth Ahronoth, who reported on a leak of the verdict and is considered a close confidant of Mr. Netanyahu. Even before the war, he said: “Netanyahu did not have enough artillery, so to speak, to overwhelm the opponents.” Therefore, it helps him that this decision was made during the war, said Mr. Segal, because “he can see a lack of reaction justify, and after the war he will have more pressing matters,” such as his own political survival.
Israeli soldiers near the Gaza border on Monday. Credit…Violeta Santos Moura/Portal
But the judgment and the war are in some ways related, for both are crucial to Israel's future and future identity. Israel sees the war as existential – the best way to restore its reputation in the region as ineradicable and as a beacon of safety for Jews worldwide. The court decision goes to the heart of the debate over whether Israel will remain a thriving democracy, crucial to its special relationship with the West.
In a narrower sense, the court ruled that the judiciary must be able to check the ability of a simple majority in Israel's parliament, the Knesset, to change the country's basic laws and transform the democratic character of the state. It left open the possibility of fundamental changes to the law through a special vote with a larger majority.
Mr. Netanyahu and his allies have argued that the courts have too much power over elected lawmakers' legislation, are too liberal and are undemocratically elected.
Critics of Mr. Netanyahu, whose own trial on corruption charges is ongoing, said the court ruling saved the nature of a balanced democracy in a country with no constitution and no upper house. Some, like former Attorney General and former Supreme Court Justice Menachem Mazuz, called it “the most important ruling since the founding of the state.”
Until now, Mr. Mazuz said in a telephone interview, “the Knesset felt it could do whatever it wanted, stipulate that there are two suns during the day and four at night.” But the court had ruled “that there were restrictions on the sun.” “The authority of the Knesset means that it is impossible to harm the democratic or Jewish character of the state, that there are limitations.” This, he said, could later enable a different and better agreement “between the legal and the political system.”
But the ruling “also plays into existing culture war issues 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 only goal is to become stronger and more intimidating, and those who think the war is not really winnable in that regard is that we need something “It's kind of a diplomatic view that we can't continue to antagonize the rest of the world, the region and the United States, where we get our weapons from,” he said.
Protesters against judicial reform in Tel Aviv in September. Photo credit: Abir Sultan/EPA, via Shutterstock
The court ruling “has made even clearer this growing tension between those who want a plausible diplomatic solution and those who want to return to the pre-war status quo, the same people who wanted to invalidate the court,” Mr. Avishai said.
Mr. Netanyahu and his allies, he added, are pushing for a “Jewish state that rules over the entire Land of Israel,” including the annexation of large parts of the West Bank and even, some ministers suggest, the resettlement of Gaza, while “the court …”This was seen as an attempt to liberalize the country, which posed a challenge to the status quo and annexation, as well as to supporters of the “Land of Israel.”
For Dahlia Scheindlin, an Israeli analyst and pollster, “there is a direct connection 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.”
She said the war was “a major accelerator for a far-right government's most far-reaching plans, including annexation, possible expulsion and full, formal Jewish sovereignty over the entire country and the people living in it.”
Mr Netanyahu is expected to use the ruling to continue trying to consolidate his slim majority in parliament, built on his coalition with religious nationalists and the far right. Mr. Netanyahu has already refused to condemn some of his allies' harshest statements about the annexation of the West Bank and resettlement in Gaza. He has presented himself as the crucial bulwark against criticism from the rest of the world, including the United States, and the entire idea favored by President Biden of a future Gaza Strip governed by a “revitalized” Palestinian Authority.
Smoke over Khan Yunis in the southern Gaza Strip on Tuesday. Source: Agence France-Presse – Getty Images
In a recent example, Mr. Netanyahu has backed his far-right Finance Minister Bezalel Smotrich, who rejected Mr. Biden's demand that Israel transfer to the Palestinian Authority the portion of Palestinian tax money it collects on behalf of its employees in Gaza and hinted announced that he would resign from the government.
“Bibi is still their champion,” Mr. Avishai said.
Mr. Netanyahu also recently made it clear at a news conference on Saturday that he has no intention of resigning, even after the war and even if his Likud party sinks in the opinion polls. A Channel 13 poll found that elections would now give Likud just 16 seats and, together with its current coalition parties, just 45 seats in the 120-seat Knesset, compared to 38 seats for Netanyahu's rival Benny Gantz and 71 seats for opposition parties.
Ms. Scheindlin, the pollster, said Likud's coordinated call for wartime unity after the court ruling was politically astute because even the party's supporters did not care as much about judicial reform as they did about other issues, including the outcome of the war. However, Mr. Segal said the ruling could help boost Likud's support as many of the party's voters would be angered by it.
Still, the call for unity and the accusation that the court ruling was damaging the war effort were “pretty cynical,” Ms. Scheindlin said, “because it was the justice reform bill that actually tore the country apart.”
Mr. Netanyahu's Likud party said that “the court's decision contradicts the people's desire for unity, especially in times of war,” while Itamar Ben Gvir, the national security minister, said: “At a time when our soldiers “The Supreme Court justices decided to weaken the people of Israel in Gaza every day to weaken their spirit.”
The subtext, Ms. Scheindlin said, was 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.
Natan Odenheimer contributed reporting from Jerusalem.