The Lawfare Podcast: Yuval Shany and Amichai Cohen on the Israeli Supreme Court's Bombshell

Amichai Cohen: We all know that the judicial overhaul, although it was promoted by a small sector, reflected a wider disagreement regarding many issues.

Benjamin Wittes: I'm Benjamin Wittes and this is the Lawfare Podcast, January 11th, 2024. The Israeli Supreme Court, in the middle of the war in Gaza, handed down a decision that amounts to a kind of death blow to Prime Minister Bibi Netanyahu's judicial reform project.

Oh, you remember the judicial overhaul before October 7th? It was all that anybody was talking about in Israeli politics, and we covered it a lot here. You know, a five part legislative plan to assert parliamentary control over the judiciary and reduce Israel's checks and balances into a more majoritarian system.

Only one part of it got passed and the Supreme Court has now struck it down in a decision that sharply divided the Court on some questions, and reflected significant unity on others. To discuss the 700-page ruling, we brought back our Israeli judicial overhaul team, Yuval Shany of Hebrew University and Amichai Cohen of Ono Academic College.

They have written more thoughtful stuff in English on Lawfare on this stuff than just about everyone else combined. And so we try to check in with them when there are major events. We talked about what the Court did. We talked about what the Court didn't do. We talked about doing it in the middle of a war and whether that was truly necessary. And we talked about where the judicial politics of Israel goes from here.

It's the Lawfare Podcast, January 11th, Yuval Shany and Amichai Cohen on the Israeli Supreme Court's bombshell.

So I want to start with the length of this Supreme Court opinion, which I think probably, if it has precedent in Israeli constitutional history, that would be news to me.

I don't think it has precedent in American constitutional history, to have a 700-page Supreme Court opinion. Why is this opinion so long?

Yuval Shany: Well, I mean, the first reason, of course, is that this is the first time you have 15 justices sitting on the case. So I wouldn't say that the individual opinions are exceptionally long.

What is exceptionally long is the fact that you have so many justices on the bench and all of them actually insisting on writing individual opinions and not just appending their opinions to other ones, to, to existing ones. And I think that reflects on the sense that the judges felt when they were writing this, that this is an historic decision and all wanted to have a piece of that history, you might say.

Benjamin Wittes: And how did this come to be the first en banc sitting of the Israeli Supreme Court? I mean, you know, when we have big important cases, that doesn't automatically change the rules of procedure here. Of course, the U.S. Supreme Court always sits en banc. But how did the, the Israeli Supreme Court come to be sitting en banc here?

Amichai Cohen: So the president of the Supreme Court in Israel has the authority to enlarge the panel. So a basic panel is three justices. And then the president of the Supreme Court has the authority to enlarge it. And traditionally in constitutional cases, important cases, it has been enlarged to somewhere between seven and 11 justices.

I think this time it was important for the justices also for appearance sake. So there was no manipulation of the panel. So the--it was known in advance that if the tradition will be followed, that the most senior justices will sit in the case, then there'll be a clear majority for the liberal side. So--and the Court wanted to put in more justices that were appointed to the Court in recent years so that all parts of the Court will be represented.

Benjamin Wittes: And just to be clear, Amichai, I, I take it what you're saying is that the, the longer a justice has served on the Israeli Supreme Court, the more likely they are to be a--I'm just going to try to use neutral terminology for this--a sort of maximalist in the judicial power department and the more recent justices are much more apt to be cautious about judicial power and deferential to Knesset power.

Is that, is that a fair way to summarize it?

Amichai Cohen: Yes, but not because of the length of the, of the service. Because of the appointment system in recent years because the right wing government had more influence over the appointment of justices, less activist justices were appointed to the Court.

Benjamin Wittes: All right, and so, Yuval, I take it, and I have not read this opinion, both because my Hebrew is not remotely up to the task, and secondly because it's 700 pages and it came out last week, and, you know, we've got some other things going on in the United States here. But, I take it that there are essentially two fault lines among the justices here, one related to the power of judicial review over amendments to basic law in the first place, and the second over, over the specific question of whether this law has a problem that requires invalidation.

