We have recently been occupied by weighty matters: The Military Advocate General’s phone, the Attorney General’s conflicts of interest, the Justice’s home addition. But it is crucial to look at the forest, not just the trees.

There is no doubt that the prestige that once graced the judiciary has faded of late. My point is not to settle scores but to offer an institutional lesson, because the judicial system belongs to us all, and the State of Israel needs a functioning judiciary that enjoys broad public trust.

We built a structure here that invites malfunction, and the malfunctions duly arrived. Instead of standing in shock, we must take the opportunity to discuss the rules of the game – not who won the latest round, but how to design a system that remains fair, efficient, and committed to the public even during times of deep disagreement.

The argument over the judicial reform was, in my view, an attempt to restore checks and balances to the system. I supported the proposal because any unregulated and concentrated power is dangerous; there is no fundamental difference between a government accumulating such power or a judiciary doing so.

In our case, the Court’s authority expanded over the years far beyond its accepted and appropriate scope. The Attorney General and the state prosecution apparatus—both civil and military—accumulated enormous power, without public debate or direct accountability. Opponents of the reform claimed that if we restricted this power, the government and Knesset would be left to “run riot”.

The subtext was well understood: the judicial establishment is culturally identified with one camp; the elected branches are often controlled by another. This assumption made it easy to arrive at a “practical” conclusion: to avoid catastrophe, power must be kept in the “right hands”.

Herein lies the central conceptual error. Good rules are formulated “behind the veil of ignorance”: without knowing who will hold the gavel tomorrow, who will sit in the coalition and who in the opposition. Rules designed to achieve specific political outcomes are not public rules, but mechanisms for preserving power. This past year has proven just how dangerous it is to build a system based on the premise that a specific camp at the helm of specific institutions will remain righteous forever.

I admit – I was somewhat naïve myself. I thought a new legal clause, and certainly a new Basic Law, would improve reality. But mere text cannot move an entrenched institution. The system knows how to absorb reforms: to interpret them differently, delay, avoid enforcement, or simply ignore them. The true struggle is not over the drafting, but over who decides what is binding. And those who believe they are “the public” do not hesitate to shove elected representatives aside.

What followed is well known. In its decision on the Reasonableness Standard, the Court determined that it is authorized to overturn even Basic Law clauses. The message to the public was clear: no text supersedes the judges’ authority; in fact, the judges are subject to no institutional or legal constraint whatsoever.

Astonishingly, the current Attorney General managed to outdo even the High Court of Justice (HCJ) in activism. She ruled the government’s position so unreasonable that she could not represent it on a series of issues, while the Court – far from being suspected of worshipping the current government – determined the government’s position to be not only reasonable but correct.

Now, the Military Advocate General affair – and indeed the conduct of the entire Military Prosecution brass – is shattering the image of “neutral gatekeepers” before our very eyes. This does not mean that one side is naturally “good” and the other “bad”. It means that when rules are tailored to preserve power in specific hands, those in power will eventually begin to cut corners, massage evidence, and persuade the public it is for their own good – all in the name of “saving democracy”.

It is a human temptation, not a one-time glitch. This is precisely why a serious system does not assume that those holding power will remain righteous forever; it incorporates checks and transparency measures to restrain anyone holding authority, regardless of their views.

For years I thought politics was primarily the art of articulation: if we just formulate the text correctly, we win. But I came to understand that text is merely raw material. Power flows to those who believe they have the public behind them and are willing to act on that confidence.

For many years, this confidence resided mainly with the judicial elites – justifiably or not. They knew that the media, academia, and the social codes of “who matters” were on their side. They had no difficulty dictating to governments, because they believed they represented the public conscience, or at least the public power.

Recent times have marked a shift: that confidence has begun to migrate – from the bureaucrats to elected officials, from those who thought the state was “theirs” by virtue of seniority and internal norms, to those who won a mandate from the voters and do not ask for permission to exercise it.

This is the heart of the matter: recent affairs did not merely reveal professional and moral lapses; they granted elected officials the public legitimacy to stand up to the judicial bureaucracy. When the mask slipped and institutional interests were exposed, public consensus grew regarding the need for checks and transparency for the judiciary. And with it, confidence grew in the authority and ability of the government – any government! – to govern.

This shift is generational as well as institutional. New generations are less inclined to accept as a matter of course the unspoken hierarchy that “professionals decide” and “the public doesn’t understand”. They demand a decision-making process based on clear rules: transparency in key decisions; reasoning even when deciding not to act; an appeal process for advisors’ determinations; and judicial boundaries that restore the Court to its proper function – settling disputes – rather than becoming a supreme policy committee.

All this does not amount to weakening the “gatekeepers,” but to strengthening public trust in them. And it is precisely here that a vision for the future can begin. Not a vision of one camp’s victory, but of a public dialogue that begins with a simple question: Are we willing to live with these rules the day we are no longer in power?

“The veil of ignorance” isn’t just an academic slogan; it is democracy’s insurance policy. Anyone seeking rules tailored to their own camp’s measurements may win a short-term victory, but will lose the public credit without which there is no proper governance. Those who seek fair rules for all seasons, regardless of who is in power, will build a more stable home for us all.

At this point in time, the choice is clear. We can continue to live under the rule of unpublished norms set by a small, unelected group; or we can restore balance, so that the law once again serves the entire public, regardless of who holds the reins.

I don’t pretend to be neutral regarding the outcome; none of us has that privilege. But I do suggest we formulate procedures we would be willing to accept should we find ourselves on the losing side tomorrow. That is the test of institutional seriousness, and the only way to restore eroded trust.

After the Court’s decision on the Military Advocate General investigation, in which the Justices rejected the Attorney General’s position, one of the left-wing party leaders criticized the HCJ for “choosing to stick to the dry letter of the law”. The most basic common denominator we should all demand is adherence to the letter of the law.

If we are wise enough to do so, perhaps we can return to arguments that befit a mature public unafraid of its choices. We will return to a discussion based on the understanding that democracy is defined not by rage and momentary interests, but by rules that hold fast even when they are inconvenient. Better days are not a utopia; they begin with the modest decision to construct fair rules—for us all, and for the generations to come.

(First appeared in Hebrew in Makor Rishon)