Daniel sent us this one — and it's a big one. He's asking what the judicial reform debate in Israel was actually about, and why Israeli politicians seem to be in a permanent state of war with the judiciary and the attorney general. And honestly, if you've been following the headlines, you've seen the protests, the strikes, the apocalyptic rhetoric — but the actual legal mechanics are almost never explained. So let's do that.
The image that stays with me is March twenty-seventh, twenty twenty-three. Over six hundred thousand Israelis in the streets on a single day. That's roughly six percent of the entire population. Proportionally, that would be like twenty million Americans protesting at once. And it wasn't about war or peace or the economy. It was about a set of legal reforms that most people outside the country had never heard of.
Which is wild when you think about it. Six hundred thousand people don't show up for a technical dispute about judicial review standards. Something deeper was going on.
Something deeper was absolutely going on. And here's the thing — the protests have cooled since October seventh, but the underlying structural fault line hasn't moved an inch. As of right now, the Knesset is again considering legislation that would limit judicial review. So the question isn't settled. It's just on pause.
Let's establish the playing field. What is this debate actually about, in one sentence?
It's about who has the final say in a country that has no formal constitution — the elected legislature or the unelected Supreme Court.
The attorney general keeps ending up in the headlines because?
Because in Israel, the attorney general is simultaneously the government's legal advisor, the head of the prosecution, and the person whose legal opinions are binding on the entire executive branch. When the prime minister is under indictment and the attorney general is overseeing that prosecution while also telling him what he can and can't do — you've got a structural conflict that's basically a powder keg.
There are three actors here. The Knesset, which is the legislature. The Supreme Court, which is the judiciary. And the attorney general, who's this weird hybrid — part watchdog, part legal advisor, part prosecutor. And none of them agree on where the boundaries are.
And the reason none of them agree is that Israel has been operating for over seventy-five years without a formal constitution. Instead, it has fourteen Basic Laws that function as a de facto constitution. But here's the crucial detail — these Basic Laws lack entrenchment. The Knesset can amend them with a simple majority. So you have a legislature that can change what passes for a constitution with sixty-one votes out of one hundred twenty, and a Supreme Court that says some of these laws are so fundamental that even the Knesset can't violate them. That's the collision.
Pick that apart for me. What does entrenchment mean in this context?
In most countries with a written constitution, you can't just amend it with an ordinary majority. The US requires two-thirds of both houses plus three-quarters of the states. Canada requires a complex amending formula involving federal and provincial consent. Germany requires a two-thirds majority in both houses. The point is — constitutions are supposed to be harder to change than ordinary laws. Israel's Basic Laws aren't. They were passed by simple majorities, sometimes on narrow margins, and they can be changed the same way. So the question becomes — if the Knesset can change the constitution whenever it wants, does Israel even have a constitution?
The Supreme Court said yes, it does, and we're the ones who get to enforce it. Which the Knesset never explicitly agreed to.
And this goes back to what Israeli legal scholars call the constitutional revolution of the nineteen nineties. In nineteen ninety-two, the Knesset passed two Basic Laws — one on human dignity and liberty, and one on freedom of occupation. The first passed by a vote of thirty-two to twenty-one. The second passed twenty-three to zero only because the opposition walked out. These were not broad national consensuses. These were narrow, almost accidental majorities. And yet Chief Justice Aharon Barak, who was the dominant legal figure in Israel for decades, interpreted these laws as granting the Supreme Court the power to strike down Knesset legislation that violated them.
A thirty-two to twenty-one vote in a legislature with a hundred and twenty members becomes the foundation for judicial review. That's a pretty thin mandate for a constitutional revolution.
It's remarkably thin. And here's the mechanism Barak used. Both of those Basic Laws contained what are called notwithstanding clauses — provisions that said the Knesset could pass laws that conflict with these Basic Laws, but only if the law explicitly stated that it was doing so. Barak read this as an implied grant of judicial review. His logic was — if the Knesset has to explicitly override the Basic Law, then by implication, ordinary laws that don't include that explicit override are subject to the Basic Law's limits. And the Court gets to decide when the line is crossed.
Which is a clever bit of legal reasoning, but it's also the kind of thing that makes legislators feel like the rules of the game were changed without anyone asking them.
That's exactly the grievance. The Knesset never passed a law saying the Supreme Court can strike down legislation. The Court essentially found that power in the structure of the Basic Laws themselves. If you're familiar with American constitutional history, this is Israel's Marbury versus Madison moment — except more extreme, because in the US, judicial review was implied from a written constitution that was hard to amend. In Israel, it was implied from Basic Laws that the Knesset can change with a simple majority.