And so walk us through, at a high level of altitude, what these two disputes are. And of course they produce different splits among, among the justices. So, at a high level of what-- we'll bore in on them over the course of the conversation--what are these 15 opinions over 700 pages arguing about?

Yuval Shany: Okay, so the first fault line is really a very deep question of jurisprudence, of legal theory, and that is are there any limits on the power of the constitution drafter or on the power of the political body that introduces a constitutional amendment in a system where the very existence of a constitution is questioned, has been questioned seriously, and still is questioned? Where there is no clear procedure for how you pass a constitutional law or a constitutional amendment? And there is actually in practice, there is in place exactly the same process for passing legislation and for passing constitutional amendments, which in, in our system are called basic laws or amendment to basic laws.

So the question is, in such a system, can parliament--which the Court has held 30 years ago, wears two hats; it is a legislature, but it is also entrusted with, gradually building up the Israeli constitution. Is it subject to any limits when it is engaging in the latter practice? And the question has come to the forefront because if in the past the approach by the Israeli Knesset was that they deal very delicately and very cautiously with amendment to basic laws.

They basically try to formulate a broad consensus they study the topic very long, and then they introduce quite generally accepted norms. In the last decade, we have seen a shift in that regard and we have seen maybe a reflection of what is sometimes regard--this is hardball constitutionalism.

We have seen Knesset willing to resort very, very frequently to constitutional amendments and in a way politicize the constitutional amendments process so that it is essentially decided on the basis of coalition versus opposition. So it has become a very partisan process.

Benjamin Wittes: And essentially indistinguishable from a normal legislative process.

Yuval Shany: Indistinguishable. So in a way, what the Knesset has identified, once constitutional review of legislation has become commonplace in Israel, once it has become entrenched that the Court can strike down legislation, if it violates basic rights or if it violates basic norms of constitutional law, the way in which the parliament reacted to that was basically moving the goalposts to the constitution-making.

So whenever they were unhappy with a certain line of jurisprudence, they were simply changing the rules of the game. Effectively changing the Constitution on questions like what is the judicial power of review or, in another case that was issued last week on what are the conditions for incapacitating the prime minister.

And the question that the Court held, had to deal with, is whether there are any legal limits and the shifted, I mean, the default line was two of the justices said, "No, we have nothing to hang on to, and as a result, the conclusion is no limits. The Knesset can pass any law that it wishes, if it calls it a basic law. There are absolutely no limits."

Benjamin Wittes: And so as long as you're dealing, in other words, with the Knesset in its constitution-writing function, it's a pure parliamentary supremacy system.

Yuval Shany: It's a pure parliamentary supremacy system. Whereas the other justices, the remaining 12, and one who left the matter for future, for further future review, the remaining justices, the 12 plus the one, took the view that, "No, there must be some limits.' And those limits can be either drawn from Israel's Declaration of Independence, or from other basic laws that are already in place, or the most common approach that most of the judges came around, by what is sometimes called, in comparative law, the basic structure, or the fundamental constellation of the judicial system. There are certain fundamental ideas that in a way serve as the ground norm, the "grundnorm" in legal theory terms that underlie the whole legal system, namely that Israel is a Jewish state, that Israel is a democratic state. And that there is certain baggage, which is associated with these ideas--separation of powers judicial review having periodic elections, the rule of law--all of these key pillars are associated with these basic structure or basic constitutional constellation. And on that basis, the Court said we can exercise review even of amendments of the basic laws.

Benjamin Wittes: Okay, so Amichai, take up the next question. So you have a 13 to two or 12 to three depending on quite how you count on the foundational constitutional question. The second question is one that is I guess, sounds really in administrative law--although from an American perspective, it's administrative law with a pretty deep constitutional, I don't know if it's an overlay or an underlay--but in, in, in, in the Israeli context, this is a sort of pretty pure administrative law question, right?

Amichai Cohen: So it started as an administrative law question, the question of reasonableness, right? Can the Court strike down decisions of elected officials, of the government and of ministers, because they are extremely unreasonable? This question has taken a much larger scope in Israeli law in the recent year for, I think, two reasons.

