Inside the weekly protests that have convulsed the country since January.
Elyakim Junction was a swirl of signs, horns, and loudspeakers. Bathed in the ambiance of blue-and-white Israeli flags, the overpass filled with Israeli holiday goers returning from Shavuot celebrations.
It was unusually chilly for Israel in late May, but as the sun set and people across the country readied for work, army, or school the following day, hundreds of locals took the time to join the circadian rhythm of national protest. Almost every Saturday evening since January, Israelis have made their way to nearby town centers, intersections, and bridges to protest Prime Minister Benjamin (“Bibi”) Netanyahu’s proposed judicial reform.
Depending on who you ask — Israelis are more opinionated than most — the proposed overhaul of the Supreme Court either foreshadows the end of democracy or introduces a necessary reform to an ossifying institution. The core of the debate centers on a proposal to limit the court’s ability to self-select justices and a since-passed bill that limits the court’s ability to override “unreasonable” public policy.
My family, mostly liberal Israelis who treasure the court as a bulwark against the country’s rightward political drift, see the proposed reforms as a looming threat to human rights. So I didn’t have a choice not to attend the protests. When Israeli relatives tell you what you’re doing, you don’t ask questions: you just do.
My uncle, Giora, an agronomist who enjoys Turkish coffees before heading to the fields at 4:00 a.m., thrust an Israeli flag into my hand and shoved me into the chaos of the highway overpass. Local police were present, as was Tatiana Mazarsky, a local member of Knesset from the centrist Yesh Atid.
With the help of my gregarious relative, I was introduced to Sarah, an Israeli woman in her 60s. Apart from one week when she was out of the country, Sarah has made the trek every Saturday to Elyakim. She had been to 20 such gatherings so far. The week’s demonstrations were particularly energetic because a new budget had been passed days before allocating over a billion dollars to the country’s ultra-Orthodox community.
As Sarah explained, support for the proposed judicial reforms splits largely — though not exclusively — along religious-secular lines, with Orthodox Israelis calling for a democratic check on a court that doesn’t represent their values.
“The Israeli Supreme Court is known around the world for being very liberal. Some people say too liberal. It blocks every initiative that goes against human rights,” she said.
Sarah worries that the judicial-reform bill is going to be pushed through by a slim legislative majority in the Knesset and send Israel on a path toward the backsliding democracies of Hungary, Poland, and Turkey.
“Hungary, Poland, and Turkey. These are three other democratic states that moved slowly, gradually, step by step,” Sarah told National Review amid a steady thump of protest drums in the background.
She even went so far as to suggest that a charismatic leader like Netanyahu could convert Israel into a “dictatorship.”
While liberals like Sarah see the proposed reform as a harbinger of authoritarianism, the bill’s supporters have argued that the “constitutional revolution” ushered in by Aharon Barak in the ’80s and ’90s transformed the court into its own fiefdom, unrepresentative of the average Israeli, and unaccountable to other branches of government. Under Barak’s tenure, first as a justice from 1978 to 1995, and later as the body’s president until 2006, the Supreme Court’s power grew massively.
Barak enshrined judicial activism during his time on the court, becoming a figure of revulsion on the right and a paragon of justice for the left.
“The judge of a supreme court is not a mirror. He is an artist, creating the picture with his or her own hands. He is ‘legislating’ — engaging in ‘judicial legislation.’ Judicial creativity — judicial legislation — is natural to law itself. Law without discretion is a body without a spirit. Judicial creativity is part of legal existence. Such creativity — ‘judicial lawmaking’ — is the task of a supreme court,” Barak wrote in a 2002 article while on the bench.
Eugene Kontorovich, a professor of law at George Mason University’s Antonin Scalia Law School, is an eloquent defender of the reforms and believes that its detractors are more frustrated at Netanyahu than the legislation itself.
“I think it’s quite explicit in the opposition that it’s not so much what the reforms are as who’s pushed them,” he told NR. “There’s a significant crisis of democracy in Israel; a democracy deficit because it had a Supreme Court which is the most powerful in the Western world. It has powers like no other.”
In late July, the Netanyahu government passed part of its larger legislative agenda reining in the court’s ability to strike down government policies it deemed “unreasonable.” Its passage led opposition members to walk out of Knesset and boycott the vote as hundreds of thousands of protesters took to the streets. Still, the reform’s most contentious aspects — how justices are selected — was postponed until the coming parliamentary session in November.
Kontorovich pointed to the recent controversy over “reasonableness” which, in the past, permitted the Supreme Court to influence taxation levels, military tactics, and ministerial appointments. “There is simply no precedent for this in America,” the law professor noted. “The Supreme Court here basically exercises executive power and legislative power ruling over essentially completely political, non-legal, discretionary policy choices.”
