What exactly are the negative consequences of the Israeli Supreme Court reform, as per the protestors?

Question

Israel has had massive anti-government protests for 6 months due to the proposed Supreme Court reforms. But what are the exact negative consequences of such a reform, as per the protestors?

Are they claiming that elections will be cancelled or manipulated as a result? Or, perhaps that political opponents of the government will be sent to jail? Or, that mass media will be taken over by the government?

I’m only interested in specific negative consequences claimed by the opponents of the reform, not abstract discussions about the importance of having three independent branches of government.

Answer 1

Gonna quote someone directly rather than paraphrase, but it communicates the idea. (one other way to think of parts of this in US terms would be that removing the "reasonableness" principle would give POTUS Executive Orders - not laws - a lot more power).

Israel's Supreme Court reform crisis | Brookings

The so-called “reasonableness bill” passed with a 64 to 0 vote after all members of the Knesset’s governing coalition voted for it and all members of the opposition left the chamber. Passage of the bill has sparked turmoil in the country. Natan Sachs, director of the Center for Middle East Policy at Brookings and a senior fellow in Foreign Policy, discusses what’s happening in Israel.

...

SACHS: Well, Israel operates with a common law system. It does not have a clearly defined constitution. It chose instead to have a gradual legislation, what’s known as basic laws, which we can think of as articles of the constitution. But they are very easy to change. And like in most common law systems, especially the British one, a lot of the legislative doctrine comes from history of judicial decisions. And the reasonableness doctrine came about there. It boils down to a judicial review of administrative decisions.

So, reasonableness does not apply to laws. The court will not strike down any law, never struck down a law because it deemed it unreasonable. Rather, it would sometimes evaluate decisions by ministers, the government, or officials, which, for example, could have a conflict of interest or might not have even weighed the serious ramifications of a decision and made something whimsical, capricious decisions which in the United States could also be struck down.

... DEWS: So, you wrote a piece, that’s on our website, in February about Prime Minister Benjamin Netanyahu’s efforts to limit the role of the Supreme Court. And you said, quote, “In Netanyahu’s new Israel, the slimmest of majorities could decide anything. Pure, unbridled majoritarianism.” But in this new law, the prime minister says he’s fulfilling the will of the voters. So, what do you make of that claim?

SACHS: So, two points on this. The first is that this issue of reasonableness is just one element. It’s not a small element, but it’s only one element and small in comparison to the vast project that this government set out to limit the ability of the court to oversee or to override both legislative decisions and executive decisions. The goal of the sweeping program by the government was really to undo the one check on legislative and government decisions in Israel. Reasonableness is really only one relatively small element in that.

Why did I write that? Well, if you think of the United States, for example, if a small majority in the House of Representatives wanted to pass an outrageous law curtailing the rights of some minorities, say after a terrorist attack or something else–it’s happened, of course, in history–but you could easily imagine a case like that. Well, it might pass the House perhaps, but it would still have to pass the Senate. And the Senate has a filibuster. Then it would go for a presidential veto, which is hard to override. It can be done, but it’s very hard to override. Then it would go to a whole set of federal courts and they would operate with a very clear Bill of Rights that’s enshrined in the Constitution as amendments to it that are very, very hard to change.

In Israel,if a small majority, say 61 members of 120–or right now 64 members of 120–members of the Knesset wanted to pass a bill curtailing minority rights or individual rights, there is no second House, there’s no higher chamber, there is no presidential veto. There are no courts except only one. The Supreme Court wearing a hat as High Court of Justice that can strike down legislation by the Knesset.

And from The Economist a little more detail on this "reasonableness" doctrine:

By 1989 the city of Jerusalem had been trying for nearly two decades to build a new football stadium. Powerful religious groups who saw matches on the Sabbath as a desecration of Jerusalem’s sanctity had blocked the project, but at last ground could be broken. One obstacle remained. The acting interior minister, Arye Deri, an up-and-coming ultra-Orthodox politician, blocked the land-use change. Teddy Kollek, the city’s mayor, took him to court. In January 1989 the Supreme Court ruled that Mr Deri had acted “in an unreasonable way”. * Two and a half years later the first match was played at Teddy Stadium.

