Discover more from The UnPopulist
Israel’s Internal Divisions Are Its Mortal Enemy Now
The rightwing government’s assaults on the judiciary will dissolve the glue uniting the country
Wikipedia. Creative Commons. Lizzy Shaanan.
As Abraham Lincoln pointed out quoting the Bible, a house divided against itself cannot stand. Israel, which recently celebrated its 75th anniversary, may be buckling from within. With the peace agreements that Israel recently signed with many of its former enemies in the region, the greatest threat to Israel’s existence no longer comes from outside the country but from rising political divisions within. This was already the case before the new rightwing government proposed radical judicial reform. But if it goes forward, Israel will have a hard time balancing competing constituencies and values and could well come apart.
To outside observers, Israel has the appearance of social unity given the overwhelming domestic consensus that Israel should be a Jewish country. But that consensus obscures deep divisions and tribalism. There is of course the longstanding rift between Israel’s Jewish and non-Jewish population (Muslim Arab-Israelis but also Christians). But there are other fault lines too based on ethnicity, attitudes toward Judaism, and politics. Western Ashkenazi Jews, Eastern Sephardi/Mizrahi, and Ethiopian Jews are in tension with each other. Jews of color, whether of Middle Eastern or African origin, confront discrimination and have their own set of complaints. Less observant as well as Reform and other progressive Jews often bitterly resent the Orthodox, particularly ultra-Orthodox Haredim, because (unlike their Religious Zionist counterparts) they control Israeli religious institutions, are too dependent on public assistance, and won’t serve in the military. Conversely, many Orthodox Jews dislike the cultural progressivism of the less observant. And then there are the intense divides between Israel’s right, left, and center.
Israel has managed these rifts through a commitment to deliberative, democratic decision making that allows representation for all these factions. Israel does not have a full blown, written constitution like the United States that it can refer to arbitrate these disagreements. But it does have an independent judiciary and a powerful Supreme Court that is able to rein in the overweening ambitions of the party or the coalition in power.
Israel’s Tough Balancing Act
How does Israel achieve this balance?
The Knesset can pass legislation, but the Court has the power of judicial review. The Court often assesses new legislation based on its consistency with the “Basic Laws,” a quasi-constitution that helps to protect certain fundamental rights. As a result of the failure of Israel’s founding government to create a formal written constitution in the 1950s, the system of Basic Laws was installed to decide core functions and structure of government as well as other matters. In the 1990s, Israel underwent a “constitutional revolution” and the Basic Laws assumed even more importance in the Court’s judicial review process.
Over the course of Israeli history, the Court’s powers have been central to preventing any ruling group from imposing its vision on the rest of the country. Religious Jews cannot simply foist their practices on secular ones and vice-versa. Ethnic and political divisions are institutionally constrained. Israel may not be a perfect liberal democracy that equally protects the rights of minorities in all instances, but this arrangement has at least provided a modicum of protection for the rights of Jews and non-Jews alike, including Arab-Israelis.
This delicate balance is now being threatened by the new rightwing government’s attempt to radically limit the power of Israel’s judiciary. As Mairav Zonszein explained at The UnPopulist, the reforms would be a devastating blow to institutional checks and balances, the rule of law, and civil liberties. Its provisions include allowing the Knesset to override any adverse court rulings by a simple majority and weakening the protections afforded by the Basic Laws. Every fundamental right in Israel—free speech, freedom from unjust detention, compensation for mistreatment by the state—would become subject to the raw will of the government in power. As if all that were not bad enough, the reforms would also hand the governing coalition overwhelming control over the selection committee that appoints judges. This means that the party in power will be able to stack the courts with likeminded judges and avoid adverse rulings, which is basically an invitation to extremism if not outright tyranny.
Assaults on the Judiciary: Unprecedented and Radical
One important question is why no previous governing coalition has attempted to change the balance of power between the Knesset and the courts? After all, as Lawfare’s Benjamin Wittes explained, the Israeli Supreme Court has always existed at the pleasure of the Knesset in the absence of a formal constitution.
One reason is that past governing coalitions in Israel have consisted of center-left or center-right parties. This means that the coalitions themselves had built-in political incentives for moderation as the precondition for consensus. They certainly couldn’t unite behind radical judicial reforms of the kind that the current government is considering.
But the government led by Prime Minister Benjamin “Bibi” Netanyahu has no moderate elements. It is a coalition of extremists because moderate parties were unwilling to join a coalition with Netanyahu given the corruption charges he is facing. Hence, his Likud Party was forced to ally with parties of the extreme right such as Religious Zionism (HaTzionut Hadatit), Jewish Power (Otzma Yehudit), Noam (representing radical Religious Zionists), Shas and United Torah Judaism (both of whom represent the fundamentalist Haredim).
But these rightwing extremists—precisely because they are extremists—do not recognize the necessity of institutional checks and balances. Each faction has its own specific ideological cause and it sees the current coalition as a rare opportunity to remove the judicial obstacles to advancing it. Netanyahu, though a national security hawk, had previously been a temperamental conservative with a track record of preferring the status quo to radical change. If he is pushing the curtailment of the judiciary’s powers, it is because that’s his best hope of staying out of jail. The nationalists want to limit the court’s oversight in order to fulfill their vision of annexing the West Bank and fully extending Israeli sovereignty to all disputed areas, destroying all prospects for Palestinian statehood and placing all Palestinians under effective apartheid. Meanwhile, the Haredi parties, which are more interested in defending their way of life than the nation, want to prevent any possibility of the court overruling their extensive reliance on public assistance or requiring them to serve in the military, or banning them from segregating men and women during events or discriminating against LGBTQ individuals.
