The Court helped to change entrenched social norms of violence against women by establishing that sexual contact requires explicit consent and confirming the conviction of the eighth President of Israel in rape, and broke the glass ceiling of combat roles qualifications for women in the IDF by forcing the Israeli air force to admit women to pilot training courses. To mention only a few of those, the Supreme Court has prohibited the Shin Bet to use torture techniques in the investigation of suspected terrorists, banned the use of Palestinians as human shields, and ordered the army to reroute the Separation Barrier in the West Bank splitting villages in the West Bank from its farmland. Granted, the Court has an impressive record of groundbreaking case law protecting the individual rights of women, ethnic, religious, and sexual minorities, migrants, and refugees against state incursion. Tackling these problems and nurturing the capacity to distinguish democratic norms from populist ideology is a more promising path away from authoritarianism than the fortification of the Israel Supreme Court. In fact, they played a crucial role in mobilizing the support for the judicial overhaul among Netanyahu’s supporters.
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For instance, the continuous erosion of democratic public education, attacks upon the free press, chewing away the independence of law enforcement agencies, and other such efforts to reduce the voters’ democratic literacy pose a concrete threat to the rule of law and to constitutional guarantees of individual freedoms. The role of the Supreme Court in the growth of Israel’s democracy has been of a reinforcing, rather than constitutive nature so was its contribution to the government’s previous authoritarian adventures.Īt the same time, other alarming anti-democratic campaigns that do not directly concern the powers of the Supreme Court and are less straightforward to expound, do not receive the same attention in the anti-overhaul camp. Nor has it ever seriously tackled the state’s structural mechanisms of discrimination, sufficing with occasional patches over oppressive practices. Despite its common depiction as the last bastion of the liberal elites in the country and international reputation as a strong defender of human rights, the Court has rarely attempted to stand in the way of the regime’s most acute atrocities. Given its past rulings and when keeping in mind the conservative nature of the institution of the Israeli judiciary, it is safe to say that the Israel Supreme Court will not be able to salvage the country from a democratic backsliding driven by a determined executive. Unfortunately, this confidence is both unfounded and likely to sabotage the anti-reform movement. Tens of thousands of liberals and conservatives rally around this institution, if not around anything else, confident that the Court is capable of preventing the government from irreversibly breaching the democratic walls. In view of the reform’s planned assault on the independence of the Supreme Court, it is no surprise that the Court has become a major mobilizing source for the weekly mass protests against the reform that have been taking place in the last six months in many Israeli towns.
On the other side of the constitutional wall are those alarmed that the constitutional overhaul is leading Israel’s brittle democracy down the Hungarian and Polish paths toward an authoritarian regime ruled by a de facto unchecked government. The next steps in the government’s program may still include politicization of the judge selection committee and another constitutional amendment allowing the Knesset to override rulings that declare legislation unconstitutional on human rights grounds.
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On September 12, the Court will hear the petitions against this amendment, having to defend its own prerogatives in an unprecedented full quorum of 15 Justices. In late July, PM Netanyahu’s coalition made the first gaping hole in Israel’s fragile judicial system by amending the Basic Law: The Judiciary (one of the regime’s constitutional norms) so as to prohibit the Supreme Court from using the “reasonableness” doctrine when reviewing executive decisions. Hasty constitutional reforms aggressively advanced by the Netanyahu far-right government since the last elections in November 2022 portray the Court as the main hurdle on the way to “ restore the governability” of the Israeli executive.
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