Israel’s anti-government protest movement faced a crushing blow on Monday as Prime Minister Benjamin Netanyahu’s coalition succeeded in passing its first key piece of legislation to constrain the power of the judiciary. The bill, now enacted into law, abolishes what is known as the “reasonableness standard,” a loosely defined legal concept so-named because it enabled the High Court to use its discretion to block government decisions and appointments that it deemed unreasonable.
The architects of the law, chief among them Justice Minister Yariv Levin, claim that abolishing the reasonableness standard is a democratic necessity, taking power out of the hands of a few unelected judges and returning it to those in whom the public placed their trust. However, Levin’s own speech ahead of the vote in the Knesset plenum on Monday told a rather different story — one that centers around entrenching Israel’s control over the Palestinians and eliminating resistance to it.
Halfway through his speech explaining the reasoning behind the bill, Levin presented his fellow lawmakers with five examples in which the High Court invoked the reasonableness standard to intervene in government decisions, asking: “Do you really want these judges to have the power to determine what is reasonable and what is the right thing to do, rather than [those entrusted by] the public?” Yet rather than expanding the concept of democracy, every one of the examples he gave concerned Palestinians or Israeli anti-occupation activists, thus starkly revealing the real driving force behind the government’s agenda.
Two of the examples related to the overturning of decisions to ban Palestinians from entering Israel: in one case, bereaved families who were refused by the Defense Ministry to attend the annual Israeli-Palestinian Memorial Day Ceremony in 2018; and in the other, the Palestinian-American student Lara Alqasem, who was denied entry by the Interior Ministry in the same year on the grounds that she was a BDS supporter. A third example related to the overturning of an IDF decision during the Second Intifada to expel three Palestinians from the West Bank to Gaza after their relative committed an attack against Israelis.
Levin’s other two examples concerned Israelis whom the government sought to punish for their activism against the occupation. The first was the High Court’s decision to overrule the Education Ministry’s attempt to withhold the Israel Prize from its 2021 recipient, Professor Oded Goldreich, on the basis that he allegedly supported the academic boycott of Israel. The final example related to Israeli neuroscientist Yael Amitai, whose appointment to the board of a research grantmaking foundation in 2019 was initially blocked by the government because she had signed a petition in support of soldiers who refused to serve beyond the Green Line, before being overruled by the High Court.
Missing the crux
This is not the first time Levin has been so forthright about his motivations for the judicial overhaul. As Michael Schaeffer Omer-Man wrote in +972 earlier this year, Levin’s political obsession for the last decade has been the annexation of the occupied territories — and he has always been clear about the need to diminish the power of the judiciary in order to facilitate that goal.
“We cannot accept the current situation in which the judicial system is controlled by a radical leftist, post-Zionist minority that elects itself behind closed doors, dictating to us its own values — not just on [annexation] but also on other issues,” Levin said at an Israeli Sovereignty Movement conference in 2014. “A change in the legal system is essential because it will allow us, and will make it much easier for us, to take tangible steps on the ground that strengthen the process of advancing sovereignty [in the West Bank].”
Fast forward to 2023, Levin is leading the charge to do exactly that — and abolishing the reasonableness standard is only the beginning. Two months ago, for example, Levin reportedly made the case to the cabinet that there must be Supreme Court justices who “understand” why Israeli Jews would not be “prepared to live with Arabs”; unsurprisingly, one of the next bills in the overhaul package would give the government greater authority over the appointment of judges.
Of course, Levin’s examples on the Knesset floor were chosen with other considerations in mind, too. For the Israeli far right, painting the High Court as a defender of Palestinians — read “terrorists” or “the enemy” — is a way to put the anti-government protesters and the Knesset opposition, who seek to protect the judiciary, in an uncomfortable position.
After all, Benny Gantz, of the center-right Blue and White party, announced his arrival in the political arena in 2019 with a video bragging about bombing Gaza “back to the Stone Age” during his tenure as IDF chief of staff; even Yair Lapid, head of the centrist Yesh Atid, gave his enthusiastic backing to the army’s recent two-day assault on the Jenin refugee camp, during which it killed 12 Palestinians and wounded hundreds more. Building consensus on the backs of Palestinians, and using Palestinians as a cudgel for Israeli political infighting, has never been easier.
Yet both the Israeli opposition and the mainstream protesters have played right into the government’s hands. For seven months, the anti-government movement has waged a stubborn and meticulously coordinated war of civil disobedience against the judicial overhaul, escalating their tactics in recent days. But by marginalizing those within the protests who have sought to warn about the judicial overhaul’s endgame, and by refusing to acknowledge the annexationist drive underpinning it, the movement is missing the real crux of what the far right is trying to accomplish — and why the coalition is withstanding such massive pressure to see its agenda through.
So long as they fail to confront this drive head-on, the government’s opponents in the Knesset and in the streets will be ill-equipped to resist the rest of the judicial overhaul. And by the time they wake up, there is a good chance Levin will have already turned his dream into reality.