Israel held its fifth election in less than four years last November. Benjamin Netanyahu succeeded where several previous governments had failed: he assembled a parliamentary majority. His coalition controls 64 of the Knesset’s 120 seats, giving Israel a government with enough votes to legislate without depending on opposition parties.
Normally, that would appear to resolve the country’s prolonged political instability. Elections are supposed to produce governments, and governments are supposed to implement programmes.
Instead, another argument has begun almost immediately. It concerns something more fundamental than any individual policy: what should prevent a parliamentary majority from doing whatever it can obtain enough votes to enact?
Justice Minister Yariv Levin has proposed substantial changes to Israel’s judicial system. The government’s programme would give elected politicians greater influence over the selection of judges, limit the Supreme Court’s ability to invalidate legislation and allow the Knesset, under certain arrangements, to override judicial decisions through a parliamentary majority. It would also alter the position of legal advisers whose opinions currently constrain government action in important ways.
Supporters describe the proposals as democratic reform. They argue that Israel’s judiciary has accumulated excessive authority without sufficient democratic accountability, allowing unelected judges and lawyers to interfere with policies chosen by elected representatives.
Opponents describe essentially the same institutional change in opposite language. They argue that weakening judicial review would remove one of the principal constraints preventing temporary parliamentary majorities from using state power without sufficient legal limitation.
Tens of thousands of Israelis demonstrated in Tel Aviv last night against the proposals.
The dispute is interesting because both sides are invoking democracy.
That should immediately make us suspicious of any argument treating democracy as though it has one obvious institutional meaning.
The government’s argument begins with electoral legitimacy. Judges do not win elections. Members of the Knesset do. If courts repeatedly prevent elected governments from implementing policies, then political authority has moved away from citizens towards an unelected legal elite.
There is genuine democratic logic here.
Judicial review creates what political theorists sometimes call the counter-majoritarian difficulty. A small number of judges can invalidate laws supported by representatives elected by millions of citizens.
Why should they possess that authority?
The conventional liberal answer is that democracy is not simply majority rule. Majorities need constraints because political power can be used against people who lack enough votes to protect themselves.
Suppose 60% of citizens vote for a government that wants to prohibit the remaining 40% from criticising it.
The policy possesses majority support.
It is not therefore democratic in any meaningful liberal sense.
If political competition itself can be restricted by whoever currently holds a majority, today’s electoral winner can prevent tomorrow’s majority from ever forming.
Democracy therefore requires some rules that even majorities cannot change easily.
Freedom of expression.
Political participation.
Independent elections.
Due process.
Minority rights.
Those rules protect the mechanism through which future majorities replace present ones.
This is why constitutional democracy contains a deliberate contradiction.
The majority governs, but the majority does not govern everything.
The difficult question is who enforces the boundary.
Courts are one answer.
They are useful precisely because judges do not depend directly on current electoral majorities. That insulation allows them to make decisions governments dislike.
The same insulation creates the democratic objection.
Independence and accountability pull in opposite directions.
A judge completely dependent on politicians is not meaningfully independent.
A judge completely insulated from every democratic institution risks becoming politically unaccountable.
No constitutional system eliminates this tension. Countries distribute it differently.
The United States gives the Supreme Court extremely powerful judicial review while presidents nominate justices and the Senate confirms them. Judges then serve for life.
Britain historically relies more heavily on parliamentary sovereignty, although courts operate within increasingly important statutory and rights-based constraints.
Germany has a powerful constitutional court embedded inside a highly structured constitutional system.
Israel is unusually interesting because many of the institutional counterweights found elsewhere are weaker or absent.
Israel has no single codified constitution. Instead, constitutional principles are distributed across a series of Basic Laws.
It has no second legislative chamber comparable with the US Senate or Britain’s House of Lords.
The executive usually emerges directly from the parliamentary majority, meaning the government and legislature are not institutionally separate in the American presidential sense.
Israel’s president performs mainly ceremonial functions and does not provide an independent elected veto over ordinary government policy.
This means a sufficiently disciplined governing coalition can control both the cabinet and a majority of the Knesset simultaneously.
The judiciary therefore carries a larger share of the burden of checking political power than it might inside a system containing several independent veto points.
That makes the current reform much more consequential than simply changing one institution.
Checks and balances are an ecosystem.
Weakening one check matters more when few substitutes exist.
Imagine a building supported by ten columns. Removing one may not threaten the structure.
A building supported by three columns faces a different calculation.
Constitutional design works similarly.
The relevant question is not whether the Israeli Supreme Court is too powerful considered in isolation.
It is what the total distribution of political power looks like after its authority changes.
This is where the government’s electoral mandate needs to be interpreted carefully.
Netanyahu’s coalition won enough seats to govern.
That gives it a legitimate mandate to pursue policy.
But ordinary electoral victory and constitutional transformation are not necessarily equivalent mandates.
A government elected partly on security, inflation, religion, Netanyahu’s leadership and dozens of other issues cannot automatically treat every vote it received as explicit approval for every institutional reform introduced afterwards.
This is the mandate problem again.
Votes are information-poor signals.
One citizen may have supported Netanyahu because of Iran.
Another because of economic policy.
Another because of religious identity.
Another because they disliked the previous coalition.