The Court created its own review power, and the Knesset retained the ability to change the constitution anytime it wants. That's a recipe for perpetual conflict.
That conflict eventually crystallized around a single legal doctrine — the reasonableness standard. This is the match that lit the fuse in twenty twenty-three.
Explain the reasonableness standard. Because it sounds like the most boring technical concept imaginable, and yet it brought six hundred thousand people into the streets.
The reasonableness standard is a doctrine the Israeli Supreme Court developed over decades that allows it to overturn government appointments and decisions that are, quote, extremely unreasonable. It's not about whether something is illegal. It's about whether a reasonable decision-maker could have made that choice. The Court can look at a cabinet appointment or an administrative decision and say — this is so far outside the bounds of reasonable judgment that we're striking it down, even if it violates no specific law.
It's not a question of legality. It's a question of judgment.
And the trigger event for the entire twenty twenty-three reform push was a specific application of this doctrine. In January twenty twenty-three, the Supreme Court ordered Interior Minister Aryeh Deri removed from office. Deri had been convicted of tax fraud and received a suspended sentence. He was appointed to the cabinet anyway. The Court ruled that appointing someone with a recent criminal conviction to a senior ministerial position was extremely unreasonable, and ordered Prime Minister Netanyahu to fire him.
Netanyahu had just formed a government. Deri was a key coalition partner. This hit him immediately.
Within weeks of taking office. And the response came from Justice Minister Yariv Levin, who announced a comprehensive reform package designed to fundamentally rebalance the relationship between the Knesset and the Court. The package had four main pillars.
Walk me through them.
First, an override clause. This would allow the Knesset to re-pass a law that the Court had struck down, using a simple majority of sixty-one votes. So the Court says a law violates Basic Laws — the Knesset says fine, we're passing it again anyway. Second, eliminating the reasonableness standard for government decisions. The Court could no longer strike down appointments or policies just because it considered them unreasonable. Third, changing the composition of the judicial selection committee to give elected politicians a majority over judges and bar association representatives. And fourth, making the attorney general's legal advice non-binding on the government.
That fourth one is crucial. The attorney general in Israel isn't like the US attorney general. It's a fundamentally different role.
In the US, the attorney general is a political appointee who serves at the president's pleasure. They're part of the administration. In Israel, the attorney general is a professional civil servant with a fixed six-year term that cannot be renewed. Since nineteen ninety-seven, the position has been designed to be insulated from political pressure. And here's the key — the attorney general's legal opinions are binding on the government. The government cannot simply ignore them. If it wants to do something the attorney general says is illegal, it has to formally overrule the AG through a special process, and that's politically radioactive.
The attorney general is both the government's lawyer and its legal supervisor. That's an inherent tension.
It becomes explosive when the prime minister is under indictment. Netanyahu has been on trial since twenty twenty for corruption charges — fraud, breach of trust, and bribery. In twenty twenty, he signed a conflict of interest arrangement with then-attorney general Avichai Mandelblit. The arrangement said Netanyahu would not involve himself in judicial appointments or law enforcement matters while on trial, because as prime minister he could influence the very system prosecuting him.
Then he formed a government in late twenty twenty-two and wanted to pursue judicial reforms that would directly affect the courts trying him.
In early twenty twenty-three, Attorney General Gali Baharav-Miara — who was appointed by the previous Bennett-Lapid government — informed Netanyahu that his involvement in the judicial reform push violated the conflict of interest arrangement. She didn't just advise against it. She blocked it. And because her opinions are binding, Netanyahu was in a position where his own attorney general was telling him he legally couldn't pursue his government's signature policy.
That's an extraordinary situation. The prime minister wants to reform the judiciary, and the attorney general says he can't even participate in the discussion because he has a personal stake in the outcome of his own trial.
This is where the reform's fourth pillar — making the AG's advice non-binding — connects directly to Netanyahu's personal situation. Supporters of the reform said the attorney general had too much power over an elected government. Critics said making the AG's advice non-binding would remove the main check on executive power, especially when the executive is led by someone facing criminal charges.
The debate becomes impossible to separate from Netanyahu himself. Even if you think the structural argument for reform is sound, the fact that the prime minister pushing it has a direct personal stake in weakening the legal system creates an optics problem that's impossible to solve.
It cuts both ways. Reform opponents said this was all about Netanyahu trying to escape his trial. Reform supporters said the attorney general was using her power to paralyze a democratically elected government. Both things can be partially true. The structural problems are real regardless of who the prime minister is — but the specific prime minister makes those structural problems impossible to resolve cleanly.
