What Israel’s vote on ‘reasonableness’ means for its future

The legislation passed beyond a reasonable doubt. By a vote of 64-0 after the opposition left in boycott, the Knesset on Monday approved the first part of a judicial overhaul that curbs the Israeli Supreme Court’s use of “reasonableness” as a legal check on government appointments and plans. Prime Minister Benjamin Netanyahu claims the judicial overhaul will reduce overreach from unelected judges. Critics of the overhaul, hundreds of thousands of whom took to the streets over the weekend to protest, counter that it destroys important checks and balances underpinning Israeli democracy. In addition, Israeli military reservists have threatened to not report for duty if the overhaul moves forward, and US President Joe Biden has urged Netanyahu to pump the brakes on the legislation.

Below, Atlantic Council experts share their reasons to pay attention to what’s happening in Israel.

Click to jump to an expert analysis:

Jonathan Panikoff: Israel enters a legal, security, economic, and political abyss

Danny Citrinowicz: A new era of deep uncertainty has begun

Shalom Lipner: The ‘resonableness’ issue is the tip of a larger existential debate

Carmiel Arbit: The crisis will be acutely felt by Israelis but less so in the US-Israel relationship

Israel enters a legal, security, economic, and political abyss

Despite multiple last-minute attempts to delay passage of the judiciary reform bill, the Knesset on Monday passed the bill that includes restricting the Israeli Supreme Court’s use of the “reasonableness” test, sending Israelis into a legal, security, economic, and political abyss. 

Legally, almost as soon as the bill was passed, a pro-democracy non-governmental organization, the Movement for Quality Government in Israel, filed an appeal of it to the Israeli Supreme Court. Whether the court takes up the case, let alone finds a reason to overturn the law, remains an open question. Last week while I was in Israel, senior officials provided me with conflicting views on this matter, with government officials viewing the court as unlikely to overturn the law and opposition officials expecting it to do so, after a cooling-off period, which would create the equivalent of a constitutional crisis. 

At the same time, ten thousand reservists are reported to have suspended their voluntary duty. And while officials I spoke to last week almost unanimously expect military personnel to show up and serve in the event of an attack by Hezbollah or Palestinian militants, supported by Iran, Tehran is almost certainly closely monitoring the situation, delighted by internal Israeli division and eager to try to take advantage of the situation if it can.

The law’s passage creates economic uncertainty, as well. In the hours before the vote, Israeli stocks began to fall and the shekel weakened. Reactions will seem minor in retrospect if Histadrut, the main labor union in Israel, authorizes a general strike that lasts more than a few days.

There is also an open question about what impact the bill will have on Israel’s relations with the United States. On Sunday, Biden again publicly encouraged Netanyahu to slow the reforms—to no avail. At some point, sustained disagreements over policy can lead to a weakening in the relationship between even the closest of allies. And few issues are more fundamental to the US-Israel relationship than being rooted in core democratic principles.

The judiciary reform bill may have passed, but in doing so it created more questions than answers for the near- and medium-term future of all sectors of Israeli society.

Jonathan Panikoff is the director of the Scowcroft Middle East Security Initiative at the Atlantic Council’s Middle East Program. A former career US intelligence officer, Panikoff served as the deputy national intelligence officer for the Near East at the National Intelligence Council from 2015 to 2020.

A new era of deep uncertainty has begun

The decision made by the Knesset regarding the reason for reasonableness is a severe blow to the relationship between Israel and the United States. The close relationship between these countries is based on shared values ​​and the constitutional change being made in Israel today undermines these common values. The same Netanyahu who promised Biden to pass the legislation by a consensus will find it very hard not only to receive an invitation to the White House for a meeting but also to maintain the same close relationship and partnership between the Israeli government and the US administration.

In Israel the protest will not subside even if Netanyahu publicly promises that any future legislation will be done by consensus. Everyone’s eyes are on the Israeli Supreme Court, but any decision it makes will be extremely problematic. The rejection of the law will lead Israel to a constitutional crisis. On the other hand, its approval will lead to unprecedented measures that could undermine the readiness of the Israel Defense Forces. Hence, Israel is entering a deep era of uncertainty that will damage its security, economy, and diplomatic relations, and above all will create domestic unrest for a long period of time.

This decision also highlights the fact that the extreme elements are actually controlling the Israeli government and even if nothing dramatic will take place soon (like the removal of key state officials) they now possess the power to do so in the future and to implement their radical views regarding the future, for example, of Israeli-Palestinian relations. Unfortunately it seems that Israel will not be the same Israel as we all knew in past years. A new era has begun. 

