If you keep up with the news, you probably know that the current ultra-right government of Benjamin Netanyahu (aka Bibi) is trying to turn Israel into a fascist state by eliminating the independence of the Israeli Supreme Court. The opposition has delivered large crowds, huge protests, a threatened (rather promised) general strike, and even some resignations among the Israeli military’s famed reserve forces. Democracy hangs in the balance, as Bibi presses forward.
Of course, all that is a caricature of what’s really happening, which is far deeper and actually more profound. Democracy has nothing to do with it, as I will explain. This is a debate about the what Israel is and what it should be, one that has been simmering since it was born in conflict in 1948.
Israel has a fairly pure representative democracy. That is, it has only one legislature (the Knesset), designed to form governments by either a straight majority vote of the people or a coalition-building political process. No one is questioning that. Israel also has a Supreme Court which is independent of the elected government. Its members are chosen by a committee of nine: four representing the sitting government (two Knesset, two from the Prime Minister’s cabinet) and five lawyers (three sitting Supreme Court Justices and two members of the Israeli Bar Association) It takes seven votes to select a nominee, who then must be approved by Israel’s ceremonial President. In practice, Israel’s highest legal body selects itself.
The Israeli Supreme Court staked out its authority to review government actions and policies much like the US Supreme Court did in Marbury v. Madison. One interesting difference is the Israeli Supreme Court decided that one criterion it could use to overrule the government was “reasonableness.” While that sounds reasonable, try defining it in a consistent, coherent way. It didn’t prove to be an immediate problem until the last few years, when the court overturned policies and even prohibited the government from choosing a specific cabinet minister. In any event, the Israeli Supreme Court acted as a check on the government, and some would say the only check on it.
Remember now that the Israeli Knesset is a democratic body, both in how it is selected and how it acts. And the court is a check on it. Got it? Which is why this is not about democracy.
Lately, the Knesset has had an unstable series of short-term governments, as the Israeli electorate is evenly divided between liberal/progressive and conservative factions. As in most parliamentary systems, there are numerous small, often-extreme parties which can play the role of king-maker (or more appropriately, Prime Minister-maker). Such is the one right now which has Bibi back in the chair with extreme right-wing or religiously conservative partners.
So is this all about politics, not democracy? No. For years, politicians on both sides have indicated the Supreme Court needed to be reformed, as both feared it was becoming too powerful , too insulated (as it chooses itself) and more importantly, too arbitrary. Parliamentary governments are inherently unstable, and they become almost impossible when an outside body (i.e., the court) can rule who can be a cabinet minister. Liberals/Progressives switched to opposing any change now because of who is in the ruling government: if the court’s ability to restrain the government is limited right now, they fear the ultra-conservatives will run wild. They may not be wrong, and they are certainly correct to fear such an outcome. But all that points to the real issue, which is neither democracy nor politics: it is the Israeli polity.
The modern state of Israel has always represented an uneasy alliance between two competing visions: a larger group of secular/progressive Jews (Zionists) looking for a haven from a hostile outside world, one where they can enact their idea of a peaceful, communitarian paradise, and a small set of religious Jews (Haredim) who seek to return to being God’s Chosen People, and only that. In-between those two groups were pragmatic Jews (smaller than the left, larger than the ultra-orthodox) who might not want to chant Torah all day, but weren’t convinced by the promises of socialism. For decades, these groups set aside their differences to deal with the unrelenting hostility of Israel’s Arab neighbors. It doesn’t make sense to argue about whether busses can run on Shabbos when there’s an Arab army marching on the town!
Here’s where demographics plays a card. The ultra-orthodox, correctly called Haredim, were content to get special favors from the government for a long time. They were a small group, and as long as the government left them alone, they agreed to merely complain about the rest of Israel not abiding by Halakha (Jewish religious law). The government agreed to exempt them from military service, allowed them to run their own schools, and even granted them extra social benefits. The Haredim and their way of life were subsidized by the Israeli government, whether conservative or liberal.
A funny thing happened. Haredi families average six children and holding steady. Secular Jewish families (whether politically conservative of liberal) average two children and falling. Government data show 1/4 of first graders in Israel are Haredim. So the Haredim have risen to almost thirteen percent of Israel’s population, and parties representing them have gained an important number of seats in the Knesset. And since they are continuing to grow, they are on target to reach almost forty percent of the population by mid-century.
As they have grown, they have protected the benefits they previously secured from the government, but have begun to demand more implementation of their views on social issues: separate spaces in public for men and women, stricter Shabbos observance, restrictions on advertising, more funding for and support of their way of life. This has predictably led to conflict, as the liberal and progressive Israelis see the Haredim as people exempt from the military, learning nothing but Torah in their schools, and coddled by the government. The Haredim respond that their faith is what is protecting Israel. As one young Haredi man said, ‘if everyone was learning Torah and praying with us, God would protect us.’
Why is this playing out over the Israeli Supreme Court? Bibi’s government is willing to grant the Haredim greater rights and privileges. Yet of the court can simply rule such things as “unreasonable,” it can stop that process. The battle is really over what Israel is: a secular democracy or a more religiously-inclined one.
Here’s the even more interesting part. The Biden administration is conducting some high-level negotiations (right now) with Israel and Saudi Arabia. The Trump administration brokered the Abraham accords, which normalized relations between Israel, the United Arab Emirates (UAE) and Bahrain. That was little noticed but important, because it represented the first major normalization among Arab states not directly in contact with Israel. The contact states like Egypt and Jordan came to the table long ago; Syria (and the Syrian puppet government in Lebanon) never will. Most other Arab states held back, waiting to see what the Saudi monarchy did.
The Saudis are looking for a NATO-style commitment from the US for protection (not the backroom handshake deal which has been in effect since FDR) and a US-provided civil nuclear program. Bibi wants Saudi normalization as a feather in his cap, and to establish the basis for an Israeli-Saudi anti-Iranian coalition. The Biden Administration wants to reassert US leadership in the Middle East, push out the Russians and Chinese, and draw a line in the sand with Iran.
Crown Prince Mohammed bin Salman, aka MBS, the man President Biden called a pariah (maybe) and a murderer (certainly), is the power behind the throne (literally) in Saudi Arabia and is leading the Saudi side of the negotiations. The Times and Post have started briefly commenting on the talks, which were secret until now. Saudi King Salman (MBS’ father) has apparently insisted that Israel make some offer to the Palestinians as part of the process, and specifically that promising not to annex the West Bank is insufficient. The fact that such things have leaked suggests to me the talks are far along, and neither Bibi nor MBS is willing to let the issue of Palestine derail the agreement.
What’s this got to do with the Israeli Supreme Court? Bibi is dependent upon the Haredi and ultra-conservative parties because he has a narrow majority in the Knesset. The Biden administration has reportedly told Netanyahu not to go forward with changes to the court’s rules and composition without first securing an agreement with which the majority of Israelis agree. How to square the circle? What if Netanyahu secures a grand deal with Saudi Arabia, gets increased American aid, throws the Palestinians a bone (it wouldn’t need to be much, since there is no reliable partner to negotiate with right now), and offers to bring some liberal/labor parties into the government to negotiate a better set of court reforms, while letting the Haredi and ultra-conservatives choose to stay or go?
It’s a high-impact, low probability scenario, I admit. The shoals of Middle Eastern politics are filled with the hopeful shipwrecks of American and European peace plans, and this may be one more. But the US Secretary of State isn’t shuttling around the Middle East (repeatedly) to sample falafel. Stay tuned!
Thanks. Excellent background.