Israel’s battle over judicial reform exposed deep societal fault lines – then war changed everything: A personal view from the center of the storm.

The usually manageable tension between judicial oversight and legislative authority in Israel’s democracy boiled over in 2023 when the government proposed reforms to limit the Supreme Court’s powers, sparking unprecedented protests and revealing deep societal divisions.

I was caught in the thick of these battles as head of the Kohelet Policy Forum, a pro-liberty Zionist think tank in Jerusalem that has been publishing research on a variety of policy issues for over a decade, including on the checks and balances among the branches of government and the need for judicial reform. We aren’t legislators and we don’t determine government policy, but our research has had some influence and I was involved in discussions regarding reform in a wide variety of forums.

As the chances of the proposed reforms passing dwindled – and as Kohelet was under relentless attack by opponents of judicial reform – I decided to write an essay outlining my understanding of what happened. I finished the essay on October 6.

On October 7, the world turned upside down and I forgot about the essay. The whole fight over the reform felt to me in retrospect like a spat between a husband and wife who are then hit with a major family health crisis. The spat isn’t resolved, but it just seems not nearly as important as it felt at the time.

Months later, in January 2024, I looked again at the essay. There were plenty of things I’d have written differently, but I thought it would be more enlightening if I’d just leave the essay more or less as it was (or more precisely not to make any edits that used information only available after October 6) and add a postscript with reflections on how our circumstances and my thinking have changed in the interim.

Of course, I’m aware that Israel still has bigger and more pressing challenges than judicial reform. But I’m convinced that an understanding of the deeper reasons for the failure of judicial reform will shed light on broader systemic problems that we will have to grapple with after the war. And it is impossible to understand what is happening now without understanding what really happened during the battles over judicial reform.

October 6, 2023

Israelis have been embroiled in a rancorous argument about judicial reform. In this essay, I will present the necessary background for understanding what the fight is all about.

Israel’s system of government, unlike many Western democracies, lacks a formal constitution. Instead, it operates under a series of Basic Laws that serve as its constitutional framework. The country has a parliamentary democracy where coalition governments are the norm, and the Supreme Court has historically played an expansive role in reviewing both legislation and administrative decisions.

In January 2023, Israel’s newly formed right-wing coalition government proposed sweeping changes to limit judicial power and alter how judges are selected. These proposals sparked huge protests, with opponents arguing they would damage democracy by removing crucial checks on government power, while supporters maintained they would restore proper democratic balance by curbing excessive judicial activism. This clash exposed deep divisions in Israeli society about the proper role of courts and elected officials in a Jewish democratic state.

Before diving into the details of these arcane matters, it’s important to acknowledge that any analysis of Israel’s political institutions must be grounded in a clear understanding of what the state is meant to achieve. My approach to Israeli public policy is informed by what I call the “pragmatic vision” of what a Jewish nation-state ought to be. Roughly speaking, according to this vision, apart from providing what all states provide for their citizens – national defense, law enforcement, a justice system, infrastructure and so on – Israel must be a country where Jews feel sufficiently at home that they can develop their own culture and traditions from the bottom up without the defensiveness that accompanies the threat of persecution or assimilation. This entails two things: the basic elements of a national home – language, calendar, symbols, immigration policies – and liberty for individuals and communities to maintain and develop their traditions as they see fit, without state coercion.

I’m convinced that this vision for Israel – I’ll call it the “pragmatic vision” – is shared by the vast majority of Israelis on both sides of the argument about judicial reform. I emphasize it here because it is the common ground around which a resolution can be found.

With that in mind, let’s dig right into the story of Israel’s judicial system. It is a story driven by thinly-veiled fears and resentments involving religion, secularism and the thirst for power, but I’ll save all that for later. For now, I’ll stick to the less speculative, and more compelling, legal arguments. But don’t worry, we’ll get to the juicy stuff soon enough.

The Rise of Juristocracy

In 1978, Aharon Barak, a young law professor then serving as Attorney General, was appointed to the Supreme Court. Over the next 30 years, Barak systematically expanded the Court’s power at the expense of the other branches of government. Here is how he did it.

In almost every democracy, the executive and legislature are checked by some form of judicial review – sometimes very limited and sometimes more expansive. But what checks are there on the judiciary?

First, in a democracy, not every issue can be adjudicated by the court; there are limits on who can petition the court and regarding which matters. A petition can be brought to the court against an administrative decision by a government agency only by someone who has been personally affected by that decision, either as an individual or as a member of a defined group; anybody else lacks “standing” before the court. Also, as in the American “political question doctrine”, political matters that are within the defined authority of the other branches of government – foreign policy, declaring war and signing peace treaties, for example – can’t be adjudicated by the court; such cases, as well as a long list of others, are not “justiciable”.

Second, the court can only rule against the other branches on the basis of the law, as determined by the legislature. Thus, a law can be struck down by the court only if it contradicts a law that is higher in the legal hierarchy; typically, if it is unconstitutional. Similarly, the court can accept a petition against an administrative decision by a state agency only if the decision violates a specified legal requirement; for example, if it was done without authority, or not according to prescribed procedures, or if it is discriminatory or done for ulterior motives. In many countries, such grounds include what is called “Wednesbury unreasonableness”, a legal doctrine allowing courts to overturn a decision so irrational that no rational person could conceivably have made it.

