When Israelis cast their minds back to the very state of the world that existed before the October 7 atrocities and ensuing war, they may recall a country seemingly consumed by a constitutional crisis.
The trigger was the plan by the government of Benjamin Netanyahu to overhaul the judicial system, unveiled in January 2023 at a press conference by justice minister Yariv Levin.
The intention to significantly weaken the High Court of Justice and the attorney general sent shockwaves through parts of the country, particularly on the left.
Levin claimed the judiciary had become too powerful, leaving the government weak and subordinate to unelected officials.
The government’s solution? A series of laws that would allow the Knesset to override decisions by the High Court, politicise the appointment of judges, weaken the power of the attorney general and cancel the High Court’s ability to strike down laws based on the concept of “reasonableness”.
Cue a veritable avalanche of condemnation from the current and previous High Court presidents, judges, attorney generals, prime ministers, and security chiefs.
Across the country there were demonstrations, often large-scale and increasingly frequent. Schools, universities, high-tech businesses and health professionals went on strike.
Police clashed regularly with protesters who shut down highways nationwide.
Political activists claimed Israeli democracy was under threat and even that the country was on the road to becoming a dictatorship, although more moderate critics of Netanyahu found such language hysterical.
The government’s proposed judicial overhaul was slowed down first by the extent of the protests and then when the national agenda was transformed overnight on October 7.
The plans were stymied in January 2024, when the High Court struck down a newly passed quasi-constitutional Basic Law that would have eliminated its power to judicially review whether government decisions were “reasonable”.
But in March last year the government passed a new law that gave the government much wider control over the appointment of judges.
And right before parliament dissolved this summer, Netanyahu’s administration embarked on a legislative blitz, passing more laws, including one that would allow ministers to ignore the legal position of the attorney general.
As Israel approaches the general election on October 27, the battle over the judiciary has largely been overshadowed in the campaign by what are for now more emotionally charged issues, most notably the failure to prevent the October 7 massacre and the dispute over Strictly Orthodox military conscription.
But the constitutional fight is still simmering, with potential to boil over, and is expected to spark heated debate as the nation prepares to go to the polls.
One of the key architects of the overhaul, Simcha Rothman, lawmaker from Religious Zionism and head of the Knesset Constitution, Law and Justice Committee, told the JC that most of the government’s judicial overhaul has been already passed (although the law seen as weakening the attorney general only comes into effect in the next Knesset).
What will happen if Netanyahu wins the election? Rothman predicts that the legislation won’t be struck down by the High Court judges.
“They will understand that the backlash will be terrible.
“But if the right does lose, the court will help the left fortify their position and cancel the legislation.”
Indeed, long-standing critics have announced their plans to do exactly that, and block what they see as dangerous constitutional changes.
One of the most prominent such voices is opposition leader Yair Lapid.
The former prime minister told the JC: “An independent judiciary, free press and freedom from religious coercion are hallmarks of any democracy.
“We are committed to cancelling the outgoing government’s legislation that undermines these – including the law politicising the selection of judges and the wild string of laws they passed in their final weeks.”
Going beyond simply blocking Netanyahu’s legislation, Lapid is one of the advocates for a written constitutional safeguard against what they see as existential threats to the vital powers of an independent judiciary.
He said: “What Israel needs is a constitution in the spirit of our Declaration of Independence that comprehensively and once and for all settles these questions and ensures Israel’s democracy is preserved for generations to come.
“After the chaos of the last few years, writing one will be one of our top priorities.”
One of the key pillars of Levin’s original judicial overhaul that never became law was the so-called override clause, which would allow a simple majority of 61 Knesset members to override High Court rulings.
The proposal passed its first reading in March 2023 before stalling. Should the coalition win another term, Rothman confirmed it intends to complete the legislation.
The High Court normally has a full bench of 15 justices. It currently has only 11 after Justice Minister Yariv Levin refused to convene the Judicial Selection Committee in January 2025.
Yaacov Bar-Siman-Tov, Professor of Law at Bar Ilan University, explained the political background.
He told the JC: “When the government couldn’t pass its reform, Justice Minister Yariv Levin simply stopped appointing judges.
“He insisted on specific candidates, and until they were accepted, judicial vacancies remained unfilled, leaving the courts understaffed.”
To Netanyahu’s opponents, the justices of the High Court are the ultimate guardians of democracy, ensuring that no government can trample on fundamental rights in a country without a formal constitution.
But Netanyahu and his supporters fiercely dispute the notion that the judicial plan is in any way an attack on democracy.
In fact they argue the very opposite, claiming that activist judges are obstructing the actions of a freely elected government.
From this point of view, the court has become an all-powerful institution that routinely overrides the will of the people – a so-called “deep state” dominated by a left-wing elite that clings to power through unelected institutions.
Rothman points to a number of High Court decisions to make his argument, including its ruling in April 2025 that Netanyahu could not fire Shin Bet chief Ronen Bar.
He said: “Show me a democratically elected government in the world that during wartime, the prime minister cannot remove the chief of the security agencies.
“To have self-appointing judiciaries that decide on a constitution that does not exist and was never accepted by the public, that’s not a democracy. It’s not even a constitutional democracy.”
For Prof Bar-Siman-Tov, the reality of the court is more nuanced than the picture painted by the government. “The High Court is often described as unusually powerful.
“But empirically, it strikes down legislation far less frequently than many constitutional courts in other democracies. There’s a significant gap between the powers it possesses on paper and how often it actually uses them,” he said.
Then there is the crucial question of a new law regarding the government’s powers to appoint judges.
The legislation as originally drafted would have given the governing coalition “effective control over judicial appointments”, according to Bar-Siman-Tov, although it has since been overhauled.
He says: “The final version is more moderate, but it still makes the process more political and weakens the emphasis on professional, merit-based appointments.
“And importantly, it affects every judge in Israel – not just the Supreme Court.”
Rothman identifies what he sees as a conceptual contradiction in the thinking behind the judicial overhaul plans. He says: “If you want the court to interfere in political issues then the selection mechanism should be political.
“If you say the court should never interfere in political issues, then you can say OK, let’s appoint judges in a less political way. Which I am all for, but that’s not the case in Israel.”
Still, despite the mass protests and storm of political fury before October, Bar-Siman-Tov is in agreement with many Israelis who believe some reform of the judicial system is needed.
“The judiciary certainly isn’t beyond criticism. One legitimate complaint is that the courts are often too slow.
“I also think the court has, at times, been overly activist, particularly during Aharon Barak’s era [Aharon Barak was the Supreme Court president from 1995 to 2006].”
But Bar-Siman-Tov warns the result of the changes may be worse than whatever flaws they are designed to correct.
“Judicial activism is not the same as political loyalty,” he says.
“It’s perfectly legitimate to appoint judges based on their judicial philosophy and to have a balance between more activist and more restrained judges.
“What’s dangerous is replacing that with a system designed to appoint judges because they’re politically loyal to the government. That’s a fundamentally different thing.”
He remains strongly concerned about the reform of the judicial appointments system, the weakening of the attorney general’s role, and the recently passed media law, which he claims “poses a threat to media freedom”.
“But the key point is that you have to look at the overall picture. Individually, some of these measures may not seem particularly alarming. It’s their cumulative effect that is potentially dangerous.”
All that can be said with certainty is that the issues around judicial reform are complex and incendiary.
Both sides will continue to believe they are guardians of democracy, in a debate that has potential to explode to the fore at any moment.
Other matters may dominate the current election campaign, but no one is under any illusion: the ideological clash that fuelled the seismic street protests in the months before October 7 has not gone away.
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