Although I am a lawyer, I am not admitted to practice law in Israel. Thus, I do not have expertise in Israeli law. However, I do understand politics and the roles of the courts in society. Therefore, I will venture into the issue of the new proposal which will significantly change the legal system in Israel.
The first question that must be asked is why now. Israel has had the same court system since its founding 75 years ago. This system has been in place when there have been left-wing governments, centralist governments, and right-wing governments.
Also, what are the motives behinds those who are pushing the “reforms”? It does not good look when the prime minster, who is proposing the reforms, is under criminal indictment. Whether in fact the reforms will result in him being cleared of any charges can be debated. However, the possibility of personal gain puts a cloud over the proposal.
Moreover, the people who are pushing the reforms are upset because they do not like the rulings of the Court. The implication is that if the Court were ruling in their favor, they would have no problem with the existing system.
This reminds me of the idea of court-packing, which is increasing the number of Justices in the United States Supreme Court. If court-packing would be allowed, then the party that had the presidency and the majority in the Senate can put in more justices to create a majority on the Supreme Court, which would rule in their favor.
This plan was first proposed by President Franklin D. Roosevelt in February 1937. He proposed that he be allowed to appoint an additional justice for every existing justice not retired by age 70. This would allow him to promptly handpick as many as six new judges for the bench. Roosevelt was upset that the Supreme Court was repeatedly declaring that his signature proposals that were passed by Congress were unconstitutional. Roosevelt could legitimately claim that he had a mandate from the people, since he won the 1936 presidential election in a landslide. Furthermore, the Democratic Party had a majority in both the House and Senate. This is the same argument that I hear from those on the right in Israel. Of course, they have nowhere near the mandate that Roosevelt had, since governments in Israel keeping falling, one after another.
Recently, some progressives have also proposed this idea because they are upset by rulings of the Supreme Court, including those relating to abortion. They argue that the Supreme Court is not representative of the county. The Court has five conservative justices, one moderate/conservative justice, and three liberal justices. That is not the breakdown of the county. For example, the Gallup poll indicates that in 2022, 36% of the country identified as conservative, 35% as moderate, and 26% as liberal.
The court-packing plan was the only significant proposal that Roosevelt was unable to pass as president. Today, the idea is not supported by the vast majority of Americans. This includes those on all parts of the political spectrum. The irony is that those Americans arguing in support of the changes in Israel would be up in arms if progressives proposed such a plan here in the United States.
It is important to understand the role of the courts. the courts do not make decisions based on what polls show that citizens want or what elected officials claim they want. It is based on the interpretation of the law. In the United States, many times it involves the situation when a law is passed by the legislature and the courts have to decide whether it is constitutional. This decision is not left to the legislature, as decided by the Supreme Court in the famous case of Marbury v. Madison in 1803. Sometimes the law requires the Court to render decisions that may not be popular with the public.
The Court serves an important role in the system of checks and balances. The weakening of the Court’s role is what concerns many in Israel. That is also why there is much criticism of the proposal from overseas democracies, including from the United States. This is not a left versus right argument.