Barak and his followers simply eliminated every one of these limitations on the court’s power in Israel.

In 1986, Barak ruled that “public petitioners”, even those without a specified personal grievance, have standing before the court. In that same ruling, he declared that “everything is justiciable – including matters of war and peace”. The elimination of these two limitations on its reach, allowed the court to insinuate itself into every conceivable public policy issue.

With regard to the tools at the court’s disposal, already in 1981, Barak ruled that the prevailing Wednesbury standard for unreasonableness no longer held and that the court would henceforth strike down any administrative decision in which it felt that not all relevant factors had been given precisely the right weight. In plain English, the court would substitute its own judgment for the government’s judgment at its discretion – and indeed it now frequently does so, for example in multiple cases in which it overruled the Interior Minister’s judgment regarding entry or residency of non-citizens hostile to Israel.

Next, we come to the matter of striking down legislation. Israel doesn’t have a constitution, but a small subset of its laws are labelled “Basic Laws” – fundamental laws that serve as Israel’s quasi-constitutional framework. In 1995, Barak issued a landmark ruling establishing that these Basic Laws had constitutional status and that an ordinary statute could be struck down if the court deemed it in conflict with a Basic Law. This was controversial at the time, but has since become entrenched.

In 2019, the court agreed to hear a petition against the constitutionality of a Basic Law. The problem is that the very notion of ruling on the validity of a Basic Law is incoherent because there is nothing in the legal hierarchy above Basic Laws; it literally places the court above the law. In attempting to solve the incoherence problem, the court and its supporters conjured various principles that might be above the Basic Laws in Israel’s legal hierarchy, including “foundational principles of democracy” and, more recently, Israel’s Declaration of Independence, which looks nothing like a legal document and was never intended as such.

That the judges have in fact placed themselves above the law has become completely transparent now that they are hearing petitions against an amendment (disallowing the use of “unreasonableness” as grounds for disqualifying a cabinet decision) to the law that defines their own authority.

Finally, there is an issue that can’t be pinned on one of Aharon Barak’s revolutions. Judges in Israel are appointed by a committee of nine, three of whom are sitting Supreme Court Justices and two of whom are representatives of the Bar Association (and who generally align with the Justices). The problem with this, in principle, is that if a strong majority of Justices were to believe, say, that the moon was made of green cheese, there would be a built-in bias towards selecting new appointees for that belief. This kind of homogeneity is always a bad idea.

Juristocracy in Action

Let’s consider now how the Court uses the power it has taken for itself to ensure that Israel’s unelected institutions stay in the hands of the kinds of people of whom the Court approves.

There are two main applications of the expanded “unreasonableness” criterion invented by Barak. First, the court has ruled that it would be unreasonable for a lame-duck government to make any decisions with long-term consequences – unless the court concurs that the matter is urgent. Thus, whenever there is a lame-duck government – not an uncommon occurrence here – the court effectively controls the executive branch. A government poorly aligned with the Court’s agenda wants to appoint a commission to investigate police corruption months before an election? Not urgent. An aligned government wants to cede territorial waters to a hostile neighbor days before an election? Urgent. And so it goes.

Second, and more crucially for our point here, the court is able to control the entire government by invalidating as “unreasonable” any appointments that do not find favor in its eyes. Thus, the justice system has succeeded in derailing appointments of the Army’s Chief of Staff, the Chief of Police (twice), Head of the Tax Authority, Head of Israel’s Land Authority, Head of the Prison Authority, several Directors General of government ministries and more. None of these appointments was illegal in any way.

To be sure, technically the court didn’t actually have to issue a formal ruling on any of the above cases. That’s because of yet another of Barak’s legal innovations that allows the court to use proxies to execute all the above interventions on its behalf, without the court getting its own hands dirty. In a single 1993 ruling, Barak declared both that, as the government’s representation before the court, the Attorney General is free – in fact, encouraged – to argue against the government’s position before the court and that, as the government’s legal advisor, the Attorney General can instruct the government on what it can and cannot do – and such instructions are binding.

None of this is theoretical. On multiple occasions, we have seen government ministers, including the Prime Minister, sitting helplessly in court as litigators on both sides argued against their position – including in cases when the government’s position was easily defensible. This includes, among others, the subject of Barak’s original 1993 ruling that forced PM Yitzhak Rabin to fire ministers in his cabinet who were under criminal investigation and a 2003 case against Minister of Industry Ehud Olmert’s attempt to have state-owned agricultural land under lease to kibbutzim rezoned to permit residential development. Such instances have become commonplace.

All this reaches its apotheosis when the court-invented power of the Attorney General to impose binding legal opinions on the government is applied in conjunction with the court-invented extension of illegality to a vague reasonableness standard. Here’s a telling example. In 2019, the Justice Minister sought to fill the vacated position of Chief Prosecutor. He proposed to make a temporary appointment (it was a lame duck government and the Attorney General had already told him that a permanent appointment was out of the question), which is entirely within the Justice Minister’s authority by law. The Attorney General, who himself had strong institutional and personal interests in the matter, instructed the minister that it would be unreasonable to appoint anyone but one specific person – to whom, by the way, the Attorney General owed a personal debt. When the minister nevertheless tried to appoint a different candidate, a Supreme Court Justice issued a baseless injunction against the appointment.

