One of the distinctive aspects of the Netanyahu government’s proposed judicial overhaul is the enormity of its scope. It is not confined to one or two initiatives, but to a host of them on everything from how judges are selected, to how ministries treat the recommendations of their legal advisors, to how many judges have to sit on a panel that overturns legislation and what the scope of their reasoning can be. Amidst the cacophony of proposals and their differing versions, the initiative that has attracted the most attention and that has in some ways served as a rhetorical stand-in for the entire package is the Supreme Court override.
The idea behind a Supreme Court override is that the Knesset should have some mechanism for overturning a Supreme Court decision striking down Knesset legislation, and the threshold that the judicial overhaul’s architects have chosen is an absolute Knesset majority of 61. This would shift the balance between the Knesset and the judiciary in a fundamental way, as it would effectively mean that any law passed by the Knesset would be immune from the Supreme Court in light of coalition discipline and the fact that any Israeli government has to have a minimum of 61 votes in order to stay in power in the first place. There are precious few scenarios under which a government could not easily muster 61 votes to confirm a law that it had recently passed, and the proposal will thus eliminate judicial review over Knesset decisions. Compounding this is that Israel right now really only has two branches of government despite the rhetoric about maintaining checks and balances between the three, since a government is formed with a Knesset majority and thus the government (the executive branch) controls the Knesset (the legislative branch) completely. The dynamic of a Knesset majority being indistinguishable from the government means that giving that same Knesset majority the ability to ignore the Supreme Court’s directives turns Israel into a system with one supreme branch of government and with no checks or balances whatsoever, and the focus of many opponents of the judicial overhaul—both people and organizations—on the Supreme Court override reflects this.
Yet the government curiously did not start with the override part of its plan. Instead, the first two elements that it introduced, and that passed in a first reading on Monday, were the plan to change the composition of and rules for the judicial selection committee and the prohibition on the Supreme Court from having oversight over Basic Laws. Some may view this as a feint designed to draw attention to these elements, exhaust the overhaul’s opponents on this initial phase, and then make concessions on these parts in order to get through the override later. I think their strategy, however, is actually more transparent. The judicial selection committee and Basic Law elements of the overhaul came first because they are the most important. Once they are passed into law, the rest of the overhaul package becomes less important, and acts to serve as a redundancy failsafe. If there is to be a negotiation where the government pares back some of its plans, it is actually more likely to be on the override than these first elements, at which point Prime Minister Binyamin Netanyahu and his partners will crow about how reasonable and compromising they are being. It is because the judicial selection process and the Basic Law clause actually implement the revolution the Netanyahu government intends to carry out, and these two elements are key to understanding how it will do so.
Under the current arrangement, the judicial selection committee has nine people: three Supreme Court justices, two representatives of the Israel Bar Association, two members of the government, and two MKs. The proposal that passed a first reading maintains the nine-person committee, but changes it to a composition of three judges (the Supreme Court president and two retired lower-court judges picked by the justice minister and approved by the Supreme Court president), the justice minister and two other ministers, and three MKs (one of whom has to be from the opposition). In addition, whereas currently seven out of the nine committee members have to approve Supreme Court appointments, the new proposal reduces it to five out of nine. The spin regarding the new proposal is that it corrects the current situation in which the Supreme Court justices on the committee allegedly unilaterally select themselves since their bloc of three can veto any appointment they don’t like, and that it creates an equal balance of three representatives each from the government, the Knesset, and the judiciary. It is thus portrayed as being more democratic than the current arrangement and as implementing a balance of power between the three branches.
It is relatively easy to see why this is a specious deception. Right now, both the judiciary and the government have vetoes over the other; it is true that the justices can vote as a bloc preventing a majority of seven, but so can the government since the MKs on the committee do not have to come from the opposition and in fact often do not. This gives the government its own bloc of three that can also exercise a veto even if one of the MKs is from the opposition, and these twin vetoes have led to a situation where new justices who are appointed either reflect an actual consensus between the two branches, or deals are worked out where two are appointed at a time, one from each side. In lowering the threshold to appoint a new justice to five, the new bill creates an automatic veto for one side but not the other since the committee will always have three ministers and two MKs from the coalition, permanently cementing the situation it claims to be correcting but doing it for the government’s benefit. The government will be able to install any justice it wants every single time, turning the rest of the committee—including the opposition MK that is for the first time being included by mandate—into nothing but a powerless and irrelevant fig leaf in support of the fictitious notion of non-partisan judicial appointments. The bill moves Israel away from a system in which a consensus between the judges and the politicians over the Supreme Court’s composition is necessary to one in which the government will appoint every single justice without any check or oversight whatsoever.
The bill eliminating the Supreme Court’s ability to strike down Basic Laws is just as ingenious, and also similarly portrayed as correcting a current wrong. The argument is that Basic Laws are the equivalent of Israel’s constitution and therefore have a special status, and allowing the Supreme Court to strike down all or part of a Basic Law eliminates the ability of Israel’s democratically elected legislature to fulfill the voters’ will in favor of giving unelected judges absolute supremacy. On the face of it, this sounds eminently reasonable; there should be a higher standard for laws that are the equivalent of a constitution, and if the MKs voted into office by Israeli voters believe that an issue is so important that it requires a new Basic Law, the Supreme Court should not be able to do away with it at its whim.
The problem here is that the government’s proposal tackles one side of the coin, but not the other. If a Basic Law is the equivalent of a constitutional article, not only should it be treated with extreme—and perhaps inviolable—deference, but it should also require a high threshold to enact befitting its stature. Yet Basic Laws currently can be passed with a simple majority—in other words, if only 71 of the 120 MKs are sitting in the Knesset, they can pass a Basic Law with 36 votes—and literally anything can qualify as a Basic Law. What the bill that eliminates Supreme Court oversight of Basic Laws means in practice is that a coalition can call anything it wants a Basic Law, pass it without anything approaching a political or societal consensus or even supermajority, and it automatically becomes immune from the Supreme Court. If, for instance, the government wants to pass a Basic Law that Binyamin Netanyahu is prime minister for life, or that only Jews can take math and science classes, or that LGBTQ Israelis cannot use swimming pools, there is nothing to prevent that from happening under Israel’s current structure, but the government’s bill means that going forward, the Supreme Court would not be able to strike such laws down. The ability to slap a Basic Law label on anything and hence make it untouchable opens up the door to wholesale rights violations more than any other piece of the judicial overhaul that is being contemplated.
It is easy to focus on the 61-vote Supreme Court override proposal because it is easy to conceptualize and easy to understand why it is problematic. But the elements that the government started with are worse, and nobody should sleep on them. If they pass second and third readings and become law, a Supreme Court override may not even be necessary, and the misdirection ruse will have accomplished its objective.