Unlike America’s Supreme Court, which boasts a mix of conservative and liberal judges, Kontorovich argued that Israel’s analogue lacked any similar counterbalances. “There’s not two camps on the court. There are those who think the court should have the power it has and there’s no one who disagrees with them. [It’s] a homogenous court.”
Israel’s Supreme Court, which nominates its own justices, had created an insulated system. The reasonableness reform thus represented a “modest step to introduce a limited amount of checks and balances,” Kontorovich added. “Even if all these reforms go through, the Supreme Court will still be one of the most powerful courts in the world.”
I left in a daze. Public support didn’t appear to be firmly behind Netanyahu, yet his coalition was the most stable Israel had experienced in years. The following day, Giora dropped me off at the same junction to grab a bus bound for Tel Aviv and family in Shoham, a town near Ben Gurion International Airport.
The last time I visited, my cousin Perry and his wife, Dana, often poked fun at each other’s politics. He, after all, was an Ashkenazi Jew who grew up on a socialist collective in the ’70s, while Dana’s family immigrated from Yemen, imbued with a deep sense of tradition and religion. He was a typically lefty; she was less idealistic about peace and coexistence.
This time around, however, they were equally alarmed about Netanyahu’s government, so much so that they were actively looking for jobs outside the country. They weren’t alone. Polling conducted by Channel 13 in late July found that over a quarter of Israelis were considering leaving the country.
I was told that if I was so close to Tel Aviv, I must attend the Saturday protest on Kaplan Street. While hundreds of towns and villages across the country participated in small weekly displays like those at Elyakim, “Kaplan” became a byword for the granddaddy of them all, located beside the Azrieli Center, a massive shopping plaza beneath one of the tallest skyscrapers in the country.
Perry was part of a local WhatsApp group that chartered a weekly bus from his neighborhood to Kaplan. He bought me a ticket, gave me a flag, and drove to the town center to join the convoy the following Saturday evening. Apart from thin blue lights illuminating the central walkway, the bus dimmed as people readied for the half-hour commute. We were sitting at the back of the bus as Tel Aviv’s sweeping horizon of sleek glass office towers came into view.
Upon Netanyahu first introducing the bill before the Knesset, Perry said “it was so clear” to him it was undemocratic. A long-time supporter of Israel’s left-leaning Labor Party, Perry admitted the Supreme Court “needed to change.”
“The way that they choose judges” was outdated. But, “you don’t want a politician to do it” either, Perry added. However, he struggled to articulate how such a reform — he preferred using the word “revolution” — should have been introduced and passed.
We stepped off the bus on the west side of Ayalon Highway, a massive throughway that bisects Tel Aviv. Walking across the overpass, the beat of drums and sound of loudspeakers became progressively louder the closer to Kaplan we got. Within minutes, we were enveloped in a swarm of what was reportedly 100,000 protesters.
Three Israeli soldiers had been killed earlier that day in the Negev in a rare outburst of violence along the usually quite southern border with Egypt. The organizers held a three-minute silence, one for each person killed. Then, the anthem was sung. Having arrived in Israel on the heels of a Holocaust trip to Poland punctuated by gas chambers, crematoria, and the unmarked graveyards of European Jewry, the moment had a visceral strength for me.
Israel — a nation of protesters, where people hold strong opinions on everything from child rearing to how best to board a bus to how to order hummus — remains united as a proud Jewish state, despite its political division. There was something distinctly Israeli in the manner which these protesters, many leftists and kibbutzniks, voiced their concern. Daniel Gordis, an American-Israeli journalist and author, underscored this unique phenomenon eloquently.
“These protests have had a single symbol: the Israeli flag. ‘We love this country as much as you do,’ said the left and the center to the right. ‘And it’s ours no less than it is yours,’” Gordis wrote in a piece for The Free Press.
That was it. An insistence that Israel – as a nation – isn’t perfect but is still deserving of respect because it’s their country, too. Across the various protests I attended, the symbols, iconography, and rituals of the Jewish State mattered. No flags were burned or desecrated. No shops destroyed. No looting.
I still don’t know which way I fall on this judicial-reform controversy. But I do know that when 100,000 Israelis sang their anthem in unison, proudly and warmly in the center of liberal Tel Aviv blanketed in blue-and-white flags, there was a lot of love.
“Our hope is not yet lost,” I heard myself quietly intoning in Hebrew. “The hope of 2,000 years. To be a free nation in our land. The land of Zion and Jerusalem.”
Whether that nation will remain free depends on who you ask, but there is certainly hope.