Photo Credit: Yonatan Sindel/Flash90
Simcha Rothman a Constitution Committee meeting at the Knesset, on January 16.

Like Sundays off, judicial reform has been advocated by various politicians and legal experts in Israel over the years but never took flight. Now, with protestors taking to the streets and clamor over the governing coalition’s judicial reform proposals at high octane, some are saying Israel is on the brink of revolution.

But Religious Zionist MK Simcha Rothman, chair of the Constitution, Law and Justice Committee and one of the leading proponents of the government’s initiative on this issue, says the judicial revolution actually occurred over the last few decades. Beginning in 1992, under then-Justice and Supreme Court President Aharon Barak, the country’s High Court appropriated increased powers to be able to rule on, or rather overrule, not only laws but all governmental decisions on a highly subjective basis, creating what Rothman calls “a serious democratic problem.” Barak also erased the rules of standing (that only one with a personal stake in a matter can file suit) and justiciability (that certain issues, such as military and political decisions, are not within the Court’s purview). This opened the door to, among other problems, a steady flood of anti-Israel petitions brought by left-wing, European-funded NGOs.


“What we’re doing is a counterrevolution to a revolution that has been conducted for the past 30 years,” Rothman says.

First elected to the Knesset in 2021, Rothman, a Netanyahu ally, has long advocated for judicial reform. The legislation he drafted for the current government is an outgrowth of his work as founder of the Movement for Governability and Democracy. Amid fierce public debate, he’s now trying to fast-track reforms to Israel’s judicial system, notably changing the process for selecting new Supreme Court justices, curbing the Supreme Court’s override powers, and investing the Knesset with an override power.

Rothman, a 42-year-old father of five, studied law at Bar-Ilan University and earned a master’s in public law through a joint Tel Aviv University-Northwestern program. He served as a chaplain in the IDF and is an alumnus of Yeshivat Kerem B’Yavneh.

The Jewish Press sat down with Rothman in his Knesset office to talk about his proposals, what’s at stake for Israel, and how he’s navigating the uproar.

Israel’s Supreme Court is substantially different from its counterpart in the United States. For readers who are not familiar with the Israeli system, can you share the main ways in which it differs from the American one?

The Supreme Court in the U.S. is founded in the Constitution, and the same Constitution that creates the [legislature] creates the Supreme Court. So they’re basically equal. In a parliamentary system like Israel, the Court is founded by the Parliament. So the Court is not an equal to the Parliament. The system of checks and balances is different – you need a coalition [to govern], the executive is not independent as it is in the U.S…. The structure is completely different. Yet the Supreme Court in Israel is way more powerful than it is in the U.S.

Just imagine as an American if the Supreme Court would say, “You know what? The Second Amendment is void.” Or “The First Amendment is void. We’re cancelling it.” No one could understand that. In Israel, that’s what the Court is threatening constantly to do, and some of the judges already have done it, but thankfully in the minority opinion. The Supreme Court of Israel cancelling a Basic Law is the equivalent of the Supreme Court in the U.S. cancelling an amendment to the [U.S.] Constitution or the Constitution itself.

And to make things even worse, it’s not even a per case issue. The Supreme Court in the U.S. deals with “cases and controversies.” No one can go directly to the [U.S.] Supreme Court and say, “I don’t like this law, it’s bad law, cancel it.” In Israel, it happens all the time [without] even showing any standing. There is no other country in the world where you can challenge a law directly in the Supreme Court without showing a case. We are trying to put checks and balances on the only unchecked and unbalanced power in Israel, which is the Court. We want to change the way the judges are selected and put checks and balances on the Court.

Israel does not have a formal constitution, but it has Basic Laws which the Supreme Court interprets as being like a constitution. Can you explain what that means?

The Supreme Court cancels regular legislation based on their interpretation of the Basic Laws. The Court says that a regular law cannot contradict a Basic Law even though there is no such clause in Israeli law. There isn’t even a vague saying like, “Basic Laws are the Supreme Law of the Land.” It doesn’t say it anywhere. And over the years the Court many times looked at Basic Laws and said they were just like any laws. [Then] in 1995, the Court declared that the Basic Laws are a quasi-constitution, and that it could cancel laws based on this quasi-constitution, and over the years [since then] the Court decided it could add to this quasi-constitution whatever it wants through very wide and broad interpretation, and lastly, it declared that if [the Knesset] will try to change this quasi-constitution by enacting a new Basic Law, it might cancel it. That’s the Court today.

