As Israel emerges from the trauma of October 7, there is an understandable desire to set aside the bitter disputes that divided us in 2023. Yet paradoxically, the need to reform Israel’s judicial system has only grown more urgent.
The fundamental problem remains: Israel’s judiciary wields power far beyond what exists in any other democracy, with virtually no checks or balances on the court. In other democracies, courts can only hear cases brought by those directly affected by government decisions, not by any interested party. Political matters like foreign policy and military decisions are considered non-justiciable. Courts can only strike down laws that violate specific constitutional provisions, not ad hoc principles that judges conjure as they go. And judges on constitutional courts are not effectively chosen by sitting judges. Finally, rulings by the attorney general are regarded as advisory, not binding on the government. Israel lacks all these standard democratic constraints on judicial power.
As the nation fights for its survival, the judiciary continues to expand its reach. Incredibly, even as the war raged, the Supreme Court struck down a provision in a Basic Law, Israel’s equivalent of a constitutional provision. The court has also intervened in security matters, such as the provision of humanitarian aid in Gaza and prison conditions in which Hamas terrorists were held. In addition, the attorney general has blocked multiple senior government appointments by declaring them “unreasonable” – not illegal, just not to her liking.
At the same time, the court has rammed through the appointment of a new chief justice, Isaac Amit, bypassing established procedures – demonstrating that its demands for proper process apply only to others, not to itself. The judicial bureaucracy regularly invokes the need for careful deliberation to block government actions, while moving at lightning speed when it suits its interests.
This is not about Right versus Left or religious versus secular. It’s about maintaining basic democratic principles where elected officials can govern while being subject to appropriate judicial review. No one wants unlimited government power. But neither should we accept unlimited judicial power.
The recent Levin-Sa'ar compromise proposal on judicial appointments, while imperfect, could serve as a starting point. The proposal would replace bar association representatives on the Judicial Selection Committee with lawyers chosen by the coalition and opposition, requiring support from both sides for new appointments and would limit the extent to which the Supreme Court justices on the committee could exercise a veto over appointments. Though the proposal has serious technical flaws, particularly in giving disproportionate power even to a minuscule opposition that might represent narrow sectoral interests, it demonstrates that reasonable compromise is possible.
A broader reform should include the following:
First, clearer limits on when courts can invalidate government decisions for “unreasonableness.” This doctrine has been stretched far beyond its original meaning to allow courts to second-guess virtually any political decision they dislike.
Second, reform of the attorney general’s role to clarify that while his or her legal advice should be considered, it cannot bind the government, and the government should be able to choose its own representation in court.
Third, established procedures for passing and amending Basic Laws that give them appropriate constitutional status while preventing their abuse.
Every effort must be made to avoid the contentious battles of last year, and timing must be carefully planned to minimize internal strife when the nation cannot afford it. But, while broad consensus for reform would be ideal, we cannot give its most extreme opponents a permanent veto, especially while the judicial bureaucracy shows no sign of self-restraint or interest in compromise. The lesson from last year’s reform attempt is not that we need universal agreement – an impossible standard that would perpetuate the status quo indefinitely. Rather, we need reforms that make sense regardless of who holds power – what philosophers call choosing from “behind the veil of ignorance.” Such reforms can gain broad public support, even if those who benefit from the current system resist change.
The war has created both necessity and opportunity. The necessity comes from our need for effective governance to meet unprecedented challenges. The opportunity comes from the spirit of unity that has emerged since October 7. But this spirit must go both ways. If the judiciary continues its unrestrained expansion of power even in wartime, waiting for a perfect moment risks letting the perfect be the enemy of the good.
The path forward is clear: well-timed and measured reform that brings Israel’s judicial system closer to accepted democratic norms while maintaining appropriate checks and balances. The Levin-Sa'ar proposal shows that compromise is possible. We should build on it to create a system that works for all Israelis, protecting both democratic governance and individual rights.■
Prof. Moshe Koppel is founding chairman of the Kohelet Policy Forum, a conservative pro-liberty think tank based in Jerusalem.