Netanyahu’s Other War

When Hamas invaded Israel on October 7, the most bitter political conflict in the country’s history suddenly seemed to be on hold—as if an unseen finger had pushed a pause button with everyone’s mouths still open in a shout.

“Judicial reform is not on the agenda,” Prime Minister Benjamin Netanyahu declared at a press conference on October 28, referring to his government’s program to eviscerate the supreme court and give the executive unconstrained power. Major  protest organizations that had risen to fight Netanyahu’s power grab switched their  mission overnight to philanthropy—helping bereaved families and displaced residents of border towns. Amid sirens warning of incoming rockets from Gaza, arguments over judicial review could obviously wait.

This was an illusion.

Netanyahu and his political allies are still seeking to advance a “constitutional coup,” to use the Tel Aviv University law professor Aeyal Gross’s term. And in recent days, the conflict between the government and the supreme court has escalated into open confrontation.

Even before now, the effort to transform Israel from a liberal democracy into an autocracy continued alongside the war in Gaza and at times intersected with its management. If Netanyahu retains power, his assault on democracy is certain to outlast the war and may prevent any investigation of the colossal failures that left Israel unprepared for the Hamas attack to begin with. And as costly as the war has been, the internal struggle over democracy ultimately may have the greater effect on Israel’s future and its viability.

The battle over the Israeli judiciary began in January 2023, just days after Netanyahu returned to the premiership as the head of the most right-wing government in Israel’s history. Netanyahu’s justice minister, Yariv Levin, announced a plan for a judicial overhaul that would give the ruling coalition complete control over appointing judges, including supreme-court justices. The plan also included measures that would impede the supreme court from overturning laws and enable the Knesset to easily override the court.

For years, fury with the judiciary—and the guardrails it put on executive power—had festered on the Israeli right. Netanyahu-led coalitions had repeatedly promulgated laws consigning asylum seekers to extended detention, only for the supreme court to overturn them. Based on the doctrine of “extreme unreasonableness” inherited from British law, the court had ordered the dismissal of high-level officials tainted by corruption and blocked the appointment of others. On rare but highly publicized occasions, the court had barred West Bank settlers from building on Palestinian property. Because of the court, Israelis “voted for the right and got the left,” Levin’s close ally Simcha Rothman, the chair of the Knesset’s Constitution, Law, and Justice Committee, railed in a parliamentary speech soon after Levin announced his program. Left, in this case, can be read as a pejorative term for liberal democracy, in which limits on the majority protect civil rights and prevent corruption.

Netanyahu, Levin, and Rothman expected to enact the judicial overhaul quickly: A simple majority in the Knesset suffices to pass a “basic law,” as pieces of Israel’s incomplete constitution are known. They did not anticipate the tsunami of protests that brought hundreds of thousands of demonstrators into the streets, week after week, chanting “Democracy” as a battle cry. An attempt to quell the outcry by negotiating with centrist opposition parties failed—but slowed the coalition’s effort to legislate the overhaul. When war came in October, Levin’s proposal was still in the legislative pipeline, where it has remained since.

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On a party-line vote, however, the Knesset had enacted a constitutional amendment barring the courts from using the reasonableness doctrine to overturn any action of the government, the prime minister, or individual cabinet members. The supreme court shot back on January 1, 2024, with a monumental decision: It ruled that it has the power to overturn even constitutional measures if they violate fundamental democratic principles—such as preserving an independent judiciary. And by an 8–7 margin, the court annulled the amendment and restored the reasonableness doctrine.

Since then, Netanyahu’s coalition hasn’t tried to legislate any other major pieces of the “reform.” Levin and Rothman faded from the headlines. Mass demonstrations resumed—but the Israelis in the streets were now demanding a hostage deal, a cease-fire, and accountability in the form of new elections and a commission of inquiry into October’s disaster. Those protests reached a new peak after the recent murder of six hostages in Hamas captivity.

But the government never really gave up its assault on Israel’s democratic underpinnings. Rather than a frontal attack, it turned to attrition: Instead of trying to change the rules, it ignored them.

One day this summer, in the town of Herzliya, police arrested four people who were picnicking in a park while wearing T-shirts with protest slogans in favor of a hostage deal or against “the government of destruction.” The park was near the home of Yuli Edelstein, a prominent politician in Netanyahu’s Likud party. The police claimed that the picnic was an illegal demonstration. The four were held for hours, then released without charges.

