In Israel, unaccountable jurists have usurped unparalleled powers

Having been involved in efforts to resolve Israel’s 2023 constitutional crisis, and as someone from the political left with a background as a lawyer for the Association for Civil Rights in Israel, I came to realise that resolving the legal crisis requires first addressing the deeper social conflict.

At its core, the crisis stems from a demographic decline of a sociological group that perceives itself as the constitutional heir to Israel’s founding Labour Party. This Ashkenazi secular group has historically dominated the country. It is an educated, globally connected class with liberal values, but it has increasingly found itself on the losing side of elections.

Since the 1977 electoral victory of Menachem Begin’s right-wing government, this group has gradually lost its grip on political power. In response, it moved aggressively to transfer powers to professionalised institutions it still controls—such as the judiciary, the finance ministry’s budget department, the Bank of Israel, and academia.

The appointment of Aharon Barak to the Supreme Court in 1978 marked the beginning of a major power shift to the judiciary, which unfolded in three waves:

1. The 1980s – Barak declared that "everything is justiciable" and diluted the "standing requirement", thus allowing NGOs to bring political issues to the Court. In this sense, the Israeli Supreme Court is distinctly different from the U.S. Supreme Court, which maintains these procedural threshold requirements. In addition, it granted itself vast discretion to intervene in governmental decisions based on a loose definition of "reasonableness".

Common law jurisdictions (of which Israel is one) apply the well-known Wednesbury principle that sets out the standard of unreasonableness as grounds for judicial intervention in government action. According to the Wednesbury principle, judicial intervention based on unreasonableness is only justified if it is “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.

Barak essentially abandoned this strict test in the 1980s and instead crafted the “balancing” version of reasonableness, in which judges exercise discretionary executive powers if they conclude that the government did not correctly weigh or “balance” different factors or considerations.

2. The 1990s – The Supreme Court broadly interpreted the Basic Law of Human Dignity and Liberty, originally a limited compromise between Israeli liberals and conservatives, transforming it into a broad constitutional bill of rights.

3. Recent years – Judicial activism reached new heights when the court annulled a constitutional amendment designed to limit the excessive use of the reasonableness doctrine in early 2024.

The Court's power exceeds mere direct judicial intervention. In 2018, for example, during the Hamas Gaza border riots, the Supreme Court dismissed a petition from left-wing NGOs challenging the military’s rules of engagement. However, this decision came only after the Attorney General and military prosecution had pledged to impose stricter rules of engagements—measures that may have contributed to the collapse of Israel’s security perimeter. Yet the judiciary has so far evaded responsibility for its potential role in the October 7 disaster. Thus, even when the Court dismisses a petition, it imposes a "culture of justification" enforced by legal advisors and the state attorney's office. In this way, the Court indirectly shapes the outcomes of governmental or security policies without direct intervention.

Nowhere else in the democratic world does an Attorney General wield as much power as in Israel. The Attorney General is both the chief prosecutor and the legal "advisor" to the government—but with binding authority. Even if the government disagrees with the Attorney General’s legal opinion, it must comply. If the government wishes to present its position before the Supreme Court, it needs the Attorney General’s approval. There have been cases where the Attorney General refused, thus preventing the government from defending its own policies in court.

This will also be the case with Bar’s dismissal as Baharav-Miara already said she wouldn’t defend the government. She also opposes a pending bill—set to pass with a significant parliamentary majority—that would reform
the Judicial Appointments Committee, requiring Supreme Court justices to be selected by consensus between coalition and opposition representatives. According to her, this constitutes an improper “politicisation” of judicial appointments even though in the vast majority of constitutional democracies, supreme court judges are appointed and approved by politicians.

In some instances, even the Supreme Court found the Attorney General’s interpretations absurd. Nevertheless, it was the Supreme Court that granted these extraordinary powers to the Attorney General, which functions as the court’s control and enforcement arm within the executive branch.

It was Aharon Barak in the 1990s who ruled that the government must obey the Attorney General’s directives—while citing a report that stated the exact opposite. Today, the Attorney General holds more power than Supreme Court justices themselves, exerting unparalleled influence over national policy. It should be noted that Baharav-Miara was appointed by the previous left-leaning government, yet her dismissal due to constant disagreements with the government would undoubtedly be challenged before the Supreme Court.

Israel’s security agencies are deeply entangled in the ongoing struggle between the declining old hegemony and the emerging sociological groups—nationalist and traditional sectors—that increasingly seek to shape the country’s future. This is a critical point in the current constitutional crisis.

The Supreme Court has acknowledged the Attorney General’s authority to declare a sitting prime minister "incapacitated" if she deems that his current trial prevents him from governing effectively in wartime. Imagine if the Attorney General were to invoke this stupendous power, endorsed by the Supreme Court, but Netanyahu refused to comply.

At that point, the crisis would come down to what one calls the "Bodyguard Test": Would the bodyguard at the entrance to the prime minister's office allow Netanyahu entry or not? In such a scenario, the bodyguard would probably escalate the question up the chain of command—until it reached the Shin Bet director, who would have the final say.

Ultimately, in moments of constitutional crisis, security chiefs do decide based on questions of allegiance. This is why the battle over the identity of the Shin Bet chief is so critical in Israel’s current constitutional crisis.

The judiciary, empowered by decades of activist rulings, is locked in a struggle with an elected government determined to restore democratic accountability. Meanwhile, security institutions, legal advisors, and bureaucratic elites continue to resist reforms that threaten their historical dominance.

Whether Israel emerges from this crisis with a more balanced legal system that resembles more closely that of other Western democracies or descends further into institutional chaos depends on how these competing forces navigate the coming months. One thing is certain—this is not just a legal dispute. It is a struggle over who holds the keys to the State of Israel–government by the people or a few unaccountable and unelected jurists.

Moshe Cohen-Eliya is a professor of comparative law and the former President of the College of Law and Business. Together with Professor Iddo Porat he is the co-author of the forthcoming book Supreme Courts in the Age of Political Polarization, which is due to be published by Cambridge University Press in 2025.