Israel's Opposition Weighs Options After Judicial Overhaul: Live ...

Mr. Netanyahu, fresh from receiving a pacemaker over the weekend, delivered a televised address on Monday evening in which he suggested he might pause the broader judicial overhaul until late November. His message, however, failed to quell the public unrest. Well past midnight, protesters flooded the streets of Jerusalem, Tel Aviv and other cities across the country, chanting for democracy, burning tires and facing down police forces firing water cannons.

Sporadic clashes broke out between the government’s critics and supporters, with one driver running down at least three protesters who tried to block a major highway.

How the escalating political crisis might be resolved remains unclear. Opposition activists said they had already asked Israel’s Supreme Court to review the law limiting its powers. A decision could take months, but the case would set up a crisis among the branches of the Israeli government. In the meantime, the country’s largest union has threatened to declare a general strike. Labor strikes in March helped push Mr. Netanyahu to suspend some of his overhaul plans.

Here’s what else to know:

The Israeli Medical Association, which represents 97 percent of Israel’s doctors, declared a strike in much of the country for Tuesday. The union said its members would handle only emergencies and critical care needs outside of Jerusalem.

Israel’s nationalist right celebrated the law’s passage. “From today, Israel will be a little more democratic, a little more Jewish, and we will be able to do more in our offices,” the ultranationalist minister Itamar Ben-Gvir told reporters on Monday. “With God’s help, this will be just be the beginning.”

The White House called the law’s passage with “the slimmest possible majority” an “unfortunate” development. In a statement, the White House press secretary, Karine Jean-Pierre, said that the United States supported Israeli leaders efforts “to build a broader consensus through political dialogue.”

Sandra Cohen said the front pages of Israel's major newspapers matched her mood this morning. Four of the nation's largest papers published covers that were mostly black and feature no stories. She isn’t sure what to make of the judicial overhal law, but she’s also frustrated with the disruption and roadblocks created by the protesters.

“It feels like anarchy — like they’re totally trashing their own country,” Cohen said. “You want to go into the center of town but you don’t know if you can get back — if the buses are running or not. They’re talking about democracy — but they’re infringing on my democracy. Have they thought about that?”

The main protest movements were taking stock of the number of activists in police detention as well as the possible paths forward. The Black Flags movement, a grass-roots group, said that six people remained in custody. Several protesters were injured by police officers, the groups said. The police said overnight that 12 officers had been assaulted.

“Following last night’s events, you can be sure that we will not give up until we go back to living in a democracy,” the Black Flags group said in statement. Overnight, dozens of artists hung huge banners along a main Tel Aviv thoroughfare depicting raised fists. At the protesters’ tent city that sprang up over the weekend in a park below the Parliament and Supreme Court buildings in Jerusalem, the mood was subdued on Tuesday morning, activists said.

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The Supreme Court chief justice, Esther Hayut, has cut short a professional trip to Germany to address the crisis at home, a court spokesman confirmed Tuesday. They are expected to land tonight, a day earlier than planned.

Justice Hayut and five other judges on the court were in Berlin to celebrate Israel’s 75th anniversary with counterparts from the German judiciary — but decided to return home early after Monday’s vote. The court must decide in the coming weeks whether to block the law — potentially setting off a constitutional crisis.

Analysts said the court has essentially three choices: 1) strike down the law; 2) narrowly interpret it to curb its impact; or 3) simply not decide by refusing to hear any of the petitions.

The bill was passed by the Knesset, Israel’s Parliament, as part of a broad plan by Prime Minister Benjamin Netanyahu’s government to overhaul the judiciary by taking control of how judges are selected and eliminating the power of the courts to review certain cases.

The protesters say the bill, and the broader plan, are an attack on democracy because the courts are the primary check on the Knesset and the prime minister in Israel’s parliamentary system. Mr. Netanyahu and his allies defend the law as a protection of democracy, a necessary means of preventing judges from interfering with the decisions of elected lawmakers.