First of all, the way it was framed. The amendment was framed in a way in which took away the authority of the Court to review certain actions. So--

Benjamin Wittes: --and to be clear here, the amendment that you're describing is the one piece of the giant judicial reform package that actually passed and you guys wrote a lengthy takeout on it, a description of it, for Lawfare back in the early days of the judicial reform disputes and the resulting protests. And for those who either didn't, didn't remember-- it was not the central component of the judicial reform package, but it was the one that passed. And essentially for those who are not conversant in Israeli administrative law, in Israeli law, the courts have traditionally had a kind of reasonableness review with very limited standing requirements for somebody to challenge an executive action. And so, you know, the government does X, whether it's the appointment of a minister or the plan to demolish a house, and somebody who may have very little connection to this, walks into court and says, "This is unreasonable." and the court will entertain that petition in a fashion that is just completely unthinkable in American law, but is routine in Israeli law. And this is the authority that-- not the authority to entertain a petition, but the authority to invalidate a government action on the basis that it is unreasonable that the Knesset took away.

So sorry, I interrupted you, but I thought that was a necessary background.

Amichai Cohen: So you're correct, of course. So the first issue was the way I think it was framed, was framed that the way --taking away the powers of the Court. And this, of course, raises all the issues that Yuval alluded to earlier regarding the separation of powers.

So this raises the flag here, the red flag here, right? So the government through the Knesset is trying to gain power which the Court has no review over. And this was thought of as extremely dangerous in the Israeli political system. Now, we spoke about it in previous podcasts, but I'll reiterate for a second.

The Israeli political system is unique in the sense that there are no political checks and balances. The government controls, practically. The Knesset--and there's no internal division of power. We have a unicameral legislative branch. We don't have a federal system. We don't have strong regions, etc. So all political power in Israel is centered in the hands of a few political figures, the heads of the parties in the coalition.

And the Court viewed this attempt to centralize even more power by saying, "Okay, and now the decisions cannot be reviewed by the court as something that undermines the structure of democracy." So that's the first reason.

And the second reason, I think, was--and you spoke about it--the importance of the reasonableness ground for review as it was used by the courts to limit some of the powers of the government, for example, in interim governments.

So the way the Court framed the reasonableness review is that, it took, for example, interim governments, so these are governments that act after elections have already been called, right? So elections in Israel are not, you know, in strict terms. It's when they are--there's a limit of four years, but we almost never get to the limit. Usually they're called before that. And the Court has said that there are limits on the authority of interim governments, these governments that serve after elections have been called, in order to protect the integrity of the election system. And the court saw here a problem, for example, if interim governments would have authority that is unlimited by the Court, they could actually affect not only the decisions, but also the elections themselves because of the elections.

So this is just one example. And there are other examples in specific examples. And perhaps the third thing--although the justices push back regarding this, but this is also something you mentioned--and it's that it was part of a package, and the justices have lived in Israel since January 2023 and they know where this is going.

And I think they know the theory that there is a gradual democratic dissent, so things are going step by step, and indeed I think the fact that it's a first step also meant it has to be blocked. Once again, explicitly I think the justices pushed back against this. They wrote that it should be struck down on its own basis, not because it's a part. But it's hard to evade the thought that they knew the entire picture.

Yuval Shany: I think the concern that the justices had with this amendment, which, like you said, is like administrative law issue, which one normally maybe doesn't think about as the central pillar of a democracy, although in Israel it is very important. I think they were concerned by three specific aspects of this amendment.

First, it only removed judicial review from elected officials. So in a way, it did create a very problematic system by which, to the extent that the decision would have been taken by a bureaucrat, the government would-- the Court could review the decision. But if the same decision would have been picked up and being ratified by a politician, then suddenly, there was no longer the power of judicial review. So I think there was a strong sense that the government was empowering itself. It was taking care after its own and not so much concerned in the abstract about judicial review.

