The Summer of Discontent
by Paul Scham
We have seen the massive protests in Israel since January, furiously protesting the judicial coup being attempted by the far–right governing coalition. The protests surged in March and April, when it appeared the coalition would force its “reform” bill through the Knesset. However, the temperature subsided somewhat just before Passover when the protests achieved what all recognized was a temporary victory, and the bill was stayed. Prime Minister Netanyahu almost surely hoped against hope for a compromise on the issue, but it was not to be. The coalition radicals, including Itamar Ben Gvir, Bezalel Smotrich, and Yair Levine in the cabinet, and Simcha Rotman as Chair of the Knesset’s Constitution, Law, and Justice Committee, have indicated they are willing to bring down the coalition if they don’t get their “reforms” passed in the current summer session of the Knesset, and Bibi caved. Given that the polls indicate a loss of as many as 14 seats for the coalition parties were new elections to be held, only true ideologues like the aforementioned might really take that chance. The comparison between Bibi and the Speaker of our House of Representatives, Kevin McCarthy, vis-à-vis his own far-right radicals is unavoidable – and pathetic.
By law, the Knesset summer session ends on July 30 and the winter session only begins after the fall cycle of Jewish holidays; this year on October 15. By then, two Supreme Court justices will have reached the statutory maximum age of 70 and must retire. The judicial coup, once thought by its advocates to be able to slip through the Knesset virtually unnoticed, is foundering – unless legislation is passed by July 30. That may well happen, unless some of the rumored “moderates” in the coalition parties choose to stand in front of the speeding train – or fall on their swords; choose your metaphor. Possibly they’d be hailed as heroes; more likely they would share the fate of those Republicans who voted for Trump’s second impeachment; i.e., they’d almost certainly end their political careers. A major part of that legislation, of course, would serve to significantly limit the power of the Supreme Court to invalidate legislation passed by the Knesset.
But let’s assume that politics takes its usual course, that of the least resistance, and the legislation passes. It becomes law; there is no second chamber or presidential veto to worry about. BUT – and here we are truly in uncharted waters – the Supreme Court is virtually certain to strike down the legislation limiting its power to strike down legislation.
“A paradox, a paradox, a most ingenious paradox!” W.S. Gilbert wrote in Pirates of Penzance. But outside operetta-land, there may not be an equally ingenious solution. When norms break down in real life; it is extremely difficult to reconstruct them. Though the issues are particular to Israel, the larger issue of breaking norms is eerily similar to the US situation. However, for better or worse, there is no Israeli Trump. Bibi, though head of government and under indictment, is not a Trump though, as I noted, he’s being intimidated by a fraction of his own party willing and able to bring him down, just like Speaker McCarthy.
When I was in law school many years ago, another student presented the professor in an advanced constitutional law course with a similarly convoluted hypothetical in an American context. I’ve managed to forget most of what I learned in law school but I remember the professor’s response almost verbatim: “If things have gotten to that point, it really doesn’t matter what the law says.” Nowadays, unfortunately, I’m sure that a lot of constitutional law professors in the US, Israel, and other countries are not dismissing the question but have to come up with real answers for what to do when populist legislators decide to barrel through norms that have stood for decades, or even centuries.
What was starting to happen before Bibi backed down in April will probably repeat itself in July. Air Force reservists will not show up for essential stints. Different parts of the state apparatus will have to decide that they will follow either the Court or the Government, and thus choose which is legitimate. General strikes will break out. The rule of law will start to break down until…?
As noted, those are uncharted waters, so no one can predict with any confidence how far this may go. Both Israelis and Americans have gotten used to crises in recent years, such as those over our perennial increase in the authorization of the national debt being settled at the last minute. Maybe there will be such a last-minute settlement in Israel; maybe not.
No one, however, has the luxury of assuring themselves that their worst crises will happen in isolation. In this case, just as the government coalition is forcing through some fundamental and deeply controversial measures in the domestic sphere, it is doing the same with the Israeli-Palestinian conflict, which most Israelis would much prefer not to think about. While violence has been increasing for over a year, meaning both Palestinian attacks and nightly IDF raids in the West Bank, the increased aggressiveness of both the IDF and of settler vigilantes in the last few months is a direct result of policies championed by Ben-Gvir, Smotrich and their followers. In particular, the two settler pogroms – and I use that word in full awareness of its historical resonance to Jews – at the villages of Hawara and Tumas Ayya while the IDF stood by, signify to many Palestinians that they have nothing to lose. Unlike the domestic issues discussed above, however, we do know where this violence is likely to lead. The two intifadas of 1987-93 and 2000-05 caused thousands of deaths, and the Second helped prevent any progress in ending the Occupation for the last twenty years. The assurances of today’s Israeli radicals that Jewish determination will always prevail over Arab resistance are refuted by history.
This summer has officially just begun – and the omens are grim. I will be happy at summer’s official end – which happens this year to coincide with the Ten Days of Penitence between Rosh Hashanah and Yom Kippur – if I can apologize to my readers for having been unnecessarily ominous in my expectations.
Nevertheless, my best wishes for a happy – and peaceful – summer.
Paul Scham is the director of the Gildenhorn Institute for Israel Studies at the University of Maryland (UMD), a professor of Israel Studies at UMD, and a non-resident scholar at MEI. He is also the President of Partners for Progressive Israel.