In case you’re thinking that the government could just fire an insubordinate Attorney General, this is theoretically possible but it’s widely understood that the court would invalidate such a dismissal as either unreasonable or as serving ulterior motives. And, in any case, a replacement would be selected by a committee headed by a retired Supreme Court Justice; if the government were to reject the committee’s choice, that would be regarded as unreasonable. They’ve covered all the angles.

Judicial Reform

And here our tale begins.

On January 4, 2023, six days after Benjamin Netanyahu succeeded in cobbling together a coalition, the newly-appointed Justice Minister, Yariv Levin, announced a plan for sweeping reform to the justice system. The reform addressed some of the problems I mentioned above. Specifically, it included the following five elements:

1. The attorney general’s advice is not binding on the government and the government has the right to be represented in court by an attorney other than the attorney general.

2. An administrative decision can be ruled illegal by the court for all the reasons currently in force, but not on grounds of “unreasonableness” alone.

3. A Basic Law is not subject to judicial review.

4. A statute can be struck down on the grounds that it contradicts a Basic Law, but only by a super-majority of a full panel. And if a statute were to be struck down, the Knesset could override the court and restore the law.

5. The composition of the judicial selection committee would be changed to give more representation to elected officials. 

With the exception of parts of item 4, which could have easily been negotiated away, all the proposed changes would simply bring Israel closer to accepted norms in western democracies. In no western democracy is the attorney general’s advice binding and in no western democracy can the government’s lawyer sandbag its client in court. No western democracy has nearly as low a bar for unreasonableness as Israel. In no western democracy are laws at the highest level of the legal hierarchy subject to substantive review (unless the constitution explicitly provides for such a mechanism). In no western democracy do sitting justices have veto power over appointments to a court with the power of constitutional review.

But no first draft is perfect and this was no exception. The override (in item 4) should not have been included: it suggested a pendulum swinging too hard in the opposite direction. The immunity of Basic Laws to judicial review should have been accompanied by the establishment of strict procedures for enacting or amending such laws. The problem of standing – defining who can petition the court in any given instance – should have been addressed by the reform, but was inexplicably omitted. Various aspects of the reform were simply too raw and unrefined. Most importantly, the reform should not have been announced at a press conference with a target date for passage less than three months away, in a manner that sounded like a declaration of war. The proposal should have been rolled out in a deliberate fashion, so that the public could better understand its rationale.

But, again, this was a first draft, a basis for negotiations. What should have happened next was the usual political negotiations designed to improve the first draft and win the widest possible support. But that’s not what happened.

Seeking Compromise

Opposition politicians refused to negotiate judicial reform, a fact to which I can personally attest, having made numerous unsuccessful efforts to get them into a room with the Justice Minister. But, my colleagues and I at Kohelet and our counterparts in policy shops opposed to the reform began holding discreet meetings to work out a compromise, independently of the political process. Two months of intensive discussions yielded detailed compromises on all issues except the composition of the judicial selection committee (regarding which the gap was narrowed, but not closed, mainly due to outside interference).

The compromise agreements were as follows:

1. The Attorney General’s legal opinion is not binding on the government, but is binding on the bureaucracy; the government can choose its own representation in court.

2. An administrative decision by the government cannot be invalidated by the court on unreasonableness grounds alone, but an administrative decision by the bureaucracy can be so invalidated.

3. Basic Laws are not subject to judicial review, but Basic Laws could neither be passed nor amended without either a super-majority of the Knesset or approval by two consecutive Knessets.

4. A law could be struck down only by a two-thirds vote of a full panel of the Supreme Court; the Knesset cannot override such a decision.

As mentioned, we did not reach full agreement on the judicial selection committee. We did agree that the bar association should not be represented on the committee, that sitting Justices should not have a veto, that the opposition should have greater representation, and that the coalition should not generally be able to make appointments unilaterally. (One method that meets all these criteria is the old German method in which the legislature appoints a committee proportionately and a super-majority of the committee is required for an appointment.)

It’s important to consider that when dealing with matters such as these, arrangements ought be designed from behind the “veil of ignorance” – that is, independently of any knowledge we may have about contingent political circumstances – because, for example, we don’t know what the court and the coalition will look like decades from now. So whatever one’s opinions about the current coalition and court, they should be set aside in favor of a balance likely to work reasonably well in any potential situation. Both sides in the negotiation felt that the compromise made sense from behind the veil of ignorance.

We knew from many discussions across the political spectrum that the public was strongly in favor of just such a compromise – numerous polls reinforced this conclusion – and that the arrangements we proposed were broadly acceptable. The compromises obtained informal approval from representatives of both the coalition and the opposition and were presented to President Herzog, who had placed himself at the forefront of attempts at reaching a political compromise. After initial enthusiasm, the President – who maintained close contact with certain sitting and retired Supreme Court Justices – presented a proposal that reflected the hardcore opposition’s positions much more than it did our compromise agreements; his proposal was dead on arrival.