The same week, a right-wing mob broke into and rioted at an army base where military police had brought soldiers suspected of sodomizing a Palestinian prisoner. Civilian police at the scene made no arrests and conducted no investigation afterward. “The clear policy was to turn a blind eye and not get in trouble” with Itamar Ben-Gvir, Israel’s far-right national-security minister, according to an unnamed—and clearly dissatisfied—senior police officer who spoke to a Haaretz reporter.

Taken together, the two incidents demonstrate a deliberate blurring of boundaries by the Netanyahu coalition. Israel has a centralized national police force, under the auspices of the ministry that Ben-Gvir now heads. A bright line is supposed to divide the realm of the national-security minister, who is a politician, from that of the police chief, who is a civil servant. The police chief “can’t be identified politically,” Yoav Segalovitz, an opposition Knesset member who served as deputy minister under Ben-Gvir’s predecessor, told me. A politician can make policy decisions—such as developing a DNA bank or a new investigative unit, for example—but not operative decisions, such as whom to investigate, Segalovitz explains. Ben-Gvir has upended this arrangement—and Netanyahu has allowed him to.

In return for bringing his extreme Jewish Power party into Netanyahu’s coalition, Ben-Gvir received not only the ministry, but also the overnight passage of a law designed to give him more direct control of the police. Within days of taking office, Ben-Gvir was instructing senior officers to use tougher measures, including water cannons, to crack down on the protests against judicial “reform.” On Ben-Gvir’s orders, the popular commander of the Tel Aviv police, who by his own account refused “to fill the emergency room … at the end of every demonstration,” was transferred to a low-status post (he then left the force).

The nonprofit Association for Civil Rights in Israel and other groups asked the supreme court to overturn the so-called Ben-Gvir Law. As the attorney Yonatan Berman, who represents ACRI in the case, told me, when a member of the government determines how the police deal with protests, there is an “inherent conflict of interest.”

The court hasn’t yet ruled on the law, but it has twice issued injunctions barring Ben-Gvir from giving orders for how to handle specific demonstrations. Nonetheless, in a letter in May to Israel’s attorney general, Gali Baharav-Miara, the outgoing national police chief wrote that Ben-Gvir had given instructions to abstain from protecting humanitarian aid convoys on their way to Gaza, which were being attacked by right-wing activists.

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By now, arguably, police commanders know which way the wind is blowing even without specific orders: The barrier between politicians and law enforcement has fallen, and the police now serve the political right. In late August, Ben-Gvir promoted an officer who is under indictment for hurling a stun grenade into a crowd of peaceful pro-democracy demonstrators last year. Attorney General Baharav-Miara informed him that the promotion was illegal and void. Ben-Gvir reportedly responded that the attorney general has “a recommending role, not a deciding role.”

But Israeli legal doctrine says otherwise: The supreme court has stipulated that “the legal opinions of the attorney general obligate the government,” the legal scholar Ido Baum told me. “She is the legal authority,” unless or until the court rules differently. This government, Baum said, repeatedly tells the attorney general, “We’re going to do it anyway” and ignores her instructions. In early September, a Jerusalem court issued a temporary injunction blocking the indicted police officer’s promotion. The issue may end up before the supreme court. It’s all part of a war of attrition between the government and the attorney general, who represents the rule of law.

Another recent case involves the appointment of a new civil-service commissioner, who’s responsible for overseeing the large government sector of the economy. This post, too, is meant to be politically neutral. With the current commissioner’s term about to end, Baharav-Miara sent a letter to Netanyahu informing him that an independent committee would have to appoint the new one. Yet in early August, the cabinet met and voted that Netanyahu would personally choose the new commissioner.

Possibly the most consequential clash between Netanyahu and Baharav-Miara is one shrouded in wartime secrecy. In early August, the attorney general sent a harsh warning letter to Netanyahu about the government’s making “significant decisions by improper procedure.” One example, she said, was that the cabinet secretary—a lawyer, but with no legal authority—had given an opinion on July 31 with “weighty consequences for national security.” Because her letter was public and the security issue was secret, she did not give details. But the date is suggestive: Early on the morning of July 31, the Hamas leader Ismail Haniyeh was assassinated in Tehran, in what is widely presumed to have been an Israeli attack.