Any decision by the court — including a refusal to hear a challenge to the new law — has implications for the waves of protest, and counterprotest by the law’s supporters, engulfing the country.

“If the court dismisses the petitions, that could deflate the protests” against judicial overhaul, said Adam Shinar, a law professor at Reichman University in Herzliya, Israel. “But if the court acts against the government, that will inflame its critics. So you have all these strategic political considerations.”

Law and politics inevitably become entangled when a high court is faced with a serious challenge to its own authority, other analysts said.

“In these potentially revolutionary moments, it’s really unclear what courts should do,” said Kim Lane Scheppele, a sociologist at Princeton University. “There are two theories. One is that the court should strike back hard against the government. But this can risk confirming the perception that the court is out of control. So the other theory is that the court should be cautious and follow the law to show the criticism is exaggerated. And then maybe that makes the government back off.”

But in Israel the justices have never faced a challenge from the government like this one.

Monday’s bill says the court may no longer use the legal standard of “reasonableness” to overturn government decisions. It was enacted as an amendment to one of Israel’s Basic Laws, which the justices have never previously struck down.

Israel was founded in 1948 without a constitution. Ten years later, the Knesset began passing what are known as the Basic Laws, at first to set forth the powers of the country’s governing bodies. Originally, Basic Laws, which can be passed by a simple parliamentary majority, were not necessarily superior to other laws. Then in 1992, the Knesset passed a Basic Law that guaranteed dignity and liberty. Supreme Court Justice Aharon Barak, one of the country’s most influential jurists, proclaimed a “constitutional revolution,” and the court established the supremacy of the Basic Laws and gave judges more sway to interpret them.

Since then, the court has laid out paths for striking down a Basic Law without actually doing so, legal experts said. “For example, the court said that it could strike down a Basic Law if it impinges on the core nature of Israel as a Jewish and democratic state,” said Professor Shinar of Reichman University.

If the justices do not want to strike down a Basic Law now, they could narrowly interpret the limit on the reasonableness standard by using another standard they have developed — for example, that of “proportionality,” or evaluating the fit between the means and the ends of a statute and its costs and benefits.

“Proportionality is a balancing test,” said Rivka Weill, another law professor at Reichman University. She added: “It’s not like the government has taken away all the power of judicial review.”

The current petitions before the court challenge the law in the abstract, and so the judges could decline to hear those cases, and wait for a concrete case to accept for review. One such case could materialize if, as Mr. Netanyahu’s critics fear, the government tries to replace the attorney general, Gali Baharav-Miara, who is overseeing the prime minister’s prosecution in a continuing corruption case.

Mr. Netanyahu has denied any plan to disrupt his trial. But if the government removed Ms. Baharav-Miara, it would “cross a red line for the court,” Professor Weill said. So would passing the planned bill to give the government control over how judges are selected, she added.

“The court will not cave on judicial independence,” she said. Either scenario would give the court a vivid set of facts for considering the elimination of the reasonableness standard, which would be its usual tool for reviewing the dismissal of a government official or a change to Israel’s system of checks and balances.

Earlier this year, the court angered its critics by holding that it was not reasonable for Mr. Netanyahu to appoint Aryeh Deri, a longtime ultra-Orthodox politician, to his cabinet because Mr. Deri had recently been convicted of tax fraud.

“It’s hard to explain in a nontechnical fashion why what the prime minister did here is unreasonable,” said Professor Scheppele, the Princeton sociologist. “The word itself seems fuzzy from its ordinary use, even though it’s a clear and constrained doctrine that other countries like Britain also use. And you might ask, why should the courts tell Netanyahu who he can have in his government?”

In other countries, the check on a chief executive’s power to appoint the members of his cabinet would not come from the courts. In the United States, for example, the Senate has the power to confirm a president’s appointees.