If the Court were elected, you would say it’s getting its power from the same place that the Knesset gets its power from – from the public, from democracy, we the people. But this is a self-perpetuating court; they have a veto over who will get in. It’s a system that blocks political change. There is no other court in the world that has such power.

You’ve said that reforming the way judges are chosen is at the core of the reform project. Why is that so?

Today there’s no rule of law in Israel because the judges can basically disregard the law. One way to deal with it is a bad way: impeachment. I think it’s a very sad day when you need to impeach a judge. But you do need to appoint from the beginning a judge who has a basic sense of respect for the law. You cannot accept a judge that does not respect the rule of law in any democratic country.

Let’s talk about one of the major parts of Barak’s judicial revolution – the Supreme Court being able to strike down laws based on “reasonableness.”

“Reasonableness” when you talk about government action means the Court is replacing the government’s discretion. The equivalent in the U.S. would be that someone would say, “Blinken – not a good Secretary of State. I’m appealing to the Supreme Court and saying that appointing Blinken as a Secretary is not reasonable. No reasonable President would ever appoint Blinken.” And then the Supreme Court would say, “Blinken once said something in an interview and we didn’t really like it. Yes, it’s not reasonable. Go away, Blinken.” This kind of situation happened in Israel many times – with ministers, with high-level officials, with officers in the army. And it should never happen in a democratic country. It’s not only about not appointing someone. It [also] goes the other way around, where the Court says, “It’s not reasonable that you won’t appoint someone. I am making you appoint [that person].” So the Court actually appointed the head of the Israeli IRS in that way. [In 2012, Finance Minister Yuval Steinitz was ordered by the High Court to appoint Moshe Asher as director general of the Israel Tax Authority.]

Was that actually a case before them? Who was bringing the case?

The guy who wasn’t appointed. They said to the minister, “It’s not reasonable for you not to appoint him. You have to appoint him.” Crazy, crazy, crazy!

Reasonableness sounds something like the test applied by American courts in many areas of law – and yet in practice it’s actually quite different. Can you elaborate on that?

The Court’s decisions here have nothing to do with objective criteria. Reasonableness is such a powerful tool. It gives you all the power you need. You don’t need to consider anything else. You don’t need to explain too much – it’s unreasonable, that’s it. There’s no wrong answer. I have my opinion, you have yours – prove me wrong. That’s why [the judges] use it all the time.

Has the activist trend continued to hold sway on the Court since Barak’s tenure ended in 2006?

I would say yes. Look at 2017, more than a decade after Barak left the court – the Court invalidated five laws in the same year. And more since then. And [judicial review of] Basic Laws is a completely new level of activism. Even Barak didn’t consider it seriously at the time.

Your bill would require the entire 15-justice court to vote unanimously in order to strike down a law. Could that level of consensus realistically ever happen?*

I’ll tell you an interesting fact: Out of 22 of the laws that were invalidated until now, 10 laws were invalidated unanimously. Ten out of 22, since the Court started doing this – in 1995 it declared it had the power and in 1999 was the first time it actually invalidated a law. Basically what we’re trying to do is bring things back to the way it was before [then].

You can address the issue in two different ways. The way that is currently on the table [and which passed in the first reading of the bill in the Knesset] is that the Court can invalidate laws but it has to do it unanimously, which is very difficult, and the Knesset can override that decision. That would accept the idea that Basic Laws cannot be overruled – they would enjoy the same status that regular laws enjoyed before 1995.

The other way which I am going to propose [as an alternative] is to throw the idea of a distinction between Basic Laws and regular laws out the window and decide that they are the same. And all the Court can do is declare that from the Court’s perspective there is some kind of inconsistency, an incompatibility of a law with a Basic Law. That’s the U.K. model. Implementing the U.K. model would mean that the Court doesn’t even have the authority to strike down laws. All it can do is just point out the contradictions that it finds. And then the Knesset may amend the law according to what the Court suggests, or it may not.

For Americans, judicial review is seen as a key prong in a healthy system of checks and balances. Americans are afraid of the idea of a runaway legislature.

In America, it makes sense to have that kind of [judicial review] process because you have a constitution. We don’t have a constitution. The Basic Laws are not a constitution. The whole idea of a constitution is something you can come together and agree on. We never had that moment. [Editor’s note: Interestingly, the name of the committee Rothman chairs, the Constitution, Law and Justice Committee, was originally entrusted with writing a constitution for Israel in 1949 – something that never came to fruition.]