Given the amount of public support for any reasonable compromise, it’s worth remarking on why such efforts failed. Initially, both supporters and opponents of reform feared a possible outcome worse than a compromise; supporters feared total failure and opponents feared passage of the full reform package. Under those circumstances, compromise was possible. But, when the strength of the demands on the government not to proceed without broad consensus – in other words, to give the opposition a veto – drastically lowered the likelihood of unilateral government action, the opposition no longer had any incentive to compromise; the status quo served their political interests just fine. This is how good souls who desperately want compromise render it impossible.

Opponents of Compromise

In addition to our meetings with many people of goodwill who wished to find compromises, we held even more meetings with people who were less inclined to compromise. One of the benefits of our opponents’ unfounded belief in our omnipotence was that many of them were interested in meeting with us in order to persuade us to use our supposed omnipotence on their behalf. For our part, we were eager to meet with any party with whom we could have meaningful dialogue and build support for compromise. We met every type of opponent of reform: pilots, magnates, ex-heads of national security organizations, ex-ministers.

To be perfectly frank, these interlocutors almost always refused to discuss the reform itself or to propose ways to make it better – and, as I made clear above, there were plenty of ways to make it better. Instead, they kept repeating the same exact points, all of which were mysterious to me until I figured out the one underlying assumption according to which it all made sense.

I paraphrase loosely, but these were the points raised again and again by our interlocutors:

1. We aren’t legal scholars and we haven’t studied the proposed reforms carefully, but that’s not important; if the reform weaken the court, it’s bad.

2. There are hypothetical situations in which a malevolent government will do horrible things and only a benevolent court can save us.

3. There aren’t sufficient checks and balances between the executive and the legislature, so we need as much power as possible in the hands of the judiciary.

4. Sitting Justices have a veto over new appointments to the court, but so does the governing coalition, so the left and the right have to agree, which is just how it should be.

These assertions raised some obvious questions. Is every conceivable check on the court’s power harmful? Aren’t there hypothetical cases in which a malevolent court will do horrible things and only a benevolent government will save us? Do these assertions make sense from behind the veil of ignorance?

Furthermore, shouldn’t flaws in the relationship between the executive and the legislature be remedied (Kohelet has a paper on how to do it) rather than used as a pretext for aggrandizing the judiciary? What guarantee is there that the judiciary and the coalition will always be on opposite sides and shouldn’t a balance for choosing judges more properly be struck between the coalition and the opposition, which between them cover the full range of widely held views?

The explanation for all the mysterious views and the answer to all my questions lies in one underlying assumption that seems to be ubiquitous among my more aggressive interlocutors: that the wrong people won the election and will likely continue to win elections and they will eventually destroy everything, unless the court ensures that the right people continue to control all of Israel’s unelected institutions and that these institutions retain disproportionate power. Just take this proposition as given and every one of my questions dissolves into thin air.

I’m going to call this proposition the Barbarians at the Gates axiom. Let’s see if it holds water.

Barbarians at the Gates

So who are these so-called Barbarians who won the elections and who are the self-appointed guardians of Israel’s unelected institutions who must fend them off to save democracy? I hesitate to stereotype, but an honest account of the Barbarians at the Gates axiom requires at least a crude characterizations of the antagonists.

The guardians of Israel’s unelected institutions – the army and other security branches, state-licensed media, the justice system, publicly-funded universities, professional guilds and public labor unions – are the heirs of the secular-left establishment that has dominated these institutions since before the state’s founding, as well as their fans and fellow travelers. Many of them identify less with a continuous Jewish religious tradition with ancient roots and more with a modern Israeli ethos that seeks to overcome what they see as the flaws of that tradition: piety, passivism and chauvinism of various sorts. The Barbarians they fear are an amalgam of disparate groups that they regard as too religious, too sectoral, too primitive, too nationalistic, too messianic and too provincial – in short, too Jewish – to be entrusted with running the country. These disparate groups – Revisionists, traditional Sephardim, national-religious and Haredi – never saw themselves as a single camp – each group regarded itself as distinct from the Old Guard along a different axis – but a common rival has brought them together.

Significantly, then, the primary socio-political conflicts in Israel are now aligned along a single axis, the poles of which I’ll call the Blues (the heirs of the secular-left establishment) and the Oranges (their traditionalist rivals). To be sure, most Israelis, whatever their views on judicial reform, don’t identify as either Blue or Orange, but rather as intermediate shades.

Now let’s try to steelman the Barbarians at the Gates axiom. I’ll stick to claims that I heard repeatedly in discussions with opponents of judicial reform. Of course, I’m not asserting that all opponents of reform stand behind all of these claims.

First of all, a steelman argument might go, maybe the Blues really are on average more competent in many areas than the Oranges. If the Blues control Israel’s main unelected institutions maybe this is because of merit. (Regardless of the veracity of this claim, I think the Blues deserve credit for defending merit and not yielding to fashionable woke ideas that would use “equity” as a bludgeon against merit.)