Second, you mentioned before that Israel has a very broad idea of reasonableness and even a very broad idea about standing. But this amendment would also cover cases that would be reviewed by a U. S. court, namely when an individual has been deprived of a license, by a decision that was ratified by a minister, and this decision is capricious, arbitrary. No, the Court would not be able, under these conditions, even under those very strict conditions, it would not be able to exercise judicial review. So it was a very sweeping amendment that really worked across right, left, up, down, the whole administrative system.

And thirdly and finally, there was an anomaly with this amendment. The amendment didn't really deal with the question of whether the government should act reasonably. According to the amendment, the amendment did nothing to change the obligation of the government ministers to apply the reasonableness doctrine.

The only thing it removed was the power of the courts to review this. So, in a way, it created a law without a court, or a law without a law reviewer. And that the Court saw as a very deep problem from a rule of law perspective,: that you have a legal standard that is out there to protect the citizenry, but there is no access to court to enforce that legal standard.

Benjamin Wittes: Right, so this aspect of the decision was much more fiercely contested than the more foundational one.

I think there was, it was essentially an eight to seven vote in a very American style, right, where you have, when you say a five-four Supreme Court decision, everybody knows who the five and everybody who knows who the four are, although I guess now it's a sort of, it's more six-three kind of thing. But, what do you think-- I'd be interested in hearing from both of you on this--what is the division on this point say to you about the degree of polarization of Israeli legal culture on the issues of judicial reform?

Or is this just an issue that you're going to see a, a group of--there is an ideological component of this related to how aggressive the Court should be in the administrative reasonableness department.

Yuval Shany: Yeah, so, I would say that it's not a U. S. case of sharp polarization. I would say that four out of the justices who voted against the striking down of the law, they are what you might refer to as moderates in the sense that they may be moderate conservatives or maybe centrist liberals. But, essentially, three out of the four--we are getting to hair-splitting more and more--but three out of the four thought that yes, there is a fundamental problem with the law that has been passed by the Knesset as an amendment to a basic law. It does appear to strike at the heart of a very important democratic institution, which is judicial review of our administrative act. However, the remedy that should be offered is not the striking down of the legislation, but rather, reinterpretation of the legislation in a way that significantly minimized the harm that has been afflicted.

So essentially removing only one aspect of the reasonableness doctrine, the most intrusive application of that doctrine, but keeping in place all the more traditional protections that the doctrine has offered. And there was one justice who had a lot of sympathy for the case and was very critical of the, Knesset's move, but said it simply doesn't reach the threshold.

I mean, for me, the threshold of violating a very core democratic principle has not been met, but that justice on other occasions did find himself in agreement with the more liberal justices. So I wouldn't say that it's a real eight or seven split, hardcore between liberals and conservatives.

There are eight liberals, four moderates, and then there are these three conservatives, the two that voted against all the way, and the one justice that says, "Maybe in extremely exceptional cases I would go in that direction, but this is not even in the ballpark."

Amichai Cohen: If I may add, first, I want to say that the judicial overhaul started with questioning the authority of the court to strike down laws in the first place. So the most extreme proponents of the judicial overhaul said the entire system of striking down laws, if they contradict basic laws, is problematic. Now, here, in this case, we have a clear majority, 14, perhaps even 15 justices clearly saying, "This question is over," right? "This discussion is over. The Court clearly has the authority to strike down laws that contradict basic laws." And I assume that if the Knesset would try to change this, this would be certainly one of the things that would be struck down by the Court.

The second point I want to make is that when you look at the liberal-conservative division here, you also have to take into account, as Yuval said, that three, or perhaps even four, of the justices took a very activist approach towards interpretation in their decision.

So they said, "We don't have to strike down this specific basic laws, but the only reason is that we are willing to interpret what the Knesset did in a very quote unquote, 'liberal' way, actually putting"-- this is completely not an originalist way of interpretation, right? So putting into the words of the Knesset things which clearly the Knesset never intended.

Benjamin Wittes: In other words, save the statute by, or the base, the amendment by interpreting it very aggressively.

Amichai Cohen: Very, very aggressively. So where do you place these on the liberal-conservative axis is of course not clear. And I think the third point is that-- and this goes towards your question--is that we also have to understand the context.