But the comparison isn’t apt, Professor Scheppele said. Israel lacks the checks and balances of the American system. The country does not have two houses of Congress that can block each other, or a clear separation between the executive and legislative branches, or a federalist system of states or provinces that retain significant powers.

The fragile nature of Israel’s checks and balances explains why the stakes for judicial independence are so high in this controversy. It also means that the court can only do so much to preserve its own powers.

“You reach a point where judicial interpretation of the law runs out,” Professor Scheppele said. “A court can’t really fix what’s wrong by interpreting a Basic Law” if the government continues to undermine the court or tries to pack it with new judges. “When the threat is to the fabric of the democracy, you have to win an election and change the laws.”

“The new law was pushed through unilaterally by the governing coalition amid deepening divisions in Israeli society,” the American Jewish Committee said in a statement.

Prime Minister Benjamin Netanyahu’s governing coalition, the most right-wing in Israeli history, has clashed with President Biden’s administration. But it has also inflamed tensions with Jews in America, who tend to lean liberal and more secular. When the coalition’s hard-line finance minister, Bezalel Smotrich, visited Washington in March, many among the Jewish establishment — even some traditional pro-Israel conservatives — said they would boycott him.

American Jewish leaders have been warning for months that Mr. Netanyahu’s judicial plan could threaten Israel’s stability and democratic character. The community’s legacy institutions are rarely so publicly outspoken about domestic issues in Israel, which they say are often best left for Israelis to handle.

In February, the Jewish Federations of North America — a largely philanthropic body that normally avoids political involvement — sent an open letter to Mr. Netanyahu and the opposition leader Yair Lapid that denounced proposed elements of the judicial overhaul.

Even the more hawkish Conference of Presidents of Major American Jewish Organizations called Monday’s vote “heated and painful, raising concerns and questions throughout Israel and the diaspora.” The group called on Israel’s leaders “to seek compromise and unity.”

The American Israel Public Affairs Committee, a Washington-based organization that advocates pro-Israel U.S. government policies and is is widely known by the acronym AIPAC, declined to comment on the law’s passage.

The Israeli Medical Association, which represents 97 percent of Israel’s doctors, announced it would strike on Tuesday in much of the country in protest of Prime Minister Netanyahu’s decision to enact the first part of his coalition’s divisive judicial overhaul.

Members around the country will handle only emergencies and critical care for the day. The union exempted Jerusalem.

In Jerusalem, protesters exhorted the police to join them rather than obeying Israel’s ultranationalist minister of national security, Itamar Ben-Gvir, who has urged tougher law enforcement against protesters blocking roads. Officers used a water cannon there, too, to try to disperse protesters on the road outside of the Supreme Court.

After the first piece of the judicial overhaul package of legislation — a bill limiting how the Supreme Court can overrule the government — passed a final vote in Parliament on Monday afternoon, protest groups called on Israelis to come out into the streets wherever they were, and many did so.

Hundreds of thousands of citizens opposed to the judicial overhaul plan have participated in demonstrations in Tel Aviv and across the country on Saturday nights for 29 consecutive weeks. Days of “national disruption” have also taken place on several weekdays, with protesters flooding the international airport near Tel Aviv, gathering outside ministers’ homes and taking to the sea to block the port in Haifa.

On Saturday, a column of at least 20,000 people marched in scorching heat through the hills and into Jerusalem. Some had set out four days earlier, trekking about 40 miles from Tel Aviv.

Many camped out near Parliament. The numbers of protesters swelled after Monday’s vote.

Video footage showed a vehicle driving into a crowd blocking a highway in central Israel on Monday night, lightly wounding three people. The police said the driver had been arrested.

The police tried to remove protesters forcibly from various locations but were rebuffed.

One of the main grassroots protest groups complained of police violence, saying in a statement, “There is a direct line between the passage of the first dictatorial law and the ratcheting up of illegal police violence toward the protesters.”

