Beginning in January 2023, just days after Israeli Prime Minister Benjamin Netanyahu’s return as prime minister, many prominent media outlets launched an assault on Netanyahu and his efforts to reform the Supreme Court. The Conversation headlined, “Israel’s Netanyahu facing off against the supreme court and proposing to limit judicial independence — and three other threats to Israeli democracy.” The Economist warned, “Reforms of the judiciary may profoundly affect Israel’s democracy.” Just two months later, National Public Radio went further, declaring, “Israel is in a pivotal moment of crisis, triggered by Prime Minister Benjamin Netanyahu’s plan to weaken the independence of the country’s judicial system.” The Israeli left-liberal Haaretz declared, “Netanyahu Quashes Democracy,” while The Atlantic condemned his “audacious attempt to revise Israel’s democratic order.” The Journal of Democracy, published from within the congressionally-supported National Endowment for Democracy network, framed the debate as “a struggle over the very future of democracy itself.”
These critics have it backwards. Netanyahu’s reforms do not threaten Israeli representative government; they instead would introduce accountability to a judicial system that critics say has operated as a bastion of unaccountable elites for decades.
The basis of representative government is accountability to voters, however indirect. Citizens elect representatives who make decisions, including judicial appointments. This creates a chain of legitimacy from the ballot box to government institutions.
Days after Israeli Prime Minister Benjamin Netanyahu’s return as prime minister, many prominent media outlets launched an assault on ... his efforts to reform the Supreme Court.
In the United States, Supreme Court appointments demonstrate how representative systems maintain judicial accountability. When a justice retires, the president nominates a replacement. The elected Senate confirms or rejects that choice. Both face voters who hold them responsible for these decisions. This system allows the court’s composition to evolve gradually with public sentiment. As new presidents and senators take office, they influence the court’s future direction. The process may be slow, but it remains accountable to the electorate.
Israel operates under a different system. When a Supreme Court justice steps down, a nine-member Judicial Selection Committee nominates a replacement. This committee theoretically represents a balance of powers and includes three Supreme Court justices; two government ministers, one of whom is the minister of Justice; two members of the Knesset; and two representatives of the Israel Bar Association. This consensus-based system has, according to critics, insulated the court from shifts in the electorate’s political mood.
While the court’s early appointments were explicitly partisan, reflecting the politics of the day, its modern era was defined by the “constitutional revolution” of the 1990s, which greatly expanded its power of judicial review. No election can dictate the court’s composition, as appointments to the Supreme Court require a supermajority of seven of the nine committee members, a rule that necessitates broad consensus between the political and judicial members. However, the system is not static; conservative Justice ministers have appointed a number of conservative-leaning justices in recent years, demonstrating that political shifts can influence the court’s makeup. Voter influence is indirect, exercised through the four representatives of the elected government and Knesset who sit on the committee. This rebuts direct representative governance over the judiciary.
Israel’s Supreme Court compounds its accountability deficit by overturning government decisions it deems “unreasonable.” This legal standard allows unelected, appointed judges to substitute their preferences for those of elected officials. The “reasonableness doctrine,” a holdover from British common law, empowers the court to strike down administrative actions deemed “extremely unreasonable”—those that no reasonable authority would have taken. When courts invalidate government actions based purely on judicial assessments of reasonableness, they stop interpreting law and start making it. This transforms judges into super-legislators answerable to nobody.
Netanyahu proposes neither direct judicial elections nor court-packing; he seeks gradual change through Israel’s representative institutions.
Netanyahu’s reforms would introduce greater political accountability to judicial selection. Instead of requiring consensus between politicians and legal professionals, the elected Knesset and the government it forms would gain influence over appointments. One key proposal would alter the composition of the Judicial Selection Committee and lower the voting threshold to a simple majority, effectively giving the governing coalition control over appointments. This approach mirrors practices in some, but not all, Western nations. The reforms also would restrict the court’s ability to overturn government decisions based on subjective reasonableness standards, requiring more concrete legal grounds. The Knesset passed this specific reform into law in July 2023, but the Supreme Court itself struck this down in a landmark January 2024 ruling.
What critics label radical is really moderation. Netanyahu proposes neither direct judicial elections nor court-packing; he seeks gradual change through Israel’s representative institutions. The threat to Israeli liberty is not Netanyahu’s reforms; it is a Supreme Court operating as a self-perpetuating elite, accountable to no one except itself.
Democratic governance has limitations. Societies often make poor choices and elect bad leaders. Representative systems sometimes fail to deliver justice or wisdom. Yet despite these flaws, such systems offer something invaluable that authoritarian regimes cannot: the ability to change leadership peacefully. When citizens grow dissatisfied with their rulers, they can replace them through elections rather than revolution. This peaceful transfer of power remains the cornerstone of stable, modern governance.
Israel’s current judicial system fails this basic test of representative government. Netanyahu’s reforms, whatever their limitations, would move Israel closer to a model of majoritarian governance, not further from it. The international community should stop reflexively condemning these changes and start questioning why Israel’s judicial system, as it now stands, remains such an outlier among other developed Western nations.