Danny Citrinowicz is a nonresident fellow with the Atlantic Council’s Middle East Programs. He previously served for twenty-five years in a variety of command positions units in Israel Defense Intelligence.

The “reasonableness” issue is the tip of a larger existential debate

With the final passage of new Knesset legislation negating the “reasonableness” standard—which had enabled the Supreme Court to overrule what it deemed unreasonable government decisions and appointments—Israel stands at a fraught crossroads. Both sides of the feud over judicial reform will be retreating to their respective corners for internal (and unruly) discussions on their paths forward.

Within the Netanyahu government, champions of overhauling the judiciary are now pressing to leverage their latest success for the sake of implementing additional components of their agenda without delay. Their accelerated time frame runs directly counter to the expressed position of Netanyahu, who has told the nation—and Biden, as well—that he intends to slow the pace of reform and work to “reach wide public support” for subsequent phases of the program. Netanyahu, whose continued grip on power hinges intrinsically on his ability to keep satisfying the appetites of his coalition members, will have to decide whether he’s ready to impose limits on their demands, with the potential cost of losing his premiership. Assorted ranks of the protest movement—not a monolithic entity either—will be considering whether to make good on their various pledges to quit the Israel Defense Forces reserves, move their corporate assets abroad, or, perhaps, even emigrate from Israel. They, too, will have to decide on the sequence of their resistance activities and on whether to attempt engagement with the government.

Israel’s deeper problem is the identity crisis in which its citizens find themselves embroiled. The “reasonableness” issue, after all, is but the tip of an iceberg whose foundations lie in the existential debate that Israelis are waging over their nation’s Jewish and democratic character. In this context, the zero-sum game playing out currently between advocates and detractors of changes to Israel’s legal system leads to an impasse where, in most scenarios, roughly half the country will be left disenfranchised if the rival camp prevails. And with sacred cows such as military service in elite units being slaughtered now by the herd, the damage which Israelis are threatening to inflict upon their own society could put the entire national enterprise in grave peril.     

Shalom Lipner is a nonresident senior fellow for Middle East Programs at the Atlantic Council. From 1990 to 2016, he served seven consecutive premiers at the Prime Minister’s Office in Jerusalem.

The crisis will be acutely felt by Israelis but less so in the US-Israel relationship

On Monday, in the face of the passage of the first judicial reform bill in Israel, President Isaac Herzog, fresh back from Washington DC, warned that Israel was facing a “national crisis.” And indeed it is: unprecedented numbers of Israelis have taken to the streets—from military reservists who will now refuse service to corporate leaders threatening an exit from Israeli markets—to express their opposition to judicial reform that will kneecap seventy-five years of democratic values that have preserved Israel as both a Jewish and democratic state and fortified it as a critical, and arguably the only, democratic US ally in the region. 

If the judicial reform continues apace, and Israelis expect it to, as the most right-wing governing coalition in Israel’s history pursues what many unaffectionately call a “salami approach” to reform—legislating to undercut the judiciary, slice by slice—Israel’s democratic institutions are positioned to be profoundly undermined. The impact will be most acutely felt by women and minorities. In a country that lacks a constitution, the Supreme Court has been a critical buttress, preventing the passage and implementation of laws that would allow Israel’s ultra-religious parties to tyrannize its majority secular population. The result is indeed a crisis.  

Globally—including in the United States—Israel’s allies have warned against these reforms and the impact it will have on Israel’s democracy. But the response has otherwise been tepid. This may change as the full impact of the reform becomes apparent. Democratic erosion in Israel will give fodder to members of the far left in the US Congress, whose disaffection with Israel continues to grow. And they will continue to pressure the Biden administration to take action in kind.

Carmiel Arbit is a nonresident senior fellow for Middle East Programs at the Atlantic Council. Her research focuses on US-Israel relations, the peace process, Israeli and Palestinian politics, Congress, and broader issues affecting the Middle East.

Further reading

Related Experts: Jonathan Panikoff, Danny Citrinowicz  , Shalom Lipner, and Carmiel Arbit

Image: Israeli Prime Minister Benjamin Netanyahu and lawmakers gather at the Knesset plenum to vote on a bill that would limit some Supreme Court power, in Jerusalem July 24, 2023. REUTERS/Amir Cohen