Second, the argument continues, many Oranges are not carrying their weight. For example, Haredim for the most part do not serve in the army or other national service. On average, they receive more transfer payments from the government than they contribute in taxes and they deny their children the education that might remedy this situation.

Most importantly, many Oranges with political power appear to be not ready for prime time. They often try to advance legislation that is egregiously sectorial, bordering on the bizarre. For example, they have this past year tried to pass laws allowing hospitals to prevent visitors from bringing chametz into the premises on Passover and enforcing, at threat of imprisonment, a dress code at the Kotel. Now they are considering a law that would give Haredim who are enrolled in yeshiva a blanket exemption from national service. The most straightforward argument on behalf of the Barbarians at the Gates axiom, then, is that people whose commitment to religion or to sectoral interests is prior to their commitment to democracy and responsible governance are liable to use their political power for corrupt ends or to coerce religious practices or maybe even to simply do away with elections.

Given the Oranges’ past electoral successes and the demographic advantage they are likely to have going forward, it might be argued, the least the Blues can do to ensure Israel’s future as a liberal democracy is to keep unelected centers of power out of Orange hands. And given the Blues’ critical contributions to Israel’s security and prosperity, the argument goes, the Oranges would be wise to concede this power to them, even if only to keep them happy enough to choose to stay in Israel.

That covers the key arguments.

The Barbarians are not at the Gates

I’ll divide the counter-arguments to the above claims into two parts. First, I’ll explain why the supposed Orange menace is not nearly as scary as the Blues claim. Second, I’ll explain why the Blues’ supposed remedy is worse than the dystopia it is meant to prevent.

Are there some religious hot-heads who’d enforce coercive laws if they could? There surely are. But in fact most of the religious hot-heads I know just want the freedom to live as they wish without state interference and for the shared public square to sometimes reflect their own values. Be that as it may, let’s not quibble. There are enough scary people out there to worry about and no shortage of politicians determined to justify our worst fears.

Here’s why I’m not really concerned that the scary people will prevail in a democracy. If we line up Israeli voters along the axis from extreme Blue to extreme Orange, there is a median voter: the one who has an equal number of voters to his left and to his right. In a proportional election system such as the Israeli one, that voter, or rather the elected official who represents that voter, holds all the cards because she can choose whether to form a coalition with those to her left or to her right. This median voter in Israel is firmly supportive of the pragmatic vision I described above, according to which the state serves as a framework within which individuals and communities are free to pursue their various conceptions of Jewish national and communal life. And, because the center is so broad, this is almost certain to remain the case for generations, even if the median voter moves slightly Orange-ward.

So, if power is held by those who need to get elected, I am not too concerned by the threat of unwarranted coercion. (I emphasize that “if” for a reason; we’ll soon get to it.) To be sure, I understand the vagaries of coalition games and am concerned enough that I appreciate the need for appropriate judicial review and fully support it, subject to broadly accepted limitations. But it is no coincidence that when crazy laws are proposed from time to time, they are usually shot down not by the opposition or the court but rather by those coalition parties eager for the allegiance of the median voter.

In short, as a strong advocate of limited government, I’m very wary of all politicians and whatever policy ideas they are liable to hatch that might threaten my freedom and yours. I therefore support precisely the kinds of checks and balances that best incentivize decision-makers in all branches of government not to threaten that freedom. What I definitely do not want is the concentration of political power in the hands of a small and homogeneous group of people who effectively appoint each other so that their incentives are not necessarily aligned with the public’s interests.

The Blue Pill

Now for the Blues’ proposed remedy. First of all, let me be clear about the position I am not arguing against. If the Blues are frightened of the Oranges and wish to do everything in their power to persuade the voters of their case in order to get elected, fine: that’s democracy and democracy itself is valuable enough to me that I’m prepared to risk losing in order to preserve it.

Why is democracy important to me? I’m probably not the median voter but when the ruling coalition is accountable to the median voter, it is incentivized not to do anything very extreme that’s going to make me, or my polar opposite, too anxious. On average, this reduces polarization and increases political stability. I’ll take that deal, even if it means that my side sometimes loses.

The position I am arguing against is one in which, for the ostensible purpose of saving the country from the tyranny of the Oranges, the game is rigged so that the Blues are guaranteed to retain control of unelected institutions indefinitely.

A system of government that is rigged so that a particular political minority retains permanent control of unelected centers of power can be called many things — but democracy is not one of them. Even incanting the word de-moc-ra-cy while demanding such a system of government will not make it one. And it brings us none of the advantages of democracy I mentioned above.

As for the Blues’ transfer of power from the elected government to unelected institutions, it only makes sense to engage in this debate from behind the veil of ignorance. So, do the Blues favor assigning inflated powers to the courts, the prosecutors, the Attorney General, the army brass, state media, and all the rest only so long as these institutions are controlled by the Blues – or would they endorse it even if it were the case that these institutions were controlled by the Oranges and the coalition was formed by the Blues? You know the answer to that question. So we are not arguing from behind the veil of ignorance and this is not an argument about optimal institutional arrangements in the long-term. This is just about power.

