Confusing Judicial Reform With Unleashing Extremism

Editor’s Note: The following is adapted from an address given at Columbia Law School on May 4, 2023, at a conference on “The Battle over the Israeli Judiciary” put on by Columbia Law School and Academic Exchange.

The argument between advocates of judicial activism and advocates of judicial restraint is an important one—ongoing over many years and obviously unresolved—one that regularly invites our attention. I have had a small part in the argument, mostly on the restraint side. Many of you will remember the enthusiastic reception of John Rawls’s A Theory of Justice in law schools back in the 1970s and 1980s. I remember law professors arguing that since Rawls obviously got it right, the courts should begin enforcing the “difference principle”—or, at least, using it as a guide in deciding difficult cases. I wrote a piece back then arguing for judicial restraint. 

When the parallel arguments began in Israel some years later, with Supreme Court President Aharon Barak leading an activist court and defending a doctrinal activism, his leading intellectual opponent was Ruth Gavison, a professor at Hebrew University’s law school and a good friend of mine—a friend with whom I partly agreed. 

But I don’t believe that those old arguments, important and legitimate as they are, are truly what lies behind the current Israeli debate over the government’s so-called judicial reform. They are not what Israelis are really arguing about when they push for these laws or take to the streets to oppose them. And they are not the proper focus when American analysts watch events in Israel from overseas. 

The new Israeli government has a radical, ultranationalist, and ultrareligious agenda—an agenda aimed at both the West Bank and green-line Israel. Its leaders chose to begin with legislation drastically weakening the Israeli Supreme Court because they believe that its judges will be an obstacle to the realization of their agenda. This isn’t a question of judicial philosophy; it is a political question. Actually, this Israeli Supreme Court does not have a great record defending justice in the West Bank; the judges have not done anywhere near enough, for example, to prevent the seizure of Palestinian land and the expansion of settlements, nor have they managed to overturn the effective legal impunity of settler thugs and would-be militias, whose daily acts of violence against Palestinians are recorded in the Israeli press, it seems, only in the pages of Ha’aretz. So it is really heartening to discover that this government’s leaders expect the court to stand in their way. I suppose, I hope, that they know more than I do. 

Some of my friends on the left, here and in Israel, have criticized the men and women protesting against the judicial “reform” because the protesters don’t talk openly about the occupation and about what’s happening in the West Bank—and about what will happen if this government is able to enact and enforce its program. Indeed, the protesters talk only about democracy at home and not about what democracy would require in the occupied territories, not about the “geopolitical” issues Israel confronts. But the defense of democracy is a rejection of unchecked power; that has been a steady theme of the protests. Now, we can oppose unchecked power and defend limited government for all sorts of reasons, including reasons having to do with abstract principles of political theory. But, in fact, in Israel today, the reasons for opposing unchecked power have to do with the likely—the immediately likely—uses of that power.

Many protesters, I admit, fear the uses of unchecked power not abroad (the West Bank is abroad for these purposes) but at home, to advance the program of religious zealots, the current leaders of the ultraorthodox, Haredi, political parties. These parties, a crucial part of the governing coalition and a significant source of its radicalism, have a twofold agenda. First, they mean to consolidate and entrench the autonomy of their community. Specifically, they aim to defend their ability to refuse the conscription of their young men (and women) and their ability to ignore the national curriculum in their schools: not only math and reading but also history and civics. The Haredim don’t want to teach citizenship or the meaning of democracy to their children, and they don’t accept the central obligation of Israeli citizenship—and this is now to be made official, a central and permanent feature of Israeli society. They also hope to extend the authority of the rabbinic courts, chiefly at the expense of religious women. 

These are all domestic matters. But some of the leaders of the Haredi parties also want to enforce aspects of religious Jewishness. I mean here that they wish to enforce their understanding of religious Jewishness, which is not the only possible understanding of it. And they aim to do so across the larger society. Sabbath observance, gender separation, and immigration policy are the current examples, but there could be more to come. 