One possibility, raised by the prominent Israeli journalist Raviv Drucker and others: Netanyahu authorized the operation without asking for a cabinet vote. Constitutionally, Aeyal Gross has written, a cabinet vote is required for a decision related to “any significant military action that could lead to war.” Drucker has reported—albeit without citing his sources— that the cabinet secretary, Yossi Fuchs, had provided a legal opinion saying that Netanyahu could make the decision on his own, despite the clear danger of igniting a regional war.

The full story is unlikely to emerge soon—except, perhaps, if Netanyahu gives in to public pressure to establish a state commission of inquiry into the October 7 catastrophe and the government’s conduct of the war since. What’s clear is that the attorney general thinks Netanyahu is making war-related decisions illegally. Gross notes that constitutionally, Israel’s prime minister is the “first among equals” in the cabinet, which is collectively the chief executive. But Netanyahu has been deciding alone on issues such as the conditions for a hostage deal, only rarely seeking a cabinet vote. “It’s a total collapse of the rule of law,” Gross says.

Ultimately, many of these disputes will likely come before the supreme court, which exercises the most important check on executive power. “Who else will protect minorities, protect rights, oversee the government’s decisions?” former supreme-court President Dorit Beinisch said to me. And for just that reason, Justice Minister Levin wants to control appointments to the court.

Today all judges in Israel are chosen by a nine-member committee made up of four politicians (the justice minister as chair, another cabinet member, and two members of the Knesset) and five jurists (three supreme-court justices and two delegates from the bar association). The system gives politicians a voice but emphasizes legal qualifications.

A majority of seven is needed to confirm a new justice—meaning that the jurists and the politicians have to reach an agreement. To appoint the president of the supreme court from among the serving justices requires a majority of only five on the panel. By firm tradition, though, the president is always the justice who has been on the court the longest. That tradition, Beinisch said, is protection against “someone who wants to be the president writing rulings that find favor with the government.”

Levin’s original plan was to legislate a change that would give politicians from the ruling coalition an automatic majority on the panel. When protests and then war put that on hold, he turned to stonewalling—first not convening the committee, then refusing to put supreme-court appointments on the agenda.

Meanwhile, attrition is shifting the balance and creating a more conservative court. Justices have a mandatory retirement age of 70. Former court President Esther Hayut and another liberal justice reached that threshold recently and stepped down. Were the law on the reasonableness doctrine to come before the court today, there would no longer be a majority to overturn it. Hayut has not officially been replaced, and the acting president, Uzi Vogelman—also a liberal—will turn 70 in October. By seniority, the next president should be the liberal justice Yitzhak Amit.

By stonewalling, Levin apparently hoped to force the jurists on the committee to accept his proposals. In his last reported formulation, this included suspending the seniority system and appointing to the court at least one of the two ultraconservative scholars who helped design the proposed judicial overhaul. But Vogelman refused to be strong-armed.

On September 8, ruling in a suit against Levin, the supreme court issued an order that he must convene the committee to elect a new court president. (Given the requirement for a supermajority on the committee to appoint new justices, the court merely urged committee members to reach agreement quickly.) Levin quickly issued a statement denouncing the decision as undemocratic, irresponsible, and “contravening the explicit law.” Asked if he would obey the order, he reportedly responded, “All options are on the table.” Another Likud cabinet minister declared that it was “forbidden to collaborate” with the court’s decision.

As of this writing, whether Levin will accede, defy the court, or demand a vote in the Knesset on changing the system is anyone’s guess. He may well see the last of those options as the only way to block Amit’s accession to the court presidency. Yet it could also put democracy back on the agenda for those already protesting Netanyahu's refusal to make a hostage deal.

The war has likely hardened Levin’s conviction that he needs control over choosing the next president of the court. Polls have shown that more than 90 percent of Israelis favor establishing a state commission of inquiry into the catastrophe of October 7. Similar inquiries in the past—for instance, after the 1973 Yom Kippur War—have had major political repercussions. By law, the government has to ask for an inquiry, but the president of the supreme court chooses the commission members. If Amit is court president, he will likely name himself or Hayut as chair. That’s the last thing the government wants.

So the war and the constitutional crisis are entangled. If the protests or the war’s end bring down the government, Netanyahu’s bid to undermine democracy may be one more terrible memory from his time in power. If the government remains in place, its constitutional coup will continue alongside its effort to avoid responsibility for October 7 and all that has followed.

Much depends on the supreme court, on the attorney general, and—most of all—on the continued determination of large numbers of Israelis to keep fighting the government’s plans.