Legal experts cite the case as one of the earliest examples of the court’s nullifying a government decision on the grounds of “reasonableness”. That principle was introduced in a ruling in 1980 by Aharon Barak, then a new judge on the Supreme Court. It revolutionised Israeli jurisprudence and is a principal source of the constitutional chaos engulfing Israel today.

On July 23rd Binyamin Netanyahu’s government is set to pass an amendment to one of Israel’s quasi-constitutional “basic laws”. It would give the government immunity from the reasonableness standard. Israelis have been taking to the streets since the start of this year in protest.

The reasonableness standard has affected decisions in almost every area of Israeli politics. It was used by the Supreme Court in 1989 to force the army to put on trial a colonel who ordered his soldiers to beat up Palestinian detainees. * The following year the court invoked it to direct the attorney-general to charge bankers with share manipulation. * In 1993 the court again took on Mr Deri, ruling that he could not remain interior minister after being indicted for corruption. * He was forced to resign, convicted and sent to prison. He then returned to politics. In January 2023 the Supreme Court ruled once again he must resign from cabinet because of a conviction for tax fraud. * Seven of the justices cited the reasonableness standard.

p.s. I would add to it that this site sees fairly frequent questions about the "risks from democracy in action", such as a majority imposing unpleasant rules on minorities (example Q). Almost invariably, they are reassured that Supreme Courts, such as the one at risk of getting neutered here, are the guarantors of this not happening. See also Majoritarianism.

p.p.s. (note the following parallels another answer).

Another risk, very specific to Israel, is due to their electoral setup. The Knesset is heavily fragmented between different parties, with what seems to be often a fluid structure of alliances of convenience, which gives small parties outsized "kingmaker" influence in coalition governments. Let's look at the much-maligned Mr. Deri above. He leads Shas, a fairly right wing Orthodox party with 11/120 parliamentarians. Rather than 61/120 Knesset members imposing something via a bare-minimum majority, a given regulation may very well be an electoral exigency imposed by a small party as a price for its support. So it may not even even represent the will of a significant proportion of Israelis, making it all the more regrettable that there is limited judicial oversight.

* These are cases in which the government could not have been challenged in court by the newly defanged Supreme Court.

Answer 2

I think "Italian Philosophers 4 Monica"'s answer gives a good idea of the motivation for opposing the changes - but it does not list "specific negative consequences ". I do not know the specifics of Israeli politics, but I want to directly address your question:

I’m only interested in specific negative consequences claimed by the opponents of the reform, not abstract discussions about the importance of having three independent branches of government.

As far as I understand, part of the problem is that finding such "specific negative consequences" is difficult. The opposition actually is about "the importance of having independent branches", as you put it.

Briefly, people opposing the change believe that it gives too much power to the executive. So yes, it is an "abstract discussion" in the sense that opponents cannot point to one specific problem that the change will cause - but "abstract" does not mean "baseless", and there is good reason to believe that the change will cause problems - however, what precisely these problems will be is hard to predict.

However, it is possible to list specific issues from the past that would be affected by the change, which is what the other answer does.

Answer 3

Question: What exactly are the negative consequences of the Israeli Supreme Court reform, as per the protestors?

Since the current coalition came into power last December, its members have submitted hundreds of bill proposals showing their legislative agenda. Here are a few examples:

• Giving the parliament, which enjoys a majority of coalition members, the ability to ban political parties from future elections, without the oversight of the Supreme Court.
• Death penalty to terrorists administered through military tribunals without a possibility of appeal. Deportation of terrorists' extended families.
• Dissolution of the bar association.
• Immodest dress at the Western Wall would be punishable by up to 6 months in prison.
• Incorporation of a new "National Guard" force, reporting directly to the minister of National Security rather that the usual chain of command.
• Removal of judicial oversight of most government appointments.
• Full exemption from mandatory military service only to the Ultra Orthodox community.

and many more but I suspect you get the picture. The vast majority of these proposals have been deemed illegal and have no chance to pass judicial scrutiny and other legal gatekeepers (executive branch legal counsel). Which is exactly why the coalition is passing legislation to dismantle the checks on its power by the courts.