Two of the justices who were in the majority actually already retired. They wrote the decision under a statute, which allows them to write decisions 90 days after the mandatory retirement age of 70. So, and this is within. So, I think somewhere in the middle of January would be the last date that they could write decisions.

And we are still in a crisis in the sense that the Minister of Justice has already said he is not going to move along the process of appointment of replacement to these justices. So we're actually now in a Supreme Court, which lacks two of its members right now. And there are no even attempts to appoint the replacements. So we're still in the crisis. The crisis is not over, at least from this point of view.

Benjamin Wittes: Yeah, so let's talk about the politics of this a little bit, because this is now, I think, the longest podcast conversation that has happened on any matter related to the State of Israel, since October 7th, that has not mentioned the war or the events of October 7th.

But, it could not have escaped the attention of the justices that they were issuing this opinion in a period of incredible compound crisis, right? The judicial overhaul crisis layered underneath the war with Hamas. And it seems to me that they could not have been unaware that this opinion issued under these circumstances is uniquely invulnerable to political response.

That is, Bibi Netanyahu, whatever his long term future may or may not be, cannot respond to this by going to the Knesset and saying, "We need remedial legislation immediately," Among other reasons, because all politics in Israel is on hold, and it's not clear that how long his government will survive once that hold lifts.

And so, talk to me about the politics of issuing it at this time, and how-- obviously the case was docketed and argued before October 7th. It's not a response to October 7th. You guys wrote a piece in Lawfare at the beginning of September that said, "Hey, September is the do or die month in court for the judicial overhaul crisis,." But, I do think there's--it is not an accident that this very decisive opinion comes at a time when the Prime Minister, and for that matter, the Justice Minister, who's been the driving force behind the judicial overhaul, are just paralyzed in their ability to respond.

And so, Yuval, get us started. Is this the Court taking advantage of this situation, or to slam the door on the judicial overhaul, or how cynical should I be about this, in other words?

Yuval Shany: No, I think what Amichai said is-- sometimes the simple explanation is the right explanation. The justices, two justices had to retire. They include the president of the Court, who already wrote, the longest decision, in the case. So basically, it would have been extremely problematic if after hearing the case, after writing the judgment, suddenly, the judgment is being shelved. So, January 12th is the date, is the 90-day date after the retirement of the two justices. So the court simply had to publish it away.

There were in terms of politicking, maybe there are two aspects which are interesting. First, I think we follow your example in many ways. There was a leak of the decision. So this mirrors the Dobbs leak, where the decision was leaked about 10 days before it was published. This has never happened in the history of the Israeli Supreme Court.

Benjamin Wittes: It had never happened here either.

Amichai Cohen: But it was leaked in a in a manipulative way. It wasn't leaked completely. There were pieces of it that were leaked and clearly directing towards the eight to seven split, ignoring the 13 to two split on the principled issue.

Yuval Shany: Right. So we had the leak and there was some speculation as to whether who of course leaks and what was it designed to attain. In the end, like Amichai said, the leak already mentioned it's an eight to seven decision and this hasn't changed. So that was one aspect.

Second, there were some last minute attempts in the Knesset to try to, again, amend the basic law. Amend the laws that actually allow the judges to basically write decisions within 90 days and to extend the period in time by which the justices, retiring justices, would be able to sign the decision. But that came to naught. Of course, the one thing which the Knesset could have done and refused to do was to suspend the law that led to the petitions, but this they didn't want to do.

So, I'm not sure that in this case that the fact that we are in a war and the fact that the public attention and the political attention is in a very different place, I'm not sure that that played in practical terms a huge role in the decision. I think for the Court in some way it is fortunate that it is like that in the sense that it did capture the headlines for maybe one day and then, and then it disappeared. And it hasn't really picked up so far a lot of momentum.