You might say I’m being too high-minded. With all due respect to arrangements made behind the veil of ignorance and the benefits of representative democracy, we are in fact not behind the veil of ignorance and actual representative democracy under foreseeable circumstances is too risky. So, yes, we want to do whatever it takes to retain Blue control of the courts and the criminal justice system and other institutions because without the freedom, equality, and fairness ensured by such control, democracy would, in any event, be a mere hollow shell.

To this I respond as follows. That Orange legislators will cancel elections or exceed their legitimate authority, for which there is not a shred of evidence, or will engage in religious coercion or corrupt the appointments process, for which there are shreds of evidence, is an open question. That Blue judges and a Blue Attorney General, who do not need to appeal to the median voter, will do exactly that requires no conjecture. They already do so unabashedly in broad daylight.

Will a Blue court protect us from those who would subvert free elections? The court is itself hearing petitions to unseat an elected prime minister. Will the court protect us from legislators exceeding their legitimate authority? The court is itself blatantly exceeding its own authority by hearing petitions against Basic Laws that are at the pinnacle of Israel’s legal hierarchy and from which the Justices draw their own authority. Will the court protect religious freedom? The court itself has recently ruled that gender separation for religious reasons is a violation of human dignity and as such is subject to prohibition at the court’s discretion. Will the court protect us from corruption of the appointments process? As I mentioned above, the court itself has recently been party to questionable interference in the appointment of a chief prosecutor.

Other institutions controlled by the Blues suffer all the expected ill effects of discrimination and lack of accountability. The glass ceiling for security officials who don’t toe the Blue line has resulted in a top echelon that – as becomes obvious when they retire and enter the public arena – are, to put it delicately, not the sharpest knives in the drawer. When the Oranges try to open tightly-controlled radio and TV broadcasting to unfettered competition, the Blues resist; if a single outlet fails to join the Blue media herd, the Blues try to have them shut down. Prosecutors suborn witnesses, police torture suspects and obtain evidence illegally, the courts allow the fruit of the poisoned tree when it suits them, and the whole system invests wildly disproportionate resources against political enemies.

If the Blue predilection for inequality and unfairness weren’t obvious enough already, the campaign against judicial reform has left no room for doubt. Compare the number of indictments against the few who broke the law, for example by blocking roads, during protests against the 2005 Disengagement from Gaza (over 700) with the number of such indictments against the many thousands who regularly broke the law during protests against judicial reform (one). Or the Army’s response to those who refused orders sporadically then and extravagantly now.

Make no mistake. We are not talking about democracy or about the proper checks and balances among branches of government or about equality and fairness. We are talking about Blue power.

What Will Happen

There will be no judicial reform any time soon. Some opponents of reform have threatened to extract too great a price for passing reform and therefore its proponents will give it up, or water it down to irrelevance, rather than let Israeli society pay this price.

But we mustn’t miss the big picture. Most Israelis are eager for a compromise, both on judicial reform and on the other constitutional issues surrounding it. They want to enshrine the pragmatic vision. And such a compromise is possible.

A grand compromise would include most of the elements I discussed above, along with some quasi-constitutional arrangements ensuring basic freedoms. Both Oranges and Blues who share the pragmatic vision have incentives to reach such a compromise.

Blues are growing demographically weaker and their grip on Israel’s unelected institutions is unlikely to continue indefinitely. So, it is probably in the interest of moderate Blues to make a deal ensuring the kinds of institutional arrangements that make sense behind the veil of ignorance.

It is similarly in the interest of Oranges, who strongly value their freedom, to make a deal that solidifies the human and civil rights that are part and parcel of the pragmatic vision. One day a balanced court will not use “equality” or “democracy” as a weapon against the very notion of a nation-state or against religious freedom. When that day comes, moderate Oranges will have every reason to support enthusiastically the firm and clear grounding in law of equality and human rights, and the authority of the courts to enforce them. 

The end-point of this battle, the only possible equilibrium, is the pragmatic vision and the institutional arrangements that make it manifest. The only question is how much more social capital will be destroyed until we reach that point.

April 2024

So that’s where my head was at on October 6. How has my thinking changed in the 200 days of war since then?

Well, almost everything I wrote above is still true. The judiciary needs to be reformed for all the reasons I explained. But, in retrospect, I think the effort to reform the judiciary through legislation was a naive attempt to solve deeply-rooted social and institutional problems with formalistic tools. It was neither sufficient (in the short run) nor necessary (in the long run).

I’ll start with the reasons it was insufficient.

First, as was already clear during the protests, the Blues effectively control much more than the judiciary and were willing to use that power in order to maintain it – including threats of insubordination in the army, invoking the authority of ostensibly apolitical professional guilds for political purposes, and turning a blind eye to crimes like obstructing public thoroughfares. The judiciary is only the tip of the iceberg and reforming it would not come close to solving the problem of entrenched Blue power.

Second, the Court’s threat to strike down a basic law has now become a reality: in the midst of the war, the court issued a rushed and poorly-argued ruling striking down the one tiny piece of the reform that had actually been passed. One could hardly exaggerate the significance of this development. Attempts to legislate limits on the court’s authority are pointless now that the court has granted itself the authority to strike down that legislation itself. Legislation is not the solution. Other, less formalistic, methods will be required – methods the Oranges will learn from the Blues.

