2023 Israeli Judicial Reform

Israel’s constitutional framework provided the institutional setting for the reform initiative: the country had no completed formal constitution, and the 1950 Harari Resolution envisaged constructing one through separate Basic Laws.[1] The Knesset could generally adopt or amend those laws by a simple majority, while the Supreme Court had recognized its authority to review and repeal ordinary legislation conflicting with the Basic Laws on Freedom of Occupation and Human Dignity and Liberty.[1] The legislative and executive branches were institutionally aligned through Israel’s parliamentary system, making the judiciary’s relationship with the governing majority central to the dispute over institutional checks.[5]

The existing judicial appointments system distributed membership among judges, elected officials, and the legal profession.[1] Its nine-member selection committee included the Supreme Court president and two other Supreme Court justices, two government ministers, two Knesset members, and two Israel Bar Association representatives.[1] Appointment of a Supreme Court justice required seven votes, obliging candidates to secure support beyond any single component of the committee.[6] The reform proposals targeted both the committee’s composition and the voting threshold, alongside the seniority system used to select the Supreme Court president.[1]

Ministerial legal advisers were another part of the existing institutional structure that the government sought to change.[1] They were nonpolitical civil-service appointees selected through Civil Service Commission tenders, professionally subordinate to the attorney general, and their legal opinions bound ministry management.[1] Supporters of changing this arrangement maintained that advisers could obstruct ministerial initiatives they considered legally or constitutionally unacceptable, producing disputes and difficulties within ministries.[1] Opponents regarded the advisers, and particularly the attorney general, as rule-of-law gatekeepers.[1]

The reasonableness doctrine concerned administrative decisions rather than legislation.[4] Rooted in British law and developed through Israeli judicial rulings rather than a specific statute, it enabled courts to review decisions that were extremely unreasonable or failed to give appropriate consideration and weight to relevant factors.[4] Its applications included executive orders, cabinet decisions, ministerial approvals, and municipal planning and zoning decisions.[6] The proposed override mechanism, by contrast, concerned legislation invalidated by the Supreme Court; it was a separate issue from the administrative-law reasonableness standard.[1]

Earlier reasonableness cases illustrated the range of administrative decisions subject to judicial scrutiny.[4] In 1987, the court considered a decision delaying approval of a Jerusalem stadium plan, and in 2007 it invalidated a defense minister’s decision not to shield some school classrooms in Sderot against rocket danger.[4] On January 18, 2023, as the reform initiative was getting under way, the court voided Aryeh Deri’s appointment as interior and health minister.[4] Most justices considered his multiple convictions and latest sentence to make the appointment extremely unreasonable, while some relied on estoppel arising from statements he had made during sentencing.[4]

The newly formed government’s coalition agreements included commitments to strengthen governance and the government’s ability to implement its policies.[1] Levin and other proponents maintained that the Supreme Court had exceeded its authority and impeded elected governments.[1] Supporters also argued that legal professionals exercised excessive influence over judicial appointments.[5] Critics, including some who accepted the need for judicial reform, maintained that the proposed redistribution of power went too far toward the government and would weaken judicial checks and human-rights protections.[6]

In early January 2023, Justice Minister Yariv Levin presented the first stage of a judicial reform program centered on judicial appointments, judicial review and an override mechanism, reasonableness, and ministerial legal advisers.[1] He framed the program as intended to strengthen democracy and rebalance the branches of government.[1] The proposed changes to legal advisers remained unenacted in 2023.[1]

Levin’s initial appointments outline proposed replacing the Judicial Selection Committee’s two Bar Association representatives with two public representatives chosen by the justice minister.[1] It also envisaged public hearings for Supreme Court candidates before the Knesset Constitution Committee.[7] Another early version envisaged an 11-member committee comprising three ministers, two coalition lawmakers, one opposition lawmaker, two public representatives appointed by the justice minister, and three judges.[1] That version would have removed the seven-vote requirement for Supreme Court appointments and given coalition politicians a committee majority.[1]

The initial judicial-review proposals would have barred the High Court from considering or ruling against Basic Laws and required a full panel of 15 justices, together with a special majority, to invalidate ordinary Knesset legislation.[1] The Knesset would have been able to reenact an invalidated law with 61 votes out of its 120 members.[1] Levin said that legislation invalidated unanimously by all 15 justices could not be reenacted during the same Knesset term.[7] The override mechanism was distinct from a proposal formally authorizing Supreme Court review of statutes.[1]