We should know that there is another decision that was issued, I've mentioned this before, the incapacitation decision. That decision--maybe I'll just say a few words about what that decision is for our listeners. That decision was also an attempt to strike down a basic law, an amendment to a basic law, which was also passed by this government with a view to minimize external review of its activities. It was a law that made it extremely difficult to remove a serving prime minister on the basis of his incapacitation. We've had before a general term in our basic law on government that allow, that basically provided that the prime minister, if he becomes, he or she, incapacitated, then there is a process by which, his or her authorities would be transferred to another minister. But there was never actually a clear indication of who declares incapacitation and under what procedure. We only had one case in our history where Ariel Sharon suffered a stroke. And on that basis, the attorney general convened the government and basically the government decided on his advice that there would be an incapacitation. And here there was a law that was passed that made it virtually impossible for the attorney general to do that. And the fear, basically deciding that the two thirds of the government would have to decide, three fourths or two thirds of the government, and then it would have to be ratified by the Knesset.

So it became a very difficult, by a super majority, a very difficult political exercise and, the context was that Netanyahu was afraid that because of his legal troubles and his conflict of interests, the attorney general would basically apply the incapacitation provision to him. And the amendment to the basic law was designed to shield Netanyahu from being removed from office by the attorney general.

Here the Court decided not to strike down the law, but rather opt for the interpretive remedy. And that is to read the law as if it would apply not from this Knesset, but from the next Knesset. And in terms of political fallout, this law has a more immediate implication because Netanyahu is still undergoing a criminal trial and there are still concerns about his many conflicts of interests.

So this avenue--and there is actually a case, a petition against the Attorney General for refusing to basically incapacitate Netanyahu. So all the different courts are actually being pulled together because now the Court can review the reasonableness more easily of a decision not to incapacitate the prime minister and the incapacitation law is inapplicable. So this may have more political urgency for the government, but even that we haven't seen any momentum to try to deal with this decision.

Benjamin Wittes: Yeah. So, so Amichai, let me turn to you on this. Accepting that I should be uncynical about the Court's behavior and motives here, and that the expiration of the terms of the President of the Court, Esther Hayut, and, and the other justice, is a full and complete explanation for the timing here.

It still seems to me that the Court has done something that the political system is actually, in the current context, completely incapable of responding to. And so my question is, assuming that Yuval is correct and that the Court's motives and behavior here are pure as the driven snow, it still seems to me like they just killed the judicial reform -- the entire year of turmoil over the judicial overhaul.

They just sort of declared it over. Am I overstating that?

Amichai Cohen: No. First of all, we have to remember that even before October 7th, the judicial overhaul was not a great success in terms of the achievements, right? The only thing, as you mentioned at the beginning of the talk, the only thing that passed was the reasonableness amendment. And it seemed that the government was unable to overcome the political and public resistance towards changing. And we remember the demonstrations in the streets. So it wasn't as if it was gliding to success, the judicial overhaul before.

Second, I completely agree with the observation. I would frame it this way. The only thing that Yariv Levine, after a year actually succeeded in doing is strengthening the Court because now we have a decision of the Court declaring its authority to strike down basic laws, something which was debatable, you know, and actually no one really thought it would come to pass before Yariv Levine started. And Yariv Levine can show absolutely nothing to his voters. The only thing he can show is that he succeeded in doing the opposite, strengthening the Court even more. I agree that right now in the current political atmosphere, it doesn't seem as if any part of the judicial overhaul will pass.

However, the tensions underlying the issues are still there. They have not gone away. It's not as if suddenly we see in public opinion polls that 80 percent of Israelis agree with the Court, like it was 20 or 25 years ago. It's the tension regarding the authority of the Court and the nature of Israeli democracy is still there.

And I think there is a lesson there and some of the justices hint to it. So Justice Hayut, President Hayut, in her opinion, she said, "Listen, if there was a clearer procedure, a stricter procedure for passing basic laws, I would have rethought my assumptions here." So what she actually meant to say, I think, is that if we'll be able to complete the Israeli constitution and put in place a clearer procedure in Israeli terms, we call it basic law legislation.