“We will not be deterred,” the statement added. “We will continue our battle.”

“A part of our community believes that this government is just like previous ones and that our situation now is just as bad as it always was,” said Mohammad Osman, a 26-year-old political and social activist from Nahf, an Arab town in southern Israel. “But today, if the overhaul passes, we will be the first to be harmed.”

Mr. Osman also cited another possible reason for what he characterized as a lack of interest among the Palestinian community in the political turmoil: not enough awareness about the plan, despite its potential consequences extending deeper into their lives than they might think. He blamed this, in part, on the protest movement itself, which he said has failed to include Palestinian citizens of Israel.

“The protest organizers didn’t focus in their campaign on raising the Arab community’s awareness of the judicial overhaul plan, or even ask us to join them,” Mr. Osman said.

Adnan Jaber, a 28-year-old Palestinian from East Jerusalem, agreed. He said he was just as concerned as his Jewish counterparts with the ramifications of the judicial overhaul, but he didn’t feel like there was a place for people like him in the protests.

“It’s hard for a Palestinian to participate in a protest full of Israeli flags, and in which raising a Palestinian flag is unacceptable,” Mr. Jaber said.

The new legislation, passed by the governing coalition on Monday, bars justices from overruling the national government using the legal standard of “reasonableness.” The opposition leader Yair Lapid and others who have arrayed themselves against the judicial overhaul immediately declared they would urge the Israeli Supreme Court to strike down the law.

Unlike many Western democracies, Israel does not have a formal constitution. Instead, it has a series of quasi-constitutional laws, called Basic Laws, that enshrine fundamental protections for basic rights and define the relationship between branches of government.

The legislation enacted on Monday is an amendment to a Basic Law, and Israeli legal experts say that the Supreme Court has so far never struck one of these laws down. In a 2021 ruling, however, Chief Justice Esther Hayut said even Israel’s Parliament could not pass a Basic Law that annulled Israel’s Jewish or democratic nature.

Amir Fuchs, a constitutional expert at the Israel Democracy Institute, a nonpartisan research group, said: “This law gravely damages the separation of powers, it removes a key check on government power. There’s a strong case to be made that it’s an ‘unconstitutional constitutional amendment.’”

Mr. Netanyahu’s government, the most right-wing and religiously conservative in Israel’s history, would then have to decide whether to obey the court’s authority. Yariv Levin, the coalition’s justice minister and a member of Mr. Netanyahu’s Likud party, told an Israeli news station in late March that the court would be “crossing every red line” if it struck down the overhaul legislation and that “we would not accept that.” At least one other senior member of Mr. Netanyahu’s party said at the time he would respect the justices’ decision.

If Israel’s Supreme Court takes on the case, it might take months to issue a verdict. But the dangerous crossroads might be just around the corner, Dr. Fuchs warned, if the justices decide to issue a preliminary injunction barring the newly-minted law from going into effect before the court rules.

On Monday, Israel’s coalition government — led by Prime Minister Benjamin Netanyahu — passed a law circumscribing the courts’ ability to exercise judicial review over government decisions on the grounds of “reasonableness.” The plan is the first part of a series of moves that critics say will severely harm Israeli democracy.

Many on Israel’s right say Israel’s Supreme Court is staffed by activist judges who have tied the hands of elected leaders. Right-wing voters commonly say they “vote for the right and get the left” and blame the courts for striking down popular policies.

Rafi Sharbatov, 38, who voted for Mr. Ben-Gvir, the minister of national security, said he supported increased building in Israeli settlements in the West Bank and harsher measures to crack down on rising crime. A weakened court would allow Mr. Ben-Gvir to fulfill such campaign promises, he said.

Some nationalist voters feared the coalition would make a last-minute compromise to water down the proposed law because of the opposition against it. For Arnon Segal, a right-wing activist in Jerusalem, the law’s passage came as a relief.