Is creating a constitution on the table? Or is that moment lost forever?

I don’t think it’s lost forever. Of course it’s on the table. But until the Supreme Court is taken out of the equation and the sides actually have to negotiate and compromise on things they care about, we can’t do anything. And that’s the problem now – everything we do in the legislature is affected by the fact that the Court has the last word on everything. When you have a player outside the system with a veto power and you can’t control it, the legislature knows that everything is just a draft. It prevents compromises. Why would you compromise if you know that the final arbiter is going to come out against you?

One of the most controversial proposed reforms would allow lawmakers to override Supreme Court decisions with a majority of the entire Knesset – 61 votes. Even in the U.S., Congress can’t so easily override Supreme Court decisions. Why not require a supermajority or some higher threshold, which perhaps would create more consensus around this issue?

The whole principle of what we’re trying to promote here is to fix the anomaly that Barak created – in which you don’t have a constitution, but you have constitutional review. We are the only country in the world where this happens. If we had a constitution, we wouldn’t need an override. A complete majority makes sense. [Requiring] even one vote above 61 means I’m giving the minority the power to control the majority. I think that from a democratically principled theory of government, that is unacceptable. The only justification for something like that is if the constitutional material the court is using in order to review the legislation was itself accepted by a supermajority [such as the U.S. constitution]. Otherwise it just doesn’t make sense. If the Court says that a law contradicts the Basic Law of Human Dignity and Liberty, that [Basic Law] was passed by 32 to 21 MKs – not even a majority of the Knesset was present! You can’t justify [requiring a supermajority] from a democratic perspective. And 61 is not easy to maintain, it’s not as easy as it sounds.

Does the Supreme Court’s activist approach influence the mindset of new judges and potential jurists who are educated in the country’s law schools and influenced by the legal culture about the role of judges in a democracy?

Completely. There is no opposition to this. Almost no opposition. Not anymore. In the beginning there were some prominent legal thinkers that were very much opposed to what Barak was doing and they were also very vocal about it. But in the end, after 30 years of weeding out all of these voices, and anyone who wanted to advance in the system had to embrace [these ideas], you don’t even have those. Even those who lean right – if they would have been brought up in a different legal system, they would have been more conservative. But in Israel they just accept all these ideas and doctrines.

Are there any voices from the bench agreeing with the need for reform, and how free are they to articulate such views?

They’re not allowed to. I’ve had personal conversations with some of them but I can’t say anything about that. I can talk about what they do through their decisions. Justice Alex Stein understands the problems that Barak created. He’s a conservative, so slowly he’s trying to do it in an intelligent way, to reverse some of the damage that Barak did. But it can’t work with one justice. It has to be a movement – you have to have at least a few. If the opposition has a say, none of the real reformers will ever get to the Supreme Court.

Opponents and protestors, mostly from the left, frame their battle as a matter of “saving democracy.” Yet the Supreme Court in Israel is not in fact democratic, with the judges not elected or subject to approval by officials who have actually been elected. Why isn’t the right seizing more strongly on this appropriation of the democratic banner?

The only way I could explain this to people is by badmouthing the Supreme Court. I have to do it internally because it’s a real problem. But do I really want to go around telling the world and shouting that the Supreme Court of Israel is undemocratic and biased? I founded the Movement for Governability and Democracy. One of the major issues I had was fundraising. To go around to Jews around the world who love Israel and tell them, “You have to give money to this organization to save Israel from its Court…” They’re proud of their state. You know what? Generally speaking, they’re right to be proud of the State of Israel, the homeland of the Jewish people. There is a lot to be proud of. But should I go around the world and explain that the court is so terrible? Do I want this criticism of Israel coming from the coalition, the government?

What about conveying that message here in Israel?

Here in Israel there is no argument. I never saw this coalition or almost any other coalition so united about an issue. In the plenum where we voted, even ministers who are not Knesset members, who did not have to stand at 1 o’clock in the morning for a vote after hearing long speeches, they said, “We’re not missing this day for the world because this is what we’ve been waiting for for 30 years – to bring back democracy to the State of Israel.” Our side knows it, big parts of the other side know it. My reform is moderate compared to some of the reforms Lieberman offered over the years, some of the reforms Gidon Saar offered over the years, definitely more so than those of Matan Kahana and Zev Elkin over the years. Those are members of the opposition, and they are not objecting to it because it’s a bad reform but because they are in the opposition.

The opposition seems to have committed itself to a hard-line position against any reforms. Has there been any dialogue behind the scenes that doesn’t make the headlines? Are there any partners on the other side?