Okay. So we lack the basic law, which defines whats the--is there a special procedure to pass a basic law? And as Yuval said, this is one of the problems of the Israeli constitutional system, that basic laws, the constitutional norms, are passed exactly as regular laws are. But if we'll be able to adopt in not perhaps not in this Knesset, but in the next Knesset, a system by which we'll have stricter requirement for passing basic laws or amending existing basic laws--say 80 members of Knesset, so two thirds of the Knesset or something like that--then perhaps this would help both the Court and the Knesset and the Israeli public come to a larger agreement regarding the structure of the Israeli constitution.

Benjamin Wittes: In other words, what she's really saying there is, "If you want us, as the Court, to treat the basic law as a constitution, you have to start acting like it's the Constitution. You have to start acting like it's not mutable at your whim, but it actually undergirds a system rather than is your latest play thing. As long as you're going to treat it as your latest play thing, we're going to treat it as reviewable."

Amichai Cohen: Exactly.

Yuval Shany: They're actually using this very language, that it cannot be like playing dough. I mean, the Constitution is not playing dough. You cannot just change every other week the terms of the Constitution.

And they cite, of course, the, the number of amendments to the U. S. Constitution as a point of reference, that this is something that is done very infrequently, in a very complicated process. Actually, one of the justices in the majority, Justice Grosskopf wrote quite explicitly that for him, one of the tests that he would look is the size of majority that has supported the amendment in question.

And if the amendment is supported on a bipartisan basis by a large majority that means that it reflects a broad understanding about the Constitution, that it falls within the constitutional structure of the state, the basic terms of reference for the Knesset. But the fact that these have been amendments have been passed on a, basically on a coalition, that was actually an indication that you are not in the business of making a constitution. You're in the business of making day-to-day politics.

Benjamin Wittes: So I want to ask you about the day-to-day politics, because you now have just a--I just think it's a weird soup of factors that this government could not possibly have imagined at this time last year when it introduced the judicial overhaul package that it was going to face, which is that on the one hand, it is still a government that ranges from the quite right to the extreme right. It's leading a country that has turned out a quite non-partisan and diverse politically hundreds of thousands of people to, on a weekly basis, to protest these actions. And has at the same time been, on the security front, wildly discredited to one degree or another, depending on whom you talk to, by its failure to prevent October 7th and its failure since October 7th to frankly articulate a vision of what it's trying to do and get a bunch of the hostages, get the hostages back.

And so, I'm interested in your thoughts of how these various components interact in the-- like, as you look forward to the next year of Israeli judicial policy and politics of the Israeli judiciary. It's obviously not going to play the same role that it did in the last year, but where are we going with this?

Yuval Shany: Well, I think there's a strong sense that this year has been a terrible year, not only because of October 7, but also that the events related to the judicial overall have in a way paved the way to October 7, like you said. There is, I think, a strong sense that this government was working on perhaps items that were luxury items on a government's agenda for a country like Israel.

I mean, this is not the top issues that a government should be dealing with. By the way, even the government supporters in polls were, I mean, they never indicated any serious interest in judicial reform. This was a very--this was very low on the agenda.

Benjamin Wittes: This was a bespoke obsession of a relatively small number of people.

Yuval Shany: Exactly. It was an obsession. It is an obsession by a small number of movers and shakers who have long dreamt for 30 years about reversing the 1992, 1995, judicial revolution, constitutional revolution, and finally found themselves in a position where they thought that they could do that. So I think one lesson is that a country like Israel cannot afford to invest so much energy in something which is ultimately not key to its survival and to its flourishing .

And t he other--I think there was at least in the short run, we are seeing a rejection of the politics of polarization. And what we are already seeing in the opinion polls is the meteoric rise of Benny Gantz, who was a candidate, a centrist candidate, whose basically claim to fame is that he is non-controversial and that he is seeking compromise and he is against polarization. And I think there is this association of pushing a judicial reform on a partisan basis with this politics of polarization.

Of course, this also ties into the future of Netanyahu because Netanyahu is the politician in Israel, ultimately, who is most associated with the politics of polarization. So to the extent that this very deep crisis is also going to remove Netanyahu from office is--most commentators predict will happen in the next few months.

