January 4th, 2024 - 12th Report: The Court

 

January 4^th, 2024

Dear family and friends,

Report number 12: The Court

 

A year ago today, on January 4^th 2023, Yariv Levin, newly sworn in justice minister in Netanyahu’s week-old government, made a speech. He announced a raft of legislation to change the relations between the legislative and judicial branches of government. His goal was to limit the independence and power of the judges. This launched the largest and most sustained anti-government protests in Israel’s history, and brought society closer than it had ever been to an irreparable schism. We never descended into intracommunal violence, but other than that, we seemed on the edge of civil war. As the clash between the camps worsened, most of us assumed that eventually the Supreme Court would strike down the legislation the government was promoting, which would cause a full-blown constitutional crisis. No one – but no one – had any idea how we would return from there to normality.

On January 1^st 2024 the Supreme Court struck down the legislation. We gave a collective yawn.

Folks who tell you they know what the future holds, don’t.

The Original Sin that caused the convulsions of 2023 was our early decision to wing our national conduct rather than write a constitution. Our Declaration of Independence mentioned a constitution, but then two groups objected. The orthodox parties said the Torah is our constitution, and forbade creating a potentially competing document; and David Ben-Gurion, our almost mythical-sized leader, decided a constitution would hamper his style. He bequeathed us a number of large time bombs, but none as consequential as his cavalier attitude to rules of national conduct. Yet it took decades for this to become apparent. It turns out that so long as there’s a broad national consensus about the purpose of the country or at least a tolerance for ideological diversity, democratic principles alone can suffice for quite a while. Until things change.

Much of the change was incremental and slow, and happened on at least four tracks.

First, the Ultraorthodox (Haredi) communities. Their commitment to democracy is transactional. A centerpiece of their position is that they mustn’t be interfered with. They don’t school their children about the outside world and certainly don’t train them to participate in the general economy. Their participation in the labor force is mostly in jobs within their own community, such as teaching, which is paid for from the national budget. Haredi women have been moving into the broader workforce for a while, and especially into the lower level of technology which can be a value-neutral vocation, but even there, given their very large families, most of them don’t climb the professional ladder. Most of the Haredi don’t serve in the army. They emphatically do not teach their children, or themselves, the principles of democracy. They abhor the drift of secular society in progressive directions, and are fiercely critical of the courts which have been at the vanguard of the drift.

Since the Haredi are the fastest growing segment of society, and currently make up about 15% of the population, and considerably more of the youngest generation, we’re on track for a major societal clash in 15-25 years.

When eventually other forces decided to change the rules, initially by attacking the judicial system, the Haredi went along gleefully. Yet as our resistance stiffened, they began having second thoughts. They’ve been against the judicial system forever, and run their own rabbinical courts, but as it became likely that the judicial coup might actually be causing so much political backlash that the ruling coalition might be in danger, they began distancing themselves. Better to have a coalition that ensures their autonomy and considerable budgetary gains, than an eviscerated judiciary that might leave them in the powerless opposition should the secular voters retake the government and seek revenge. They really dislike the judiciary, but not enough to endanger their autonomy which is paid for by other folks’ taxes. If the taxpayers insist on an independent judiciary, maybe the Haredi should let them keep it.

Who else doesn’t like the courts? The settlers and the far right, of course. The settlers dislike the courts which have insisted on maintaining a veneer of legality on settlement policy, meaning the settlement policy needs to progress through some hoops and over some hurdles. Settlers can’t simply drive up to a hill and build, much as they’d love to. I’ve dedicated considerable effort to studying the history of the settlement project over the past few years, and am trying to write an entire book about my findings, and this isn’t that book. In a nutshell however, there are all sorts of bureaucratic and legal stages the settlers must go through, and in some cases, these are so onerous, or so unsurmountable, that settlements or parts of them don’t get built. In rare cases, the courts have ordered the dismantling of settlements, and sometimes, when all delaying tactics fail, this even happens.

Never mind that the system is mostly built to assist the settlements, not obstruct them. For every case where the courts impede the expansion of settlements, there are multiple cases where they authorize them. The settlement project in its entirety enjoys the appearance of legality (in Israeli law) because it has repeatedly been tested in the courts. This appearance of legality even affects some of Israel’s international relations, by obscuring the extent to which international law is being disregarded.

There’s a second aversion to the courts in the far right, that stems from the perceived legal limitations to waging war. As none other than Minister of Justice Yariv Levin said, to a crowd of 200,000 pro-government demonstrators in April, “I need a court that doesn’t defend family members of terrorists”. (The crowd roared its approval. Harming the families of terrorists has occasionally been a line the court draws). It’s not often that a minister of justice in a democratically elected government publicly announces he can’t have the courts blocking war crimes, but there it is.