In short, the government has charted a clear anti-democratic legislative agenda rife with corruption, discrimination and authoritarianism. These "negative consequences" are the reason for the protests.

Answer 4

Question: What exactly are the negative consequences of the Israeli Supreme Court reform, as per the protestors?

A twenty first century Israeli twist on a 19th century German aphorism. Governments are like sausages, it is better not to see how they're made. The protesters are seeing how their government is being made.

core issues

The fear of the protesters is the reform eliminates any check on majority rule. Majority currently defined by 4 votes in the 120 seat Knesset. A majority which took the Israel people five elections in just under four years to achieve. This semi-stable majority in power for less than a year, now is voting itself absolute power. Absolute power initially to pass laws which benefit a narrow segment of the Israeli populous important to the ruling coalition. These laws to privilege a few have already been overturned by Israeli courts. Conversely if the majority doesn’t gain this new authority to escape court scrutiny, they can't bestow the privilege on this small party and Netanyahu’s government likely folds. Then we go to the six election in just over four years and the political crisis continues.

Since Israel's establishment it's supreme court has overturned 20 laws.

1. Radio Broadcasting without a License (2002)
2. Investment Managers Bureau vs. Minister of Finance (1997)
3. Military Arrest (1999)
4. Increasing Compensation for Disengagement Evacuees (2005)
5. Exemption from Damage Claims against Security Forces (2006)
6. The Banning of Privatization of Prisons (2009)
7. Discrimination in Obtaining Social Security Benefits (2010)
8. Security Detention without Appearing Before a Judge (2010)
9. Prohibition of Denial of Income Support Benefits from an > Individual Owning a Vehicle (2012)
10. State Ordered to Publish Criteria for Income Tax Benefits for > Localities (2012)
11. (*)Equality in Sharing the Burden of IDF Service; The Draft Law (2012)
12. Imprisonment of Asylum Seekers (2013)
13. (*)Scholarships Exclusively for Ultra-Orthodox Students(2014)
14. Imprisonment of Asylum Seekers (2014)
15. The Boycott Law (2015)
16. Imprisonment of Asylum Seekers (2015)
17. Tax on Ownership of a Third Apartment (2017)
18. (*)Equality in Sharing the Burden of IDF Service; The Draft Law (2017)
19. Asylum Seekers’ Deposits (2020)
20. The Judea and Samaria Settlement Regulation Law (Regulation Law) (2020)

The 3 laws which most concern P.M. Netanyahu's continued governance that are most driving the current crisis are #11, #13, and #18.

Beyond that, The Rule of Law is a legal principle which states no one is above the law. Prime Minster Netanyahu who has been charged with fraud, breach of trust and accepting bribes in three separate scandals with this "reform" is attempting to end the rule of law in Israel and place himself beyond the law's reach.

• Are Netanyahu’s legal troubles behind push for judicial change?

Answer

Israel like the United States and most self described democracies are not democracies at all. They are set up and maintained as republics. The fatal flaw in Democracy is the tyranny of the majority. Here a minority is anybody outside of the majority. The tyranny of the majority is what killed the philosopher Socrates in Athens which inspired his pupil Plato to propose the Republic. Republic's are designed to protect minorities through multiple branches of government, separation of power, and checks, balances on those powers. The Israeli "judicial reforms" eliminates these aspects of their republic.

The Knesset, Israel's legislature, is a unicameral legislative body. In such a Parliamentary system of government, where the executive and legislative branches are already blended, weakening the only other branch of government, the Judiciary eliminates the only check on majority power. That is Prime Minister Netanyahu's stated goal for the "reform". He objects to limits on his majority rule. What's at stake is literally the rule of law.