Apparently, then, I ought to be very pessimistic. The Blue victory seems to be absolute. But this conclusion reflects a very short-term understanding of the situation.

Consider a simple question: Why has the judiciary until now not hesitated to ignore the law when it has been convenient to do so, but the other branches have never considered the possibility of ignoring such rulings in turn? The answer is, of course, that the two sides are not equally deterred. Deterrence is not a function merely of relative institutional powers, but rather of perception: how the public and its representatives perceive the distribution of power and prestige between different centers of power.

With this in mind, I will make a simple argument. Both the protests against the reform and the war itself have severely damaged the Blues’ prestige and the public’s perception of the legitimacy and feasibility of their continued disproportionate power in non-elected centers of power. The consequences of this change in perception will play out fully and inevitably, even if only over a matter of years.

Shifting Prestige and Generational Transition

Institutions through which the Blues wielded power quietly began to lose prestige once Blues began to use that power openly. Elites can only make a public display of subverting public institutions – the military, the justice system, professional guilds, universities and so on – to their narrow political interests once; such an effort either succeeds and inevitably weakens those institutions themselves or it fails and just as inevitably weakens the elites’ grip on them. Either way, the Blue mutiny is a sure sign that the ship is already turning.

The war has made this even more obvious by precipitating the most dramatic shift of prestige in the history of Israel. As far as the army is concerned, the war is almost universally regarded as a failure of a complacent and conventionally mediocre senior command and a triumph of brave and motivated officers and soldiers in the field. Moreover, several army units that traditionally skew Blue have lost considerable prestige, while the ones that very clearly do not skew Blue – infantry, the engineering corps and the armored corps – have gained prestige. It turns out that those who claimed to speak in the name of the army and the reservists, as if they alone were carrying the national burden while others shirked, and then threatened to use their army as a tool in their political struggle, were threatening with an unloaded gun – indeed, the gun wasn’t even theirs.

In fact, the failure of the Blue-dominated senior command to anticipate and understand this war is not an accident. Many of them regard the very idea of Jewish exceptionalism as “messianic” and hence fail to comprehend that Israel’s enemies hate it simply because they hate Jews and Judaism. This contributed to their blindness – and the blindness of Blue elites in the legal establishment and in the diplomatic corps – to the seemingly inexplicable, but very real, threats that have been bubbling up against Israel just below the surface for a long time.

The failure of the senior brass and the success of more junior officers and fighters is consistent with a recurring pattern in my numerous discussions with opponents of reform – one to which I did not attach sufficient importance at the time: the willingness to engage in substantive talks and to consider compromises was inversely correlated with age.

As I described above, most opponents of the reform with whom we spoke – specifically, the ones of an age to be at the peak of their various careers – were willing to place their trust in Blue judges but not in Orange legislators. I thought then, and I think now, that they should have thought about such matters from behind the veil of ignorance and that, in particular, they were taking their own fears too seriously and not taking my contrary fears seriously enough – but such is human nature and they no doubt thought the same thing about me. In any event, at the moment their sons and mine are serving together in Gaza and our fears are completely aligned, so maybe a bit more graciousness and goodwill on both sides could have gone a long way.

In the spirit of brotherhood, then, I am prepared to offer an admission here. Had the coalition taken the time to present a more ripe proposal along the lines of the compromise I described above, rather than a rushed proposal including imprudent bargaining chips, some – though, as I’ve explained, definitely not most – of the wind might have been taken out of the sails of the opposition to the reform. In retrospect, perhaps I should have made a greater effort to persuade the coalition to put a compromise offer on the table at an earlier stage of the process, even as the opposition refused to engage, if only to assuage the fears of much of the public who were not among the hardcore opponents of reform.

In any event, this would not have helped at all with our older interlocutors, who were mostly retirees from senior positions in Israel’s Blue-dominated institutions. They made it quite clear that power was their birthright. As far as they were concerned, the country was not worth saving if they weren’t running it and they would stop at nothing to prevent the vulgar Oranges from stealing their country. (An aside: Yordim [Israelis who left Israel to reside abroad] demonstrated against me when I visited New Jersey, arguing that, after living in Israel for 44 years, serving in a combat unit myself and sending my kids off to war, I was a “foreign implant” in their country.)

To some extent, this is merely one more manifestation of a fairly well understood problem. Israel suffers an acute case of what Peter Turchin calls the over-production of elites. The Blues have produced a surfeit of high-tech magnates, retired high-ranking officers, ex-ministers and more, many of whom see themselves as potential leaders of the country. But Bibi Netanyahu’s longevity and the Labor Party’s near-disappearance have frustrated their ambitions. This alone, as Turchin notes, can catalyze political and social unrest.