This would mean the further alienation of non-Jews from the state of Israel, another domestic matter. But it also means that in the Greater Israel that this government, or some of its leading members, mean to create, Palestinian Arabs could constitute a majority or near majority of the population and at the same time would be, at best, second-class citizens of a pervasively Jewish, an in-your-face Jewish country. And that is a geopolitical matter since it would affect the standing of Israel in global society and, possibly, its relations with currently friendly states—and its connection, if this matters to the government, to world Jewry.

Still, the Haredim have some built-in restraint, a certain old-fashioned sense of vulnerability derived from their history, and broader Jewish history; they are mostly not all that interested in Greater Israel.

By contrast, the most significant geopolitical dangers the government poses come not from the Haredim but from the ultranationalist members of the government, who represent the settlers. They are also religious but come from a different strain of Judaism—and they are radically unrestrained. Before looking at their larger program, I want to say something about the proposal, agreed to by the prime minister in response to demands from the criminal turned police minister Itamar Ben Gvir to create a “national guard” alongside or between the Israeli Defense Forces and the police. The idea had been discussed before the previous election; it may be a good idea if it were based on the American model of an apolitical force used in emergencies. I am sure that the Israeli Supreme Court would not interfere in the creation of a force of that sort, on the assumption that it would be used in legal ways. But the current proposal would place this force in the hands of one of the most radical members of the government, who has in the past, and more recently, called for the violent repression of West Bank Palestinians and of protesters in Israel proper. I wonder if it is “reasonable”—a much disputed concept but certainly relevant here—to create a national guard to defend law and order and put at its head a man committed to violence and aggression. Might that be an issue for the court? I will have to leave that question to the lawyers. 

The aim of the ultranationalists is, quite simply, the establishment of Greater Israel, one state from the Jordan River to the Mediterranean Sea, ruled by Jews, preferably Jews like themselves. And these zealots are prepared—I want to be careful here, so I will choose a euphemism—to impose all the hardships on the Palestinians that would be necessary to ensure that this Greater Israel will be a Jewish state. We all know, if we are willing to know, what those hardships would involve.

Over the past decades, people like me have been arguing that the ongoing occupation and the steadily expanding settlements would turn Israel into a pariah state. We were wrong; we didn’t grasp the geopolitical realities. It turns out that Israel’s high-tech economy, its military strength, and its intelligence capacities override any interest among Arab countries or, more generally, around the world in the troubles of the Palestinians. Will that continue to be true if the program of the current government is realized? Perhaps our previous view was simply premature. I have no relevant knowledge here; I can only notice that the people responsible for Israel’s high-tech economy, its military strength, and its intelligence capacities all seem to believe that the realization of the government’s program would be disastrous.

I am more interested today in what you might call the geopolitics of diaspora and, especially, American Jewry. For the past decade, I have been a member of a group of liberal and left academics who fight against the Boycott, Divestment, and Sanctions (BDS) movement on every campus where we have people and in the professional associations. We win some battles, and lose some, but we have proved, I think, that winning is possible and that the best way to win on the American campus today is to defend Israel from the left, which is to say critically. I would guess that the current Israeli uprising in defense of democracy will make winning easier (for the moment)—and that the defeat of the uprising would make winning virtually impossible. That is also a geopolitical problem, given the percentage of Jewish young people who go to college and the fact that American Jewry has been, in the past, a valuable geopolitical asset for Israel. Lose the young, and we lose the asset. 

But I don’t want to end with the geopolitical dangers that the government’s program will bring with it. There are also moral-political dangers. Religious coercion, radical inequality, and nationalist aggrandizement represent a version of politics that requires our moral condemnation. The protesters in Israel know that, or many of them do, and that is what drives their protest. And I believe that American Jews and liberal Americans more generally know it too, and that should lead us to support the protesters. Since the government of Israel, as I noted above, believes that the judges of the Supreme Court will obstruct their program of coercion, inequality, and aggrandizement, we should also, whatever our judicial philosophy, support the integrity of the court system.