Are they claiming that elections will be cancelled or manipulated as a result? Or, perhaps that political opponents of the government will be sent to jail? Or, that mass media will be taken over by the government?

Yes.

If the legislature can re-imagine / suspend court oversite to eliminate any check on their authority what couldn't they do? They have already proposed such laws which would never pass a court review. That is the entire point.

Israeli citizenry is highly polarized. It took Israel people 5 elections just under 4 years to find a Knesset where any semi stable coalition majority could be formed. That's not much of a popular mandate for absolute power. This was called the 2018–2022 Israeli political crisis perhaps it will be called the 2018–2024 Israeli political crisis.

P.M. Netanyahu was only able to create a government by knitting together small extreme right wing parties willing to overlook his impending criminal cases. The nature of the slim margin (4 votes) which permit Netanyahu's government to exist magnify the power of these small parties; any one of which could topple the national government by removing their support. Some of these small parties have already toppled Israeli coalition governments over the last few years. These small parties along with Prime Minister Netanyahu pending legal troubles are driving the weakening of the courts.

For the small parties their court blocked desire starts with not wanting their ultra religious members to have to serve in the Israeli military. Laws #11 and #18 in the list of laws overturned by Israel's courts. Service is currently obligatory for Jewish Israeli men and women when they turn 18. This entire crisis began when the courts block Netanyahu’s majority from granting the ultra orthodox a service exemption in 2017. If now 5 years latter if they still don’t get their exemption, they’ll with draw from the majority coalition, which will cease to have a majority and the government will collapse. When the courts struck down the military exemption passed into law for the second time in 2017 by PM Netanyahu, the party did just that, collapsing the government and that was the beginning of this crisis..

So rather than majority rule this is just as accurately described as minority rule. A minority with a jujitsu neck grip on a slim transient majority. A majority seeking absolute power, lead by a Prime Minister who if he fails to placate this small ultra orthodox party, is looking at political banishment and jail time.

Answer 5

The earlier answers are all good, but are overly complicated and lengthy, while the issue is not really that complicated.

Here's one way to look at it: the (fairly slim and shrinking) majority of Israeli society is not religiously observant, and they fear being dictated to by the growing religious minority. As in the U.S. there is a vocal small minority of the religious community who would impose religious strictures on the nation as a whole, if they could, and a political party that panders to them for votes. So it's not an entirely unreasonable fear, even though the vast majority of conservative voters do not wish to impose such strictures on the non-religious. (Most of the more alarming laws that have been proposed were floated by the small more radical religious parties and have very little chance of passage, even with a mostly-religious ruling coalition. There are multiple reasons why.)

Here's another way to look at it, which most Americans have no clue about: the Israeli Supreme Court has quietly and gradually, over the past few decades, set itself up with all the usual powers of a traditional (non-constitutional) monarchy: they can overturn literally any law or any decision of the elected government, without even the need for anyone to bring a case to the court. They can even prevent laws from being passed, and have representatives who sit in on Knesset committees for that purpose. The head of the court can decide which justices, and how many, to assign to any decision. They are not bound by a constitution, but only their own idea of "reasonableness," which has no legal definition in Israel, so they can literally require the country to not do anything they don't like. Not only are they not elected, but they are simply selected, without any need for confirmation by anyone. Who selects them? A committee composed of mostly sitting members of the court. So they literally select their own successors, which is the final power of a traditional monarchy. American legal scholars have marvelled at the current powers of the Israeli Supreme Court, which are more than those of any other national court on Earth. The court has always been reliably and strongly liberal (remember, they choose their own successors), so it should be perfectly unsurprising that a conservative government would try to change things, and also that the liberal minority, who has always been able to count on the court to make things go their way, should be upset about it.

The reason why both views sound reasonable is because they are both true.