That would also mean that the next government would probably not seek to go back into that kind of politics. But, Amichai is right that in the long run, we may see this coming back to haunt us. And if we can learn something from U. S. politics, we can see that what even policies and styles of leadership that have been rejected by the electorate can come back and offer themselves to the electorate and even lead in some polls three years later.

Benjamin Wittes: Amichai, your thoughts?

Amichai Cohen: Regarding the current government, we have to understand that it's actually a unity government. Not so much in the representation in the Knesset. The Gantz faction only has 12 seats in the Knesset. But, because Gantz enjoys so much public support, it means that actually the government enjoys relatively wide public, at least, acceptance of its legitimacy for the duration of the war.

Now, of course, the duration of the war now becomes a subject of disagreement because it's clear that it's in the interest of several politicians to drag out the war because it means that they can stay in power and the discussion regarding whatever happens afterwards is delayed. So right now, there is acceptance, but I think perhaps we can see signs of where it's going later.

And I-- Yuval was optimistic as his way. I'm perhaps a bit less optimistic regarding where the Israeli politics are going. Not in the short term. In the short term, I agree with Yuval. It's clear to me, at least, that the next elections will be regarding anti-polarization and, going back to the center. But the divisions are still there and we have not solved the issues underlying the divisions in Israeli politics.

And of course, we all know that the judicial overhaul, although it was promoted by a small sector, reflected a wider disagreement regarding many issues--regarding the Jewish identity of Israel, the place of tradition in Israel, nationality issues in Israel. So, many issues were in disagreement, and these controversies will remain, I think, perhaps not in the very near term, but in the longer term.

Benjamin Wittes: So I want to close by, you know, it's been almost a year since you guys wrote a six part takeout on the judicial reform package, that I think remains unlike anything else written in English. So I want to just take a moment to thank you both for the body of work that you've created in English about this set of controversies.

And it's legally dense, it's politically dense, and it's historically dense. And it turned out to be just extraordinarily important and, to thank you both for the body of work that you created in English to bring some of the internal Israeli discussion of these issues, both at a legal level and at a policy and political level to non-Hebrew-speaking audiences. I think it's a genuinely unusual or a genuinely unique body of work and uniquely helpful as people watched the demonstrations, as people watched the litigation that culminated in this decision. And I think a lot of people immediately on October 7th lost sight of this set of issues, and probably rightly so, but, you know, at Lawfare, we're not allowed to do that. And so I just wanted to say how much I appreciated that body of work, including the body of--the part of it that was the occasional podcast like this. And so I just want to refer listeners back if you have any questions about the judicial reform package and the substance of it, the arguments for it, the arguments against it, and the politics around it, the answers are probably in articles written by Amichai and Yuval on Lawfare. And, so thank you guys for that year of labor.

Yuval Shany: Thank you, Ben, for hosting us in this podcast, the previous podcast, but also more broadly in Lawfare. For us it was a very exciting project to write these blogs, but I think it was also important to for our cause in Israel, for those who are concerned about the state of Israeli democracy, to communicate these concerns to a professional audience outside the country in ways which are accessible. And Lawfare was a very valuable bridge in this context between what's happening in Israel and the rest of the world.

Benjamin Wittes: Well, we look forward to both of your contributions individually and together on these issues as they continue to develop. And, although, I think those developments will be a ways off, I suspect. But, also on the myriad other issues that are affecting Israeli democracy and also Israel's ability to wage conflict with Hamas and, I suspect, ultimately, with Hezbollah, in fashions that are greatly legally contested. And, we look forward to your continued involvement in Lawfare on those subjects.

Amichai Cohen: One thing we can say for sure is that there'll be interesting issues. The overlap of law and security in Israel in the next years.

Benjamin Wittes: Indeed. Thank you both.

Yuval Shany: Thank you, Ben.

Benjamin Wittes: The Lawfare Podcast is produced in cooperation with the Brookings Institution. Once again, folks, I engineered this recording myself, so blame any audio glitches only on me. Leave the Goat Rodeo folks out of it. They're not responsible for anything you don't like about the way this episode sounds.

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