In the face of the massive public backlash to the judicial reforms, however, the Haredi parties started backtracking. They had until recently championed some of the most unpopular measures, including the “override clause” allowing the Knesset to ignore court rulings with a simple-majority vote. But now these parties are hesitating to challenge protestors out of fear that public rage might ultimately doom their policy goals.
But Netanyahu himself is hanging tough. Why is his Likud Party going along with him, especially since some 40% of Likudniks don’t want the reforms? As a Revisionist-Zionist party that takes inspiration from the command structures of the military, Likud is governed by a “follow-the leader” mentality. Also, Netanyahu’s Deputy Prime Minister and Minister of Justice, Yariv Levin, is a champion of the reforms. He has railed for decades against the liberal elite allegedly controlling Israel’s destiny and wants to take over the levers of power to do a reset—not dissimilar to what national conservatives in the U.S. want to do.
Adding fuel to this extremist dumpster fire is Netanyahu’s decision to reward his right-wing coalition partners by handing plum appointments to some of their most incendiary figures. And they are wasting no time in inflaming tensions. Itamar Ben-Gvir, head of the Jewish Power movement who has been appointed National Security Minister, has visited contested sites like Al Aqsa/Temple Mount. He has called for the shooting of Palestinian protestors in the Sheikh Jarrah neighborhood of East Jerusalem, among numerous other equally terrible things. Meanwhile, Bezalel Smotrich of the Religious Zionist Party, who has been made Finance Minister and awarded a cabinet post in the Defense Ministry dealing with West Bank affairs, has called for the annihilation of the Palestinian village of Huwara. In fact, he denies the very existence of a Palestinian people. Smotrich also wants to institutionalize Jewish religious law (halakha) and make it the operating system of the Israeli state. Neither he nor Ben-Gvir recognizes any limits on their racist and totalitarian visions for Israel.
Israel’s Rightward Drift and its Implications
Netanyahu cobbled together his rightwing governing coalition with a slim margin, which means that the elections could have gone the other way this time had it not been for infighting between the leftwing Meretz and Labor parties that prevented them from running a joint list. Still, there are broader demographic and political factors that are pushing Israel in a rightward direction.
For starters, the ultra-Orthodox population is growing because of this cohort’s relatively higher fertility rate compared to other groups. Not all Orthodox Jews are illiberal of course and no particular ideology is genetically pre-ordained. However, the insularity of the Haredi community shields it from external moderating influences and allows it to perpetuate its worldview—and extreme agenda—across generations. Although the Haredi are isolationist and mostly concerned with their own affairs, they are willing to go along with the Netanyahu government if it secures their interests. Migrants from France, the Middle East, and the former Soviet Union have also contributed to Israel’s right turn. Meanwhile, the left has been discredited by its failure to make peace with the Palestinians given the collapse of the Oslo Accords and the two-state solution, leaving young voters with the perception of no viable choice but the right.
Indeed, Israelis are themselves realizing that the division between Jews and Arabs is becoming less salient relative to the divide among Jews themselves. Israel Democracy Institute surveys show that in 2016, 53% of Israelis rated the tension between Jews and Arabs as the biggest source of polarization in the country and 24% the left-right divide. By early 2023, perceived tensions between Jews and Arabs had declined from its 2016 height of 53% down to 45% while 42.5% regarded the left-right divide as the most severe.
Deliberative Democracy: Israel’s Glue
Israel has managed its myriad divisions thus far by treating politics not as a Manichean struggle between good and evil in which one’s supporters are “good” and opponents “evil,” but rather as a complex process of achieving compromise and cooperation in the face of good faith disagreement and diverse goals. And the Supreme Court has been key to doing so. But if the right succeeds in neutering the judiciary to the point where it can no longer perform its traditional balancing act between various factions, it’ll polarize Israeli society even more.
Yet instead of listening to the critics of these reforms, Netanyahu’s government has viciously attacked them as “anarchists” and “leftist traitors”, even calling for the protestors' arrest. He has put the judicial overhaul on hold for now. But if he proceeds, Israel will find itself in a state of chronic—and escalating—conflict.
If people can’t go through normal institutional channels such as the judiciary to have their voices heard or concerns addressed, they will take to the streets. Moreover, electoral politics will become even more winner-take-all and therefore more bitter and polarizing.
Israelis may not have agreed on much to date but they have agreed on a process to sort out their bitter disagreements—namely, deliberative democracy with institutional checks-and-balances and a modicum of commitment to basic rights. Such a democracy isn’t an idealistic luxury for Israel, it is an existential necessity.
If Israel is going to survive, it will have to revive its democratic project. And for that, as Naftali Bennett, the former rightwing prime minister of Israel has argued, Israel desperately needs a centrist-liberal coalition that understands the importance of institutional balance and is dedicated to restoring it.
Despite its myriad flaws, Israel has accomplished incredible things in its 75 years of existence. It will be a great tragedy if rightwing extremists polarize and split the country apart.