This strand of political discourse has been gaining traction for years. Long before October 7^th 2023, Palestinian terrorists have been committing blood-curdling crimes, blowing themselves up in restaurants and public busses, shooting or stabbing random civilians, and so on. Our enemies are seriously callous, and whatever wrongs we’ve committed – we’ve committed many – don’t justify their bloodthirst. Israelis who yearn for more mediaeval codes of war to beat them, aren’t operating in a vacuum.

The ironic thing is that Israel’s security forces aren’t clamoring for more powers of destruction. Their commanders don’t blame lawyers when they fail to supply perfect results. As a rule, the generals believe in complying with the laws of war, and accept their obligation to bring results within their confines. There was a famous case a few years ago when a young soldier shot and killed a wounded terrorist who was already on the ground. At the time Chief of Staff Gadi Eisenkot, whose son and nephew were recently killed in Gaza, insisted the killer be court martialed even as right-wing cabinet ministers demanded he get a medal. They also castigated Eisenkot for being a softie.

Given the large number of dead Gazan civilians, it’s fair to ask if this commitment to law-abiding is still strong. But today I’m writing about the forces in society that brought us to the clash of early 2023, long before October 7^th.

If the Haredi commitment to limiting the courts is long-standing but not overpowering, for Bezalel Smotrich’s settler camp, and and Itamar Ben Gvir’s vigilante camp, neutralizing the independence of the judiciary is essential. Yet neither political camp could have imposed their preference on the national agenda if it hadn’t been for two additional political camps. One is an intellectual group, mostly on the right but with strands on the far left. Let’s call it Second Israel.

Second Israel is an intellectual strand that will be familiar to Americans who talk about systemic racism. It’s the idea that the mostly-Ashkenazi elites (First Israel) cannot allow the mostly-mizrachi others their fair share of society’s bounties. Also, that the Ashkenazi elite insist on preserving their cultural norms and values, which tend to be secular and universal, while those of Second Israel are mostly Jewish and national. According to this school of thought, Second Israel is more numerous and wins elections, but the elites control the economy, academia, the media, and their main tool of ongoing oppression are the courts, which are full of their people.

I introduce two prominent intellectuals who’ve been seminal to this discussion.

58-year-old Gadi Taub teaches American history at the Hebrew University, and has considerable media presence. He used to be the main gadfly on the op-ed pages of Haaretz, the Israeli parallel to the NYT, though he was kicked off when Yariv Levin launched his judicial coup. Taub still has lots of other platforms.

He’s a pal of Hungarian PM Victor Orban. He detests post-modernism. He appeals to his fans on the political right by telling them the Ashkenazi elites are less patriotic, less rooted, less Jewish. He’s an Ashkenazi, secular, professor who sports earrings. His appeal is based on his crossover identity: he gives his audience insider information about the elites who look down on them.

Avishai Ben Haim is arguably more important. He’s 56 years old, and pedantic about being called Dr. Ben Haim, perhaps because his main professional turf is the media, not a university. Precisely unlike Taub, who’s shtick is that he’s a turncoat, Ben Haim purports to be the authentic voice of his people. He speaks for the Mizrachi masses who immigrated to Israel in its early years, were treated as second class by the European establishment, and eventually moved up into the middle classes. Their form of secularism remains embedded in tradition. Ben Haim does this with a twist: he has a long ponytail, which is unusual, and lives in a large house in an expensive neighborhood, but most of his research and reporting has been about the Mizrachi strands of ultraorthodox. You know he’s comfortable in Mizrachi synagogues; the elites he rails against rarely go to any synagogues.

In the telling of Taub and Ben Haim, Israel is divided into two camps. Second Israel are the authentic Jews, mostly Mizrachi, who are nationalistic, love religion even when they practice it in a modified form, and are wary of Palestinians and anyone who champions them. This camp wins most elections but doesn’t wield power. First Israel has lost interest in Jewish tradition, is solidly secular, cares mostly about its integration into the Western elite, and prefers (unattainable) peace with the Palestinians over sharing its benefits with their own Jewish brothers of Second Israel. First Israel cares about democracy, Second Israel cares about Jewishness.

This whole intellectual edifice has some merit. There was an early Ashkenazi elite, and back in the 1950s and 1960s it wasn’t good at making room for the Mizrachi newcomers. Israel is ever more secular, at least in its laws and public spaces. The courts have played a larger role in this than the governments. Menachem Begin made these themes the centerpiece of his political agenda. Yet Begin reached power in 1977, and his political camp has been in power, one way or another, almost continuously ever since. What’s more important is that Begin’s populism was benign. He sought equality for his voters. He sought to erase differences, and have one unified Am Yisrael, the Jewish Nation. His governments made important and long-lasting changes that really did address the wrongs they wished to correct. He also left the public stage in 1983.