Versions of the package changed as the legislative process continued.[1] A March account of the bills described a requirement that 12 of the 15 Supreme Court justices support invalidating a law, with the full bench hearing the case.[6] It also described a mechanism through which legislation containing an immunity clause could be shielded from judicial review if passed with at least 61 votes.[6] These were proposals moving through preliminary or committee stages, not provisions that had already become law.[6]

The proposed legal-adviser changes would have allowed ministers to choose and dismiss their advisers as personal appointments, replacing the existing civil-service arrangement.[1] The initial program also sought to make advisers’ opinions nonbinding on ministries.[8] Levin argued that advisers should represent the government rather than an independent position and that the government should not be subordinate to an unelected tier.[8] This component remained a proposal rather than a change enacted in 2023.[1]

Legislative advancement began amid increasingly large demonstrations.[9] On February 13, the Knesset Constitution, Law and Justice Committee approved changes to the judicial-selection committee by nine votes to seven, and separately approved a prohibition on Supreme Court invalidation of Basic Laws by the same margin.[10] The judicial-selection amendment then proceeded toward its first reading in the Knesset plenum.[10] On February 20, first-reading amendments dealing with judicial selection and Basic Laws received 63 votes in favor and 47 against, with Yisrael Beitenu boycotting the vote.[11]

The February judicial-selection version provided for a nine-member committee with five coalition members, three judges, and one opposition member, without a special majority requirement for appointments.[11] By March, the appointments bill had passed its first reading and was being prepared for further readings; a contemporary description identified a reduction in the Supreme Court appointment threshold from seven votes to five.[6] A later version forwarded for further readings on March 27 instead envisaged an 11-member committee with six government-bloc representatives.[1] None of these legislative stages amounted to enactment of the appointments changes in 2023.[1]

President Isaac Herzog sought a negotiated alternative while the proposals advanced.[12] His February compromise principles called for a Basic Law on legislation defining the relationship between the Knesset and the courts, four readings for Basic Laws, and an end to Supreme Court annulment of Basic Laws.[12] They also addressed judicial selection, a narrower reasonableness test, increased judicial staffing, and improved efficiency.[12] Herzog recognized concerns about the proposed reform’s effect on democratic principles while also acknowledging that some Israelis believed an imbalance had developed between the branches.[12]

For appointments, Herzog proposed equal representation for the executive, Knesset, and judiciary, including opposition lawmakers and public representatives selected by agreement between the justice minister and Supreme Court president.[12] He favored retaining reasonableness review in limited cases of extreme unreasonableness and distinguishing between decisions made by elected and appointed officials.[12] He also cited a ratio of judges to population approximately one-third that of other OECD countries and called for measures to reduce court delays.[12]

On March 15, Herzog presented a more detailed compromise framework.[1] It proposed four readings and support from 80 Knesset members for Basic Laws, recognized Supreme Court review of ordinary legislation, and provided for a coalition majority on the judicial appointments committee while requiring additional support for its Supreme Court candidates.[1] The framework also addressed rights protections, reasonableness, and legal advisers.[1] Herzog presented it as a connected package of balances, but the coalition government rejected it.[1]

Opposition to the initiative developed into repeated nationwide demonstrations.[9] By the eleventh consecutive Saturday of protests in March, a crowd estimate put participation above 260,000 nationwide, including 175,000 in Tel Aviv.[9] Economists, legal professionals, academics, and security officials also issued warnings about the proposals.[9] During the first five months, hundreds of thousands attended weekend demonstrations in Tel Aviv and other major cities, protesting both the judicial changes and other aspects of the government.[5]

The confrontation intensified after Defense Minister Yoav Gallant called for a legislative pause, citing security concerns.[5] On March 26, less than a day after Gallant’s appeal, Prime Minister Benjamin Netanyahu announced that Gallant would be dismissed.[5] The announcement was followed by large demonstrations and a strike joined by the country’s largest labor union and other groups, affecting transportation, schools, and public services.[5] Gallant had warned that the national rift endangered Israel Defense Forces readiness and Israel’s security.[13]

The Histadrut’s general-strike call was accompanied by a halt to takeoffs at Ben Gurion Airport, while businesses, banks, and local authorities joined the stoppage.[13] On March 27, Netanyahu announced a pause in the judicial-selection bill’s second and third readings until the next Knesset session, describing the suspension as time for dialogue and broad agreement while insisting that judicial changes would still be pursued.[14] Opposition leaders Benny Gantz and Yair Lapid agreed to talks under Herzog’s auspices, and Histadrut secretary general Arnon Bar-David called off the general strike after the announcement.[14]