The vitriol of these frustrated elites often crossed the bounds of good taste. A retired Chief Education Officer of the IDF wrote a Facebook post calling for my “elimination”, helpfully adding that he meant the term “in the military sense” and not as a metaphor. (That was sufficiently unsettling to make me wonder if the IDF really ought to be involved in education.) A retired Defense Minister threatened us with “blood in the streets” and explained, without a hint of irony, that even though his friends would be spilling it, it would be on our hands. Several retired pilots told us that all the pilots would stop flying, that this would materially affect Israel’s ability to defend itself, and that their only regret was that they were no longer active and were thus prevented from actively refusing to serve. I’ll spare you many more such examples for the simple reason that, in retrospect, these people are not relevant.

In stark contrast to all that, younger opponents of reform with whom we engaged were, for the most part, more likely to frame the matter in terms of rights and freedoms than in terms of the sense of entitlement of a ruling class. As much as I disagree with their reading of the situation, once the matter is reduced to a policy disagreement, it is negotiable. And, as the war proved, the vast majority of young people in Israel do not seem to suffer from the kind of debilitating wokeness that has clouded the moral judgment of their counterparts in Europe and the United States.

These are grounds for optimism.

Towards Realization of the Pragmatic Vision

Let us suppose, then, that Blue prestige is greatly diminished, especially among the younger generation. What then?

I will argue that this will lead to the realization of the pragmatic vision – a freer and more Jewish Israel. But this needs to be done right.

The purpose of judicial reform was to diminish disproportionate Blue control over unelected institutions so that the median voter’s pragmatic vision could be realized. In the short run, this strategy backfired. Instead of enlisting widespread support for the pragmatic vision against ideological tyranny, the proposed reform allowed the outgoing elite to use their considerable resources to enlist those with legitimate, even if exaggerated, concerns about the proposal in their related, though quite distinct, struggle – the struggle to preserve Blue power in defiance of democracy.

The prudent strategy now is to promote the benefits of the pragmatic vision itself, about which there is broad consensus. True, those who tend Blue will continue to fear those Oranges whom they believe reject the pragmatic vision on religious grounds, and those who tend Orange will continue to fear those Blues whom they believe are estranged from Judaism and don’t respect religious freedom or democracy in its plain meaning. But these fears mainly reflect widespread support for the pragmatic vision against its, real or perceived, enemies.

In short, one thing the war has made abundantly clear is that Israel is a fundamentally healthy and unified society burdened with entrenched and decadent institutions. Mere “parchment barriers”, as James Madison put it, are unlikely to restrain these institutions, but the loss of prestige following from their repeated failures will create opportunities for renewal – opportunities that we as a society can and must seize. To be sure, such renewal must not replace one monopoly with another; rather, it must result in more representative institutions capable of attracting talent, engendering social trust and adapting to new challenges.

Revitalized institutions could effectively address Israel’s long-term challenges, recognizing that these challenges inherently involve tradeoffs. Politics is an inefficient pursuit of adequate equilibria, balancing competing legitimate interests such as:  the need to constrain irresponsible politicians and the need to constrain overzealous judges and bureaucrats; freedom and equality; traditional values and social progress; national solidarity and individual rights; the right to work and the right to strike; international trade and economic self-sufficiency; secure borders and recognized borders; educational freedom and national unity; accommodation of allies and national sovereignty. Clearly, I have opinions about where the ideal equilibria lie relative to our current state, and I hold strong views on who is pushing too hard in the wrong direction. However, let’s set that aside for now. What’s clear is that fear-driven tugs of war are unlikely to lead to stable equilibria. Once the lessons from the current situation are fully absorbed – this will take a few years – we can begin to overcome the institutional and political stagnation that hinder such convergence.

True unity, of the sort we experienced too fleetingly during the early stages of the war, follows not from empty declarations about the importance of unity or from the ability of the powerful to silence critics of prevailing orthodoxies. It follows from the hard work of establishing fair and stable mechanisms that permit convergence to effective and broadly-accepted policy solutions. This is the true meaning of rule of the people. I believe it is a realistic goal and am prepared to do my share of the hard work.

The fall of the current inadequate Orange government is inevitable. And the decline of the disproportional institutional power of the Blues is inevitable, as well – the only difference is that the means for replacing governments are well understood. In any case, in the years after the war, we will likely see nothing short of a massive generational shift. The generation that is fighting this war and that has proved itself more worthy in every respect than the generation now running the country will soon assume the mantle of leadership. Human nature will not change, but there is reason to hope that this generation will unite around the pragmatic vision.

The pragmatic vision, as I have defined it – the state as a political framework that facilitates the free and organic development of Jewish civilization – is deliberately somewhat thin. It must be said honestly that such a framework is necessary, but it is not sufficient. The Jewish civilization that emerges from this process must be substantive enough to be worth fighting for – or few will be willing to fight for it. And it must be well-adapted to the political and social circumstances of a sovereign Jewish state – or it will wither. But if this process succeeds, as I am confident it will, Israel might serve as a beacon for western and non-western civilizations that have lost their way.

Young Israelis have shown that they grasp well what we are fighting for. Let us now put in place robust constitutional and institutional arrangements that sustain the rule of the people in Israel, so that the best of this generation will have the luxury of expending their efforts not on politics, but rather on developing an exemplary Jewish civilization in a strong, resilient and renewed Israel.

(Published in Hebrew in Hashiloach)