Since the 1990s Begin’s erstwhile camp has been led by a very different man: Binyamin Netanyahu. If there’s one unshakable constant to Netanyahu’s political style, it’s his divisiveness. In Netanyahu’s world, his camp is under attack from the Left, and Israel’s existence is endangered by them. It is no coincidence that in his time a whole camp of political figures has appeared whose sole agenda is to screw the elites, nor that an entire ecosystem of right-wing media has grown that trumpets these ideas. The Left aren’t Jewish. The left isn’t patriotic. The Left are everyone who doesn’t vote for Netanyahu’s camp. Erstwhile right-wing allies who grew critical of Netanyahu are Left. Mizrachi’s who join the elites are no longer Mizrachi, they’re Left. Left are the enemy. They’re traitors. Since the Left can’t win elections, they’ve fashioned the courts as their tool of dominance. Hence, the courts, and especially the Supreme Court, is the enemy and must be cut down to size and dominated by the politicians.

These ideas have been years in the making. Their capstone is Netanyahu himself. For years he played a double game, allowing his allies to incite against the courts, but blocking actual attempts to legislate against them. He changed his position a few years ago, when he was indicted on various corruption charges. While his lawyers are successfully using all the tricks in the book to slow the proceedings, probably until he dies from old age, he has finally allowed his political allies to turn the full power of the legislature and government against the courts. The various religious camps railed against the courts, and many Israelis bemoaned the power of the secular elites, but they all converged with an actual legislative agenda only when Netanyahu was indicted and decided to destroy the courts to protect himself.

In response, it turned out there’s a large camp of Israelis who vehemently reject the entire edifice I’ve been describing. No-one knew they were there until January 2023, because they hadn’t been taking any of this seriously, preferring to run the Startup Nation, a booming economy, and generally getting on with life. Yet again, my descriptions reach the protest movement, and again I’m not going to focus on it. Still, we did manage to block most of the government’s agenda, and the Knesset only legislated a few minor clauses of it. In September the Supreme Court deliberated this legislation. All 15 justices heard the case – unprecedented, that. The government and its full range of media supporters damned the court for even hearing the case, claiming it lacked authority. In a dramatic scene, MK Simcha Rothman, second architect of the judicial coup, stood in front of the justices and berated them. Hundreds of thousands of us stood in the streets and supported the court. Many legislators announced that should the court dare to rule against them they would disobey its rulings. The demonstrators said such a refusal would end the remaining legitimacy of the government. All of us wondered what the police and army would do, which side they would join. We faced the most dangerous clash in our history. It was grim.

On January 1^st the court made two rulings. Eight of fifteen justices struck down the legislation, and three more ruled to neuter it without striking it down. But that wasn’t the truly dramatic part. The Knesset had embedded its revolutionary legislation within what’s called a Basic Law, which is as close we have to a constitution. Now, 12 of 15 justices ruled that they have the authority to override even basic laws, and a 13^th justice joined them with caveats. Five of seven conservative justices appointed in recent years specifically to change its direction, had ruled against the government. 362 days of judicial coup by the government had resulted in the supreme court ruling that its own power to block legislation was greater than it had been.

And no-one cared.

As our internal strife grew harsher through 2023, it seemed ever more likely that the enemies around us were taking note, and might try to take advantage of our turmoil. We don’t actually know how much this influenced Hamas’ decision to attack on October 7^th, though we all have opinions. If they believed our intense and heated rhetoric of division and internal animosity, they miscalculated. By late morning on October 7^th, we abandoned our worst and most divisive clash ever, and pretended it had never happened.

How complete was our change of heart? Well, on the morning of January 2^nd I was listening to one of our most important talk shows, hosted by two political opponents who disagree on almost everything but have great personal chemistry. (Kalman Libeskind and Assaf Lieberman, if you insist). They started at 8:03. When I got out of the car, at 8:34, they had yet to utter a single word about the story of the year, because they were too busy with the war. Yet appearances can be misleading, and I’m not convinced we’ve heard the last of Levin and Rothman’s judicial coup, and we’re certainly not rid of Taub and Ben Haim’s divisiveness. As for Netanyahu’s incitement – well, as long as he breathes, that’s what he’ll do. He doesn’t know how not to.

*            *            *

It took a while to wrote this, and it’s January 10^th. Yesterday Nahum Barnea stopped me cold. Barnea, almost 80 years old, is probably still the most important pundit in the country. He’s also a bereaved father, which you need to keep in mind while you read my translation of the opening paragraph of his column yesterday:

Every time I visit a family mourning someone killed in a war, I hug them with all my strength in an attempt to transfer some of their sorrow onto me. It never works, of course, because sorrow is stationary. It doesn’t move. Then, when I leave, I look for a wall to hit. Why did it have to happen to him, or her, to them, I ask the wall. Why did it have to happen at all. And why, after three months of evil death announcements that drip onto us every day like Chinese torture, all they know to offer us is more war and more.

Yaacov