Israel’s high court might have saved Israel from Netanyahu

The breakdown in the 15-person court was telling. “The court split almost down middle over the highly contentious legislation, the only law from the government’s polarizing judicial overhaul package to have been passed, with eight justices ruling to strike down the law and seven to uphold it,” the Times of Israel reported. “But fully 13 out of the full 15-justice panel that heard the case wrote in their opinions that the court did have the authority to review Basic Laws.” Of the five who upheld the court’s right to determine Basic Laws but didn’t strike down the “reasonableness” repeal, “three expressed deep concern over the legislation and wrote that it should be interpreted in a narrow manner to preserve aspects of the reasonableness standard.” The court reaffirmed that “it does have, in limited circumstances, the right to annul Basic Laws if they undermine the key characteristics of the State of Israel as a Jewish and a democratic country.”

In other words, it was a compelling rebuke of Netanyahu’s attempt to subvert the judiciary, one that went beyond usual ideological divisions. Many observers argued that it “will go down in history not for annulling that problematic legislation, dramatic as that decision is, but for upholding by a huge majority the principle that Israel’s democracy is inviolable,” as Jeremy Sharon wrote.

Refusing to delay the ruling during wartime also emphasized that the unpopular government cannot hide behind the exigencies of war to maintain its authoritarian agenda. The court seemed to suggest that Israel will remain a democracy, even (and especially) during the war.

The ruling represents a major victory for hundreds of thousands of Israelis — from all backgrounds, parties, religious views and professions — who took to the streets for more than 30 weeks to protest Netanyahu’s attempt to change the fundamental nature of Israel. A huge percentage of the Israeli population refused to countenance the shift from a country governed by principles of justice, equality and personal liberty to one in which a single political party would have had quasi-authoritarian power. The court essentially backed them up.

Coming at a time polls show Netanyahu’s plunge in popularity following the worst massacre of Jews since the Holocaust (only 15 percent want him to remain in power, according to a recent poll), the decision underscores the widening separation between Netanyahu’s government and the Israeli people. The sense that the emperor (or prime minister) has no clothes, coupled with the shock, horror and sense of abandonment Israelis feel in the wake of the Oct. 7 trauma and the increasing sense that the government has abandoned the hostages in favor of some nebulous goal of “destroying” Hamas, will only increase the opposition’s strength.

Indeed, whether it is the overreaching and divisive attack on the judiciary or the conduct of the war or the right-wing government’s vision of reoccupying Gaza, Netanyahu’s coalition is increasingly at odds with the Israeli people, the United States (its closest ally) and reality. “As for Israel’s current extremist government under Prime Minister Benjamin Netanyahu, [veteran U.S. diplomat Dennis] Ross says Israelis can’t expect the United States and other global powers to accept ministers who envision kicking Palestinians out of Gaza and rebuilding Israeli settlements there,” Haaretz reported. In a radio interview, Ross said: “They are basically saying, ‘We will control Palestinians forever, and they will simply accept it.’ And it also is a vision that suggests that somehow Israel is a superpower and doesn’t need anyone else.” He added that Israeli Finance Minister Bezalel Smotrich and National Security Minister Itamar Ben Gvir “are living in a world of their own. But it’s not a world of reality.”

Understanding Netanyahu’s weakened position, President Biden would be wise to use his capital with the Israeli people, both to continue pressure to reduce civilian casualties and to praise proposals such as that from opposition leader Yair Lapid, who has called for moderate Arab rule in Gaza.

“Today there is no debate,” Lapid explained in an interview with an Israeli radio station and reported by the Jerusalem Post. The Israeli withdrawal from Gaza in 2005 “should not have been done without reaching some kind of agreement. Now you have to reach a situation where you are building something together with the moderate Arab countries. The U.S. should lead.” As Lapid pointed out, the Palestinian Authority “has a civilian operation inside Gaza,” adding, “It would be stupid not to use such an infrastructure, and they’re not identified with Hamas. They should be a component in [a future arrangement] because without such a component, it wouldn’t be possible to bring in the Saudis, or other Arab countries.”

In short, both Israelis and American friends of Israel have reason to be grateful that the Israeli high court acted as it did. In reaffirming Israel’s democratic and law-based identity, the court’s decision simultaneously hastens Netanyahu’s departure and reaffirms the strength of the United States’ historic ties — not with an incompetent, unpopular and authoritarian coalition on its last legs but with the nation of Israel and its people.