Case Study 2 — Israel's Judicial Reform Crisis, 2023

Why this case

The Israeli judicial reform crisis of 2023 is one of the most studied recent examples of democratic stress in an advanced, consolidated democracy. It illustrates several themes that comparative-democracy literature has identified — backsliding through formally legal channels, the role of judicial independence in democratic resilience, the importance of mass mobilization, and the vulnerability of democracies whose constitutional safeguards depend on convention rather than entrenchment. It also offers comparative implications for the U.S. that are uncomfortable but worth examining carefully.

This case study walks through the proposed reforms, the response, the eventual pause, and what the episode shows about democracy stress in advanced democracies. It is presented honestly as a contested case — defenders and critics of the reforms make substantive arguments; this case study attempts to steel-man both.

The Israeli constitutional baseline

Israel has no single written constitution. It has Basic Laws, passed by the Knesset over decades, that together function as a quasi-constitution. The Israeli Supreme Court — particularly after Chief Justice Aharon Barak's 1990s "constitutional revolution" — claimed power to review legislation against the Basic Laws and strike down inconsistent statutes.

Features distinguishing the Israeli system from peer democracies:

• No written constitution. Basic Laws can be amended by simple Knesset majority — more fluid than entrenched constitutions.
• Unicameral parliament. 120 Knesset members, no upper house.
• Pure PR with 3.25% threshold (raised from 2% in 2014). Produces fragmented coalitions of six to eight parties.
• Judicial appointment through a Selection Committee with three justices, two ministers, two Knesset members, and two Bar Association representatives. Critics argue this gives the judiciary effective veto over its own membership; defenders argue it protects independence from political capture.
• Standing. The Court has recognized broad standing since the 1990s and has used reasonableness review to strike down government decisions considered extremely unreasonable, even if not facially illegal.

The combined effect: the Israeli Supreme Court has been among the most powerful constitutional courts in the democratic world — and a perennial target of political-branch criticism, particularly from the right. Decades of conservative Israeli legal scholarship have argued the court has overstepped and that judicial selection produces ideological homogeneity.

The 2022 election and the coalition

The November 2022 Knesset elections produced a 64-seat majority coalition for Benjamin Netanyahu's Likud party plus several allied parties of the religious right and far right (Religious Zionism, Otzma Yehudit, Shas, United Torah Judaism). This was Netanyahu's sixth government; he had previously served as prime minister in 1996–99 and 2009–21. The coalition partners had specific judicial-reform demands as conditions of the coalition agreement.

In January 2023, Justice Minister Yariv Levin announced a comprehensive judicial-reform package. The proposals included:

1. Override clause. A simple Knesset majority (61 of 120 members) could override a Supreme Court ruling that struck down a statute.
2. Restructuring the Judicial Selection Committee. Increasing the number of political appointees and reducing the number of judges and bar-association representatives, giving the governing coalition effective control over judicial appointments.
3. Eliminating the reasonableness doctrine. Statutory limits on the Supreme Court's ability to review government decisions on reasonableness grounds.
4. Standing reform. Restricting who could bring cases to the Supreme Court, eliminating broad public-interest standing.
5. Subordinating government legal advisors. Reducing the independence of the attorney general and ministry legal advisors, who had historically operated as quasi-independent professionals.

The arguments — steel-manned

This case study attempts to present the strongest version of each side, because the Israeli reform debate involves serious arguments on both ends, and presenting only one side would do disservice to the comparative learning the case offers.

The reformers' case. Israeli legal conservatives argued the Supreme Court had over decades arrogated powers not grounded in the Basic Laws — aggressive reasonableness review, broad standing, de facto control over its own appointments. This produced, they argued, a judiciary unrepresentative (consistently center-left in a country whose electorate has shifted right) and unaccountable. The override clause would restore parliamentary sovereignty (citing Canada's notwithstanding clause). Restructuring the Selection Committee would make appointments responsive to electoral majorities, as in most peer democracies. Eliminating reasonableness review would confine judicial review to constitutional and statutory grounds. Reformers argued they were normalizing Israeli judicial review, not weakening it.

The opponents' case. Centrists, the security establishment, business leaders, and much of the public argued the reforms would dismantle the only meaningful check on parliamentary majoritarianism in a country with no written constitution, no upper house, and a unicameral parliament. The override clause would mean 61 Knesset members could enact any law they wished, including laws affecting their own immunity, their electoral chances, and minority rights. Restructuring the Selection Committee would produce a captured judiciary along Hungarian or Polish lines. Opponents argued the reforms were not normalization but capture — and that the timing (Netanyahu under indictment in three corruption cases) raised serious self-dealing concerns.

These two cases are not equivalent in all dimensions. The reformers' arguments draw on substantial comparative-law scholarship and have intellectually serious defenders. The opponents' arguments draw on substantial constitutional theory and on the comparative-democracy literature on backsliding. Both deserve fair hearing.

The protests

From January through summer 2023, Israel experienced the largest sustained protest movement in its history. Weekend rallies of 250,000 to 600,000 in a country of 9.7 million — the proportional equivalent of 9 to 22 million Americans in the streets weekly. The protests drew from a broad cross-section: high-tech, security reservists threatening to refuse duty, academics, lawyers, ordinary citizens.