“The right had to show everyone that it could act decisively,” said Mr. Segal. “Even though we’ve had right-wing governments in power for years, the right didn’t stand up for itself against the real powers here.”

A settler leader, Bezalel Smotrich, the coalition’s hardline finance minister, called the law “historic” and said that it would “restore, with God’s help, more proper checks and balances between the Knesset, the government and the justice system.”

The right’s victory in Parliament, however, was dimmed somewhat by the rapidly spiraling political crisis prompted by the legislation. Israelis have demonstrated for months against the judicial overhaul and scores of Israeli reservists, from intelligence officers to key Air Force pilots, have vowed not to serve if the legislation passed.

“I want to tell my compatriots who oppose the legislation: we understand your concerns, your pain, and do not take them lightly,” Mr. Smotrich said. But he added: “We were elected and we need to fulfill the mandate we received, although it can be done through conversation and dialogue.”

Some of Mr. Smotrich’s voters urged their leadership not to concede anything to the demonstrators. Dan Odenheimer, 67, who is from the West Bank settlement of Efrat, said the overhaul’s opponents were using “blackmail to seize control of the country through violent protests.”

“It’s part of a wider plan to bring down the government,” Dr. Odenheimer said. “It’s not just about the law that they’re voting on today.”

That bill was prepared for final voting and could technically be passed at any time. But it has been suspended for the moment, and the government is unlikely to try to pass it before the summer recess.

Some opponents of the new law said they have petitioned the Supreme Court to review it, and if the judges decide to take it up, the process could take weeks if not months.

Monday’s legislation is an amendment to a Basic Law — part of a body of laws that have quasi-constitutional status in Israel — and Israeli analysts say that the Supreme Court has so far never intervened in or struck down a Basic Law. The high court has discussed such laws in the past but never ruled on them.

“We have completed the first step in our historic, important process of fixing the justice system,” said the minister, a senior member of Prime Minister Benjamin Netanyahu’s Likud party and a key architect of the government’s judicial plan. He called this “an extraordinary moment.”

Mr. Levin has long advocated upending the balance of power between courts and Parliament. He accused judges of seizing too much power from elected officials, effectively tying their hands.

Monday’s law would help “restore the powers that were taken from the government and the Knesset over many years,” he said.

Mr. Levin announced the judicial plan in January, setting off a political crisis that has deepened longstanding rifts in the society. Protesters have singled him out for particular ire, accusing him of pushing Israel toward authoritarianism.

In his speech, Mr. Levin urged the opposition to utilize an upcoming summer recess to reach a compromise with the coalition on the rest of the judicial overhaul.

“Let us use the recess to come to understandings,” he urged. “It may not be in everyone’s political interest, but it’s certainly in the national interest.”

To its critics, the Supreme Court is seen as the last bastion of the secular, centrist elite, descended from European Jewry that dominated the state during its earliest decades. Religious Jews, particularly the ultra-Orthodox, perceive the court as an obstacle to their ultraconservative way of life.

The court has often opposed certain privileges and financial subsidies for the ultra-Orthodox. In particular, the court rejected a special dispensation that allowed ultra-Orthodox Jews to postpone military service in favor of religious study, infuriating religious leaders.

Right-wing Israelis who want to entrench Israeli settlement in the occupied West Bank also see the court as an antagonist.

Though the court has not obstructed most settlement in the territory, it has blocked some of the settler movement’s most ambitious goals — including the construction of Israeli towns on privately owned Palestinian land. The court also supported the eviction of all Israeli settlers from Gaza in 2005 — a pivotal moment that cemented the settler leadership’s desire for a judicial overhaul.

Jews of Middle Eastern backgrounds also feel underrepresented on the court, which has mostly been staffed by judges of European descent. Ethnic divides among Israeli Jews have narrowed over the years, as many Middle Eastern Jews — known as Mizrahim — have played increasingly important roles in society and government. But some perceived inequities remain, and the court has become emblematic of those tensions.