Demonstrations declined after the legislative freeze and the opening of negotiations at the president’s residence, then increased again after negotiations failed and legislation restricting reasonableness review advanced.[2] In June, four government members unexpectedly voted against a proposal concerning the judicial-selection committee, after which the opposition selected its representative.[6] By the end of the summer session, the government had brought the reasonableness measure, rather than the entire original package, to a final vote.[15]

On July 24, the Knesset adopted Basic Law: The Judiciary (Amendment No. 3), prohibiting courts from considering the reasonableness of decisions by the government, prime minister, or any minister, or issuing orders on that basis.[4] The amendment expressly included appointments and decisions not to exercise authority.[4] It covered these government and ministerial administrative decisions rather than abolishing reasonableness review of every administrative decision.[4] All 64 coalition members present voted in favor; opposition lawmakers boycotted the vote, producing a 64–0 result.[3]

Negotiations over a possible compromise continued until the last minute before passage.[3] Levin said the enacted measure was not his original January proposal and had followed months of public discussion.[16] Finance Minister Bezalel Smotrich described its passage as the beginning of fixing the justice system and restoring institutional balance, while Lapid described it as the beginning of the cancellation of checks and balances and separation of powers.[6] Committee chair Simcha Rothman maintained that the change would not harm minorities and that review on grounds such as extraneous considerations remained available.[16]

Across the first eight months, 1,816 demonstrations against the initiative took place in approximately 200 locations, compared with about 70 demonstrations supporting the government and its program.[2] Reported participation estimates exceeded 7 million using police figures and 10 million using protest-movement figures; these were cumulative attendances across demonstrations, not counts of distinct individuals.[2] Incidents of violence were recorded at 3.2 percent of demonstrations against the overhaul.[2] Weekly mass protests involving hundreds of thousands continued from January through September, and opponents announced that they would refuse to volunteer for IDF reserve service.[17]

Police conduct also became a subject of dispute.[18] Protest groups reported the use of stun and smoke grenades, skunk water, water cannons, horses, and physical force, while police officials said disorderly conduct by some demonstrators required dispersal.[18] On March 1, an officer was filmed throwing a stun grenade toward peaceful protesters, and a Tel Aviv hospital treated 11 people injured that day.[18] The Justice Ministry’s Police Investigation Department opened an investigation the following day.[18]

Public-opinion surveys recorded both opposition to the measures and support for compromise.[19] A July poll found 43 percent opposed the reasonableness legislation, 31 percent supported it, and the rest were undecided; polling more generally showed greater support for compromise than for the government’s specific measures.[19] In September, 51 percent of Peace Index respondents opposed the judicial changes, 37 percent supported them, and approximately 12 percent did not know their position.[20] Support was concentrated among coalition voters and respondents identifying as right-wing on security issues, while opposition was clear among opposition voters and those identifying as center or left on security issues.[20]

Opponents did not agree on the protest movement’s broader agenda.[20] Jewish and Arab respondents opposing the legislation agreed that protests should also address the government’s handling of violence in Arab society.[20] Jewish respondents favored including equal military or national-service recruitment, while Arab respondents were divided.[20] Most Arab respondents wanted the movement to address the conflict and control over Palestinians, whereas Jewish respondents were hesitant and divided on that subject.[20]

Eight petitions challenging the reasonableness amendment were scheduled for consideration by the Supreme Court’s full 15-justice panel.[21] Petitioners included the Israel Bar Association, the Movement for Quality Government in Israel, businesspeople, former senior security-service officers, social activists, lawyers, and reserve colonels.[21] They argued that abolishing the standard abused the Knesset’s constituent authority and exempted ministers from the obligation to exercise their powers reasonably.[21] Attorney General Gali Baharav-Miara supported invalidating the amendment, while the government, Knesset, and Rothman argued that the court lacked authority to do so or should decline to exercise such authority.[22]

On September 12, 2023, all 15 Supreme Court justices sat together for the first time in the court’s history to hear the challenge in a session lasting approximately 13 hours.[23] The litigation addressed both the amendment’s effects on democratic principles and alleged defects in its legislative process.[23] Petitioners argued that the process had been rushed and had given committee members insufficient opportunity to hear experts or influence the text.[23] The government and Knesset disputed this description, maintaining that extensive discussions and expert input had occurred and that any procedural flaws did not justify invalidation.[23]