Comparatively notable features:

1. Cross-ideological participation including religious-Zionist and centrist voters who supported some judicial reform but opposed the package.
2. Security-establishment involvement — hundreds of Air Force reservists and Mossad veterans publicly opposed; the security establishment had historically stayed out of political debate.
3. Economic mobilization — significant capital flight, investment freezes, public alignment from business leaders.
4. International concern — the Biden administration, EU, and credit-rating agencies expressed concern; Biden stated Netanyahu would not be invited to the White House under existing conditions.

The pause and the aftermath

In late March 2023, after a wave of protests including a strike by Israel's largest labor federation (Histadrut), Netanyahu announced a pause in the reform legislation to permit negotiations through the President's Residence. Negotiations between coalition and opposition representatives continued through the spring with limited progress.

In July 2023, the coalition advanced — and passed — one component of the package: a statute eliminating reasonableness review for cabinet decisions. The Supreme Court, in an unprecedented full-bench hearing in September 2023, struck down this statute by an 8–7 vote — a constitutional confrontation of historic proportions.

The October 7, 2023 Hamas attack and the subsequent war in Gaza fundamentally changed the Israeli political landscape. Domestic constitutional debate was suspended; national-security questions dominated political attention. The judicial reform package has not been re-advanced as of 2026, though the underlying tensions between the political branches and the judiciary remain unresolved.

In late 2024 and early 2025, there have been new tensions: the Netanyahu government has pursued specific judicial-related actions (the firing of the Shin Bet director; conflicts with the attorney general) that observers have characterized as continuing the underlying reform agenda through different mechanisms. Israeli democratic stress remains a live story.

What the episode shows

Several lessons emerge from the comparative perspective.

1. Backsliding can occur through formally legal channels. Every step the Netanyahu coalition took in 2023 was constitutionally permissible under Israeli law as it stood. The Knesset has the constitutional authority to amend Basic Laws by simple majority. The proposed reforms were not coup attempts; they were legislation. This is the defining feature of contemporary backsliding: it operates through legal channels using democratic majorities to weaken the institutions that constrain those majorities.

2. Mass mobilization can be effective. The Israeli protests demonstrably slowed and partially reversed the reform package. Comparative cases of successful resistance to backsliding (Poland 2023, South Korea 2024, Brazil 2022) all involve sustained citizen mobilization. Where mobilization has been weaker (Hungary), backsliding has progressed further.

3. Institutional architecture matters even when it depends on convention. Israel's reliance on conventional norms of judicial independence, security-establishment neutrality, and constitutional restraint proved fragile when those norms came under coordinated political pressure. Peer democracies with more entrenched safeguards (written constitutions, supermajority amendment thresholds, federalism) have additional defensive resources.

4. External shocks can suspend democratic debate. The October 7 attack effectively ended public debate over the reform package. Whether this is a permanent reprieve or merely a deferral remains unclear.

Comparative implications for the U.S.

What does the Israeli episode suggest for American democratic resilience?

1. The American written constitution provides protections Israel lacks. The U.S. has a constitution that requires supermajorities (two-thirds of Congress plus three-fourths of states) to amend. Most institutional safeguards — judicial independence, the structure of the Supreme Court, the separation of powers — are constitutionally entrenched. An American equivalent of the Israeli reform package would require constitutional amendment, not statute. This is a meaningful structural protection.

2. American institutional fragmentation provides defense. Federalism, bicameralism, judicial independence at multiple levels (federal and state), and separation of powers all create veto points that a unified governing coalition would have to overcome. Israel's unicameral, parliamentary, no-upper-house structure offers fewer defensive resources than the American constitutional structure.

3. American conventional norms — like Israeli ones — are vulnerable. Many American constitutional protections operate through convention rather than statute (presidential acceptance of election results, Senate confirmation norms, Justice Department independence from White House direction, professional civil-service neutrality). When conventions come under coordinated pressure, they may erode in ways analogous to the Israeli case.

4. American mass mobilization capacity matters. Comparative-democracy literature suggests that the capacity for sustained citizen mobilization is one of the most important predictors of democratic resilience. The American historical record on mobilization is mixed — major movements (civil rights, anti-war, Tea Party, Black Lives Matter, Women's March) have demonstrated significant capacity, but sustained week-after-week mobilization at the Israeli scale has been rare in American history.

5. The judiciary's role in democratic defense is contingent on its perceived legitimacy. The Israeli Supreme Court's capacity to resist the reform package depended on its broad legitimacy in Israeli society. Where courts have lost that legitimacy (Poland under PiS, Hungary under Fidesz), they have been less able to resist legislative restructuring. The American Supreme Court's legitimacy is itself a matter of significant contemporary debate; whether the Court could perform an Israeli-style defensive function under analogous pressure is contested.

The Israeli episode is not a prediction about the United States. It is a comparative case that illuminates the institutional architecture of American democracy and the conditions under which that architecture might or might not perform its defensive functions. As of 2026, both the Israeli and American constitutional orders are under stress in different ways. The differences in stress levels, and in defensive resources, are themselves part of what comparative analysis reveals.