Explicating the Legislation and Constitutional Crisis Underlying the “Israeli Spring”

For the past several months, hundreds of thousands of Israelis have flooded the streets in protest. Donning Israeli flags, Handmaid’s Tale costumes, and signs decrying the end of Israeli democracy, these protestors have drawn international attention to what has been entitled the “Israeli Spring.”

In November 2022, Benjamin Netanyahu returned to the Israeli prime ministership, ushering in a radical, far-right parliamentary majority. The implications of this new makeup of the Knesset, Israel’s unicameral legislative body, were swift, as the majority took little time to begin passing their legislative agenda. A central piece of the right-wing coalition’s platform is encompassed in a series of bills, which have drawn international ire and outrage. If actuated, these bills would strip power away from the judicial system and transfer it to the ruling Knesset majority. This could place untested and unrestrained power in the hands of this extreme Knesset leadership, putting the rights and freedoms of Israelis at risk. Moreover, this kind of legislative action has illuminated how the utter absence of a robust Constitutional system laid the groundwork for this attack on Israeli democracy.

These bills operate through three main mechanisms, each designed to disempower the Israeli Supreme Court, called the High Court, and cede unchecked power to the Knesset. The first pillar of this legislation is the “override clause,” which would allow the legislative branch to overturn any High Court decisions. The vote of a simple majority—61 out of 120 seats—in the Knesset could entirely nullify High Court rulings. Consequently, the High Court would have essentially no power to deem laws passed by the Knesset unconstitutional. Moreover, these laws would remove the High Court’s ability to judge government action and appointments on the grounds of “unreasonability.” In Israeli law, this concept of “reasonability” refers to general ethical standards, such as the recent ruling that the appointing of a minister with a record of criminal conviction was “unreasonable.” Eliminating the role of the High Court as a check on government “reasonability” has particularly biting implications in a government headed by a prime minister currently on trial for fraud.

Simultaneously, this proposed legislation would bar the High Court from overturning any of Israel’s constitutional provisions, called the Basic Laws. While this endeavor is not, on its face, dangerous, it is essential to note that the Basic Laws do not clearly outline how passage of a Basic Law is distinguished from other legislation. While, in the United States, passage of a Constitutional amendment requires approval from a Congressional supermajority and ratification from three-fourths of states, Israel requires no such higher level of agreement. Thus, the Knesset majority could conceivably categorize their legislative agenda as “Basic,” thus shielding it from judicial oversight.

The third central piece of this legislation pertains to judicial appointments, directly destabilizing any form of an independent judiciary. Currently, Israeli judges are appointed by the nine-member Judicial Selection Committee, which consists of the Minister of Justice and representatives from the High Court, cabinet, Knesset (including the opposition), and Israeli Bar Association. Yet this legislation would replace the Israeli Bar Association individuals with representatives selected by the Justice Minister. This exchange of independent actors for those connected to the ruling majority would give the sitting government five out of nine Judicial Selection Committee seats.

Though not the full extent of the changes enacted by these bills, the aforementioned provisions would transform the relationship between the judicial and legislative branches. While not yet codified, these bills have moved through the preliminary votes required for eventual passage on the Knesset floor. Despite multiple calls for reevaluating these proposals and making them less extreme, including by Israeli President Isaac Herzog, the Netanyahu government has repeatedly rebuffed these efforts. Though, the level of both national and international outrage could compel Netanyahu to marginally moderate this legislation. Even if Netanyahu acquiesces and softens the blow of these bills, however, the underlying fragility of Israeli democracy remains.

Particularly in reference to cases like Dobbs v. Jackson Women's Health or New York State Rifle and Pistol Association v. Bruen, much American legal critique concerns overly stringent, textualist interpretations of the Constitution. American conservatives advocate taking each word of the Constitution as gospel, while liberals take a loose-constructionist approach that contextualizes the Constitution in the modern day. However, these conservative and liberal legal disputes are brought together by their unity on the value and import of the American Constitution. This American legal outlook is remarkably different from that of Israeli legislators, who have sought to altogether reframe the power and function of the Basic Laws.

These efforts have elucidated the urgent constitutional crisis that Israelis have heretofore been able to ignore. Particularly with an extremist governing majority and a prime minister currently on trial for fraud, the near incapacitation of the High Court presents innumerable threats to Israeli democracy and human rights. While the Israeli right has threatened a weakening of the courts for many years, the actualization of this plan has engendered massive public outcry and political pressure. Larger questions should be raised regarding the weaknesses endemic to a democracy whose supposed heart and soul, its constitution, proves fragile and ineffectual.

Jesse Eick is a freshman concentrating in International & Public Affairs and History. She is a staff writer for the Brown Undergraduate Law Review and can be contacted at jesse_eick@brown.edu.