Let's go back to the reasonableness standard for a moment. The Deri removal was the trigger, but there's a longer history here.
The Court has been using the reasonableness standard for decades, and it's been controversial for just as long. One of the most significant examples is the Haredi draft issue. The Court repeatedly struck down laws that exempted ultra-Orthodox yeshiva students from military service, ruling that blanket exemptions were unreasonable because they violated the principle of equality. The Knesset would pass a new law, the Court would strike it down, the Knesset would try again. This went on for years — a cycle of legislative-judicial conflict with no resolution.
Because neither side could definitively win. The Court couldn't force the Knesset to pass a law it didn't want, and the Knesset couldn't pass a law the Court would accept.
That's the structural problem in a nutshell. There's no tiebreaker. In a system with a formal constitution and a clear amendment process, you'd have a way to resolve these disputes. The Court says the law is unconstitutional. The legislature can either accept that or amend the constitution. But Israel has no amendment process for its Basic Laws beyond ordinary legislation. So every conflict becomes existential. The Court says the Knesset violated fundamental principles. The Knesset says the Court has no authority to tell it what to do. And there's no mechanism to decide who's right.
Which brings us to July twenty twenty-three. The Knesset passed the first piece of the reform — a law eliminating the reasonableness standard for government decisions.
The coalition pushed through a bill that said courts could no longer review the reasonableness of decisions made by the government, the prime minister, or individual ministers. It passed sixty-four to zero, with the opposition boycotting the vote. And then in January twenty twenty-four, the Supreme Court did something it had never done before — it struck down a Basic Law.
That's the landmark ruling. Eight to seven. Walk me through it.
This was an extraordinary moment in Israeli legal history. For the first time, the Supreme Court invalidated a Basic Law — which is to say, it invalidated an amendment to what functions as Israel's constitution. The vote was eight to seven. Chief Justice Esther Hayut wrote the majority opinion. The core argument was that the Knesset had misused its constituent power — the power to make constitutional-level law — to destroy the foundations of Israeli democracy. The majority said the reasonableness law wasn't a constitutional amendment at all. It was an ordinary law disguised as a Basic Law, designed to strip the courts of their essential function. Justice Yosef Elron wrote the lead dissent. His argument was that the Court simply had no authority to review Basic Laws at all. The Knesset in its constituent capacity is sovereign, and the Court cannot sit in judgment over the constitution itself.
You have eight justices saying the Knesset went too far, and seven saying the Court went too far. A one-vote margin on the most fundamental question a legal system can ask — who decides?
That's the constitutional crisis with no resolution mechanism. In the US, if the Supreme Court strikes down a law, Congress can try to amend the Constitution — hard to do, but there's a process. In Israel, there is no process for this. The Basic Law was struck down. What does the Knesset do? Pass it again? The Court would strike it down again. Amend the Basic Law to explicitly strip the Court of review power? The Court might strike that down too. There's no escape hatch.
We have a system where the Court created its own power of review, and now we're discovering that there's no agreed-upon limit to that power — or to the Knesset's power to push back. It's a game where nobody agrees on the rules.
That's why the reform debate isn't really about this or that specific law. It's about the fundamental question of who has the final say in a system with no written constitution. The nineteen ninety-two Basic Laws created a semi-constitutional order without resolving that question. Every conflict since has been an attempt to answer it by force rather than by design.
Let's talk about the attorney general's role in more detail, because that's the second part of the prompt — why are Israeli politicians constantly fighting with the AG specifically?
The Israeli attorney general is arguably the most powerful unelected official in any democratic system. Let me break down what the office actually does. First, the AG is the head of the prosecution system. Every criminal case in Israel ultimately falls under the AG's authority. Second, the AG is the government's legal advisor. Every ministry, every cabinet decision, every proposed law gets reviewed by the AG's office. Third, and most importantly, the AG's legal opinions are binding on the executive branch. If the AG says a government action is illegal, the government cannot do it unless it formally overrules the AG.
What does formally overruling the AG actually require?
The government has to hold a formal hearing, present its case, and essentially declare that it's rejecting the AG's legal advice. This almost never happens because it's politically devastating. If the action later turns out to be illegal, every minister who voted to overrule the AG is personally exposed. And if the action is challenged in court, the fact that the government overruled its own attorney general is basically a flashing red light for the judges.
The AG's opinion isn't technically a veto, but in practice it functions as one because the political cost of overriding it is so high.