The parties also disagreed about the availability of alternative grounds for administrative review.[23] Petitioners and the attorney general regarded reasonableness as an important residual safeguard, particularly where evidence needed to establish another ground was difficult to obtain.[23] The government argued that the doctrine’s Israeli application was unusually broad and that the amendment restricted one aspect of administrative review without eliminating judicial oversight altogether.[23] The ruling remained pending at the end of 2023.[17]

On January 1, 2024, the High Court invalidated Amendment No. 3 by eight votes to seven.[4] In a separate determination within the decision, a 12–3 majority recognized authority to review Basic Laws and intervene in exceptional and extreme cases where the Knesset exceeded its constituent authority.[4] The majority invalidating this amendment held that its sweeping removal of reasonableness review for government and ministerial decisions caused severe and unprecedented harm to Israel’s core characteristics as a democratic state.[4] This was the first time the court had annulled a provision of a Basic Law.[22]

The justices differed both over the court’s authority and over the appropriate disposition of the amendment.[4] Some favored a narrow interpretation instead of invalidation, while others rejected judicial authority to review Basic Laws.[4] Justice David Mintz maintained that the court lacked authority to invalidate a Basic Law and criticized the majority’s doctrine for lacking a defined formula.[4] Other justices who opposed striking down the amendment accepted some review authority but reasoned that a narrower reading and the continued availability of other legal grounds could preserve judicial oversight.[4]

Following invalidation, reasonableness review remained applicable to decisions by the government and ministers.[24] Justices Yael Willner and Gila Canfy-Steinitz favored upholding the amendment in a reduced form, while Mintz and Noam Sohlberg took the position that the court lacked authority to intervene in this way.[24] The ruling addressed the enacted reasonableness provision, not the entire original reform program.[4] Netanyahu’s coalition was not planning an immediate countermove while Israel was at war, as reported in early January 2024.[25]

The reform initiative linked several distinct institutional questions: who should appoint judges, how courts should review legislation, whether the Knesset should be able to override judicial rulings, and how legal advisers should relate to ministers.[1] Only the reasonableness amendment from the original package had become law by the January 2024 judgment, and the court’s decision invalidated that enacted component.[4] The distinction between the original program, successive legislative drafts, and the narrower enacted measure is therefore essential to describing the initiative’s outcome.[1][4]

The central political disagreement concerned whether shifting authority toward elected officials would restore democratic accountability or undermine the checks necessary to preserve it.[6] Supporters characterized the program as a response to judicial overreach and excessive professional influence, while opponents warned that its combined effects would compromise judicial independence and protections against government abuse.[5][6] Supreme Court President Esther Hayut warned that the plan would “crush the justice system [and] deal a fatal blow to the independence of the judiciary.”[1] Supporters, in contrast, maintained that elected representatives needed greater capacity to carry out policies backed by voters.[1]

Legal commentary offered sharply different interpretations of the initiative’s historical meaning.[26][27] Writing in SAPIR Journal, law professor Avi Bell argued that reform would limit or reverse disputed developments associated with the Supreme Court under Aharon Barak, including its judicial-review role and the authority of government legal advisers.[26] He presented the appointments changes as a rebalancing that would reduce what he called a judicial veto and increase elected officials’ influence.[26] A September 2023 article in Israel Studies instead interpreted the initiative as part of a broader effort to change the regime and legal policies, while arguing that such an agenda was not inherent to right-wing ideology.[27]

Interpretations of the protest movement’s influence also differed.[15] The Jewish Review of Books argued that the government’s retreat reflected multiple pressures: demonstrations, reservists’ threats to stop reporting, business warnings, capital outflows, a falling shekel, possible credit-rating concerns, foreign-government reactions, and signs of declining support among some Likud voters.[15] Its account portrayed many participants as secular Israelis spanning generations, often with little prior political involvement, and characterized the parliamentary opposition as playing little organizing role.[15] These were the publication’s interpretations of the movement and its effects rather than judicial findings.[15]

The reasonableness debate remained a concentrated expression of the wider disagreement over judicial power.[19] Supporters of restriction emphasized the elected government’s mandate and the continued availability of proportionality, anti-discrimination, conflict-of-interest, and good-faith review.[19] Opponents emphasized protection of uncodified rights and safeguards against corruption and malfeasance.[19] The January 2024 judgment made the Supreme Court’s own authority over Basic Laws an explicit constitutional issue, while its narrow 8–7 outcome demonstrated the depth of disagreement over the amendment even within the judiciary.[4]