As Furor Over Supreme Court Roils Israel, Its Values Will Be Its Iron Dome

The second part of two columns: Even if all the reforms were enacted, Israel would remain a strong democracy.

In the debate over judicial reform in Israel, both sides have tried to weaponize members of the American Jewish community to pressure the other side. I am an opponent of most of the proposed reforms, though I think that a compromise on some of them is in order.

Let’s be clear, though, that even if all the proposed reforms were enacted (which I hope they will not be) Israel would remain a strong democracy. It will be far more democratic than any other countries in the region and also than most European and Asian countries.

Indeed the reforms would bring Israel closer to being a pure democracy governed by majority rule. They would, though, endanger minority rights, civil liberties, equal rights, due process, and the rule of law. That’s why I oppose them.

Israel would be a better democracy with these principles kept intact then if they are compromised by a reduction in the power of the Supreme Court to enforce them.

The international community has little or no stake in the outcome of this debate. It will have little effect, if any, on any peace process or on the Abraham accords or on Israel’s relationships with other countries. The recent election itself, and the new government it produced may well impact relations with the Palestinians and others, and the ill-advised judicial reforms seem to be serving as a surrogate for these more international issues.

Even the mass demonstrations against the judicial reforms in Tel Aviv and Jerusalem often go beyond that issue and extend to general opposition to the new government and its right-wing policies. These demonstrations are the best evidence of Israel’s commitment to the democratic values of peaceful protest against a democratically elected government that is wildly unpopular among large and influential members of the public.

Democracy produced the new government, and democracy produced the protests against it. So much for the fear mongering among those who are telling the world that Israel is on the verge of becoming an autocracy — or in the false and dangerous words of some extremists, that it has already become the Germany of the 1930s. Even back in 2016, that false comparison was being made. 

Israel may continue to move rightward, as many other countries have in the growing age of nationalism and populism. For the first several decades of its existence it veered to the left, with elements of socialism. Changing demography changes politics. That’s democracy.

Yet I don’t believe that the Israeli people will easily succumb to the temptations of authoritarianism — and certainly not fascism. They are too independent, opinionated, and ornery. They have chutzpah, in the best sense of that term. More importantly, and more relevant to this discussion, if the pendulum were ever to swing in the direction of fascism — which I do not believe it will — the Supreme Court alone would not save it.

As the American jurist Learned Hand observed during the second World War conflict between democracy and fascism: “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”

I think Judge Hand may have understated the possible influences of the judiciary on helping to preserve liberty, but he was certainly correct to place more emphasis on the “hearts and minds of men and women.” The current protests against weakening the judiciary speak loudly about the spirit of liberty among so many Israelis. 

Israel should do the right thing not because of pressure from other nations, but because it is best for Israel. The international obsession with Israel’s imperfections does not promote the spirit of Liberty among Israelis. The conflict over Judicial “reform” must be solved by Israelis based on Israeli values.

Outsiders must feel free to offer advice, but should refrain from trying to put undue pressure on Israeli democratic decision-making. I am confident that Israel’s values will be its “iron dome” against authoritarianism.