And this creates a situation where an unelected civil servant can effectively block the elected government's agenda. Reform supporters say this is undemocratic. Reform opponents say it's the only thing preventing the government from doing whatever it wants, especially when the prime minister is under indictment.
The Netanyahu situation makes this uniquely fraught. You have an attorney general who is simultaneously advising the government and overseeing the prosecution of the government's leader. Those two roles are in direct tension.
Attorney General Baharav-Miara has been at the center of this. She was appointed in twenty twenty-two by the previous government. She's considered a professional, non-political choice — she was the Tel Aviv district attorney, had a reputation as a serious career prosecutor. But she inherited the Netanyahu conflict of interest arrangement, and she's enforced it rigorously. She's blocked Netanyahu from involvement in judicial appointments, from certain aspects of the reform legislation, and from law enforcement matters. Each time, the government has accused her of overreach. Each time, her defenders have said she's doing exactly what the law requires.
The reform's proposal to make the AG's advice non-binding — what would that actually change in practice?
It would transform the AG from something like a legal supervisor into something more like a legal advisor. The government could hear the AG's opinion and then say thanks, we disagree, and do what it wants. No formal overruling process, no political cost, no legal exposure. Supporters say this is how it works in most democracies — the government's lawyers advise, but the elected officials decide. Critics say that in most democracies, there are other checks — a written constitution, a powerful legislature, federalism. Israel doesn't have those. The binding AG opinion is one of the few real constraints on executive power.
If you remove that constraint while the prime minister is on trial for corruption, you're essentially letting the person with the most to gain from a weakened legal system decide how weak it should be.
That's the argument. The counter-argument is that the current situation is also untenable — that having an unelected official who can paralyze an elected government is itself a democratic problem, regardless of who the prime minister is. Both things are true. The system is broken in both directions.
There's a misconception I want to address directly. A lot of the coverage framed this as good versus evil — defenders of democracy versus would-be authoritarians. That's too simple, isn't it?
It's way too simple. The reform's supporters genuinely believed the Court had overreached and that Israel needed a more balanced system. Their argument wasn't let's destroy democracy. It was that parliamentary supremacy is a legitimate model of democracy — the UK works this way, New Zealand works this way. The elected legislature should have the final say, not unelected judges. That's a coherent democratic position. The reform's opponents believed that without a strong Court and a binding AG, Israel's democracy had no meaningful checks. No constitution, a weak legislature dominated by the executive, a fragmented opposition — the Court and the AG were the only things standing between the government and unlimited power. That's also a coherent democratic position.
It's not democracy versus authoritarianism. It's two competing visions of democracy — parliamentary supremacy versus judicial supremacy — colliding in a system that never resolved which one it wanted to be.
The nineteen ninety-two constitutional revolution made this collision inevitable. By creating judicial review without a formal constitution or an amendment process, Israel essentially built a system where the Court and the Knesset would eventually fight to the death. No mechanism for resolving the dispute was ever created because nobody thought through the implications of what they were doing in nineteen ninety-two.
The margins on those votes tell you nobody thought they were doing something historic. Thirty-two to twenty-one on human dignity and liberty. That's not how you build a constitution. That's how you pass a routine bill.
Chief Justice Barak saw an opportunity and took it. He's a fascinating figure — brilliant, visionary, and deeply controversial. He once said that everything is justiciable. There's no area of government action that's beyond judicial review. That's an extraordinarily expansive view of judicial power, and it's the view that shaped the Israeli Supreme Court for a generation.
Compare that to Canada's notwithstanding clause. Canada also has a charter of rights and a Supreme Court that can strike down laws. But section thirty-three of the Charter allows Parliament or provincial legislatures to override certain Charter rights for five years at a time. It's an explicit constitutional pressure valve.
It's rarely used, but its existence changes the dynamic. The legislature knows it has an escape hatch if the Court goes too far. The Court knows the legislature has that escape hatch, so it's more restrained. Israel has no equivalent. The nineteen ninety-two Basic Laws have notwithstanding clauses, but they only apply to specific rights in specific laws — they're not a general override mechanism. So there's no pressure valve. Every conflict goes to the breaking point.
The October seventh attack and the subsequent war have essentially paused this debate. But as you mentioned, it's coming back. What should people watch for?
There are two key indicators. First, whether the government tries to pass another override clause bill — something that would let the Knesset reinstate laws the Court has struck down. Second, and maybe more importantly, whether they try to change the composition of the judicial selection committee. Right now, the committee includes three Supreme Court justices, two government ministers, two Knesset members, and two bar association representatives. That means professional judges and lawyers can block appointments if they vote together. The reform would give politicians a majority. If the government changes who picks the judges, it changes everything downstream.