I really hope for dialogue and cooperation. In the meantime, most of the leaders of the opposition are afraid and threatened. I think never ever has the chair of the Constitution Committee needed to have security. I need security. Why? Because my life is threatened.

I wanted to ask you about that – how has the situation has affected you and your family personally?

My family is worried. I myself am here in this building most of the time so I don’t have time to worry. But my family is very worried. There are security measures; it’s becoming more of a problem. On some days of the demonstrations I’ve had to go around within the Knesset building with security. If people from the right were behaving toward the left the way the left is behaving toward the right today in Israel, the end of the world would have come. And it’s not people on the fringe, someone that no one knows of – the head of the opposition is a former prime minister using violent terms like war.

Are you surprised by the level of pushback to your proposals? Is it more or less than you expected?

I knew that it would not pass silently. I think most of it is not about the reform. The protests are not against judicial reform – they are against the fact that we have a coalition, that we have a coalition which is right-wing, that some of [its members are] religious. People are afraid of having theocracy, all those fears that they hear from the head of the opposition. It’s not someone crazy on the streets – these are heads of parties!

What about the protestors on the streets?

They’re afraid because their leaders tell them terrible lies. Their fear is real. I am not angry at them; I am trying to be sympathetic with them. But their leaders are reckless, dangerous people. [Those arranging the protests] are saying that anyone who is contributing to the Israeli economy needs to stop. The New Israel Fund, Zulat, other organizations… Now that’s a BDS campaign! Because they lost the elections, because we want to elect our judges like any other democratic country in the world. The protests are not about judicial reform – they are against this government.

Many protestors assert that the real purpose of the current reform plan is to keep Netanyahu out of prison. Cynical, yes – but is there any truth to that claim? How much of a factor do you think antipathy to Netanyahu is for those shouting down the reforms?

I think that 99% of the protestors don’t understand constitutional theory and they don’t care about the wording of a statute. They are terrified of Israel becoming a theocratic state. That’s the issue. They’re afraid of people who they deem racist and too religious and non-liberal in power in Israel. If the Supreme Court for instance was made up of dayanim [judges of Jewish law], they would be the first to support reform, because in the end the issue is that they believe that Israel is going to change completely on policy issues if the reform passes. The only thing I can say to that is that it’s wrong – it’s not what’s going to happen. Israel is going to continue being almost exactly the same. On the issues of right and left, when the right wins elections the policy will be more right-wing, and when the left wins elections the policy will be more left-wing, like everywhere else in a democracy. But claiming that Israel is going to cease being a democratic state, cease being a liberal state – I see it as detached from reality.

So Netanyahu is not a big part of the equation?

Since I went into law, this has been one of my major projects in life to fix the problems that were made in the 1990s by the Supreme Court. I’ve been working on this for 15 years now. [Justice Minister Yariv] Levin’s been working on this for 20 years now. That’s way before Netanyahu’s cases ever started. We’re doing what we think is right and what we have been thinking is right to do and were trying to do for the past decade at least.

The protests are raging and the issue has been quite divisive. Could it be possible for reform to be accomplished with less divisiveness? Perhaps it would require compromising on some of the end results that you’re hoping to achieve, but could that somehow generate more public support and consensus?

We are willing to discuss everything – we’ve been saying this from the beginning. Each and every part of the reform is open for discussion. There are some principles that I don’t think we can ever agree on to decide to leave out, but let’s talk about those issues. And if anyone from the other side comes forward to sit down and talk to us about it, we’re open for discussions. Just come and talk to us. But we will not accept ultimatums. We will not accept conditions like stopping the legislative process. The legislative process is a discussion. Any legislative process is a conversation. You come, you present a text, people talk about it. That’s what we’re having. They’re trying not to have the conversation.

You’ve made clear that you won’t agree to a freeze of the reform bills. Why do you believe time is of the essence on this issue?

The reality of the way politics in Israel works is that you never know what’s going to happen. This is our time; we don’t know if we’ll have more time than these few months before something happens and the opportunity will just evaporate. It’s just too precious a moment for us to neglect.


* Editor’s note: At press time, Rothman announced that the bill was being amended to require a majority of 12-13 justices rather than a unanimous 15.   


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Ziona Greenwald, a contributing editor to The Jewish Press, is a freelance writer and editor and the author of two children's books, “Kalman's Big Questions” and “Tzippi Inside/Out.” She lives with her family in Jerusalem.