The attorney general situation?
Watch whether Baharav-Miara is replaced before her term ends. Her six-year term runs through twenty twenty-eight. If the government moves to remove her early or changes the law to make the position a political appointment, that's a major signal. It means the government is done negotiating with the legal establishment and is moving to dismantle it.
The core insight here — and this is what I think listeners should take away — is that Israel's judicial reform crisis isn't really about any single law or any single politician. It's a symptom of an incomplete constitutional design. The nineteen ninety-two Basic Laws created a semi-constitutional system without answering the most basic question — who has ultimate authority? And every conflict since has been an attempt to answer that question by force.
The practical implication for other democracies is significant. Israel is a warning case for what happens when judicial review is created by judicial interpretation rather than by constitutional text. When there's no clear amendment process, when the boundaries aren't defined in writing, every conflict becomes existential. You can't compromise on who has the final say because the question itself is binary. Someone wins, someone loses, and there's no mechanism for either side to accept defeat.
The US had this fight in eighteen oh three with Marbury versus Madison, but it happened early, and the Constitution was already there as a reference point. Israel is having this fight now, seventy-five years in, with no document to anchor the debate.
With a prime minister under indictment, which makes every institutional question also a personal question. That's the multiplier effect. The structural tensions would be difficult to resolve under any circumstances. With Netanyahu's trial as the backdrop, they become almost impossible.
Where does this go? Will Israel eventually adopt a formal constitution, or is it going to continue operating in this gray zone where every major policy dispute becomes a constitutional crisis?
I don't see a formal constitution happening anytime soon. The divisions in Israeli society — religious versus secular, Jewish versus Arab, left versus right — are too deep to agree on foundational text. The Basic Laws were supposed to be an interim solution while a constitution was drafted. That was in nineteen fifty. The interim has lasted seventy-six years. What I think is more likely is that the conflict continues episodically. The war pushed it to the background. When the war ends, it comes back. And it may be even more polarized, because both sides have had time to harden their positions.
The protest movement showed that the Israeli public is engaged on this at a level that's unusual. Six hundred thousand people don't show up for arcane legal doctrine. They show up because they understand, intuitively, that the rules of the game are being rewritten.
The protests were remarkable. They cut across sectors of Israeli society that don't normally protest together — tech workers, academics, military reservists, doctors, lawyers. The tech sector threatened to pull investments out of the country. Reservists threatened to refuse service. These weren't fringe actors. These were pillars of the Israeli economy and security establishment saying this reform threatens something fundamental about how the country works.
On the other side, you had people who've felt for decades that the Court doesn't represent them — religious Zionists, the ultra-Orthodox, Mizrahi Jews who see the Court as an Ashkenazi elite institution. For them, the reform was about democratizing a system that had been captured by an unaccountable establishment.
Both grievances are real. The Court has been an extraordinarily powerful institution in Israeli life, and it has made decisions that profoundly affect communities that feel they have no voice in it. At the same time, the Court has been the primary check on government power in a system with few other checks. You can acknowledge both things. The tragedy is that the system never created a way to balance these competing legitimate concerns.
For listeners trying to follow this going forward — watch the Knesset's legislative agenda this summer. The override clause and the judicial selection committee are the two flashpoints. Watch the attorney general's position. And understand that when you see headlines about another Israeli political crisis involving the courts, you're not seeing a random fight. You're seeing the same unresolved question surface again and again — who decides?
That question is worth watching because Israel is, in a sense, running an experiment that a lot of democracies might eventually face. What happens when the informal norms and unwritten rules that make a system work start to break down? What happens when the political branches decide they're done deferring to the courts? Israel got there first because its system was designed without a resolution mechanism. But the underlying tension — between popular sovereignty and constitutional constraint — exists everywhere.
That's a good place to leave it. The experiment is still running. Nobody knows how it ends.
Now: Hilbert's daily fun fact.
Hilbert: In the high medieval period, Turkish oil wrestling or yagli güreş was widely believed to have been invented by a traveling silk merchant from what is now Belize — a claim that was later corrected when historians realized the merchant had never visited Anatolia and had simply been describing a dream he had about very slippery men.
...right.
Thanks to our producer Hilbert Flumingtop for that contribution to human knowledge. This has been My Weird Prompts. If you enjoyed this episode, leave us a review wherever you get your podcasts — it helps other people find the show. I'm Corn.
I'm Herman Poppleberry. We'll see you next time.