Another may strongly support judicial reform.
The ballot records the same party vote.
Governments naturally interpret that aggregation expansively because expansive interpretation increases their freedom of action.
Constitutional changes deserve greater caution because they determine the rules under which future governments operate.
This suggests a useful test.
Would Netanyahu’s coalition support these institutional rules if its opponents controlled 64 seats?
Would supporters of weakening judicial review still believe a parliamentary majority should face fewer legal constraints if a left-wing coalition controlled parliament?
Opponents should ask themselves the mirror-image question.
Would they defend exactly the same judicial powers if the Supreme Court consistently produced decisions they considered politically intolerable?
This is the veil-of-ignorance test I have returned to repeatedly.
Good constitutional rules should remain reasonably acceptable when we do not know who controls them.
If a reform appears attractive only because our side currently possesses the power it expands, it probably deserves more scrutiny.
That does not mean Israel’s existing judicial arrangements are perfect.
Institutions can become too powerful.
Courts can make controversial interpretations.
Judges are not politically neutral machines converting law into objectively determined outcomes.
Legal interpretation contains judgement.
The Israeli Supreme Court’s role has expanded significantly over previous decades, particularly following the constitutional changes and jurisprudence associated with the 1990s.
Critics therefore have legitimate grounds for debating the boundaries of judicial review.
Treating every proposed reform as inherently authoritarian would prevent democratic systems from correcting genuine institutional imbalances.
The question is degree and architecture.
Reforming judicial appointments is different from making judges dependent on the government.
Clarifying judicial review is different from making review practically irrelevant.
Changing legal advisers’ authority is different from removing independent legal constraint from executive action.
Institutional reform needs to be evaluated through the cumulative distribution of power it produces.
This is particularly important because democratic erosion rarely begins with a government announcing that democracy has ended.
Modern democratic backsliding usually occurs through legal mechanisms.
A government wins an election.
It changes judicial appointments.
It alters media regulation.
It changes electoral rules.
It modifies civil-service appointments.
Each reform is defended individually as technically legitimate.
No tanks enter parliament.
No constitution is necessarily suspended.
Yet the cumulative effect can make it progressively harder for opponents to compete on equal terms.
Hungary under Viktor Orbán is frequently discussed through this framework. Orbán’s governments repeatedly won elections and then used parliamentary majorities to reshape institutions in ways critics argue strengthened the governing party’s long-term advantage.
The relevant democratic concern is therefore not whether Netanyahu resembles Orbán personally.
It is whether the proposed institutional architecture increases the ability of one governing coalition to protect itself from future accountability.
That is the crucial distinction between using democratic power and entrenching democratic power.
Winning an election should give politicians authority to govern until the next election.
It should not make the next election less capable of removing them.
Courts matter partly because they can protect the rules governing that future competition.
But judicial power can itself become politically entrenched if judges effectively determine the boundaries of their own authority without sufficient external constraint.
Again, neither institution should be treated as inherently virtuous.
The objective is not maximising judicial power.
It is preventing any one institution from becoming final judge of its own limits.
This is where compromise should be possible in theory.
A government genuinely concerned about excessive judicial authority could negotiate narrower reforms with opposition parties, legal experts and civil society.
A judiciary concerned about democratic legitimacy could accept clearer statutory or constitutional boundaries around some powers.
Broad constitutional consensus would make reform more durable.
The government’s current parliamentary majority gives it less incentive to seek that consensus.
That is precisely why seeking it could be valuable.
Constitutional restraint matters most when restraint is optional.
A government that lacks enough votes to impose its preferred institutional design deserves little credit for negotiating.
A government that possesses the votes and still seeks broad agreement demonstrates that it understands constitutional rules should outlast its own majority.
This is another distinction between ordinary legislation and institutional design.
If Netanyahu’s government changes a tax rate and a future government dislikes it, the future government can change the rate back.
If it restructures judicial appointments and review powers, the change affects the conditions under which the future government itself operates.
Constitutional reforms therefore produce path dependence.
Today’s majority changes tomorrow’s political game.
That justifies a higher threshold of political caution even where the formal law permits change by ordinary majority.
The protests this weekend are part of that political constraint.
Tens of thousands of Israelis demonstrating against the proposals do not automatically prove the government lacks a mandate. Elections still matter more than crowd size when determining who governs.
But protests provide information about intensity.
Again, elections measure breadth while demonstrations measure intensity.
A government should pay attention to both without confusing them.
The most constructive response would not be to claim protesters override the election or that the election renders protesters irrelevant.
Both are legitimate forms of democratic participation serving different functions.
The challenge is maintaining a political environment in which institutional disagreement does not become existential.
That may become difficult because Netanyahu himself is currently on trial on corruption charges, which he denies.
Any government led by someone facing criminal proceedings will encounter additional suspicion when proposing changes to legal institutions.
That does not automatically make every reform self-interested. Policies should still be evaluated on their substance.
But conflicts of interest alter the burden of credibility.
If a politician under legal scrutiny changes the legal system, citizens reasonably demand stronger evidence that the reform serves a general institutional principle rather than the politician’s personal interests.
This is why institutional design should ideally occur behind something resembling a veil of ignorance.
Rules become more credible when they are written without knowing exactly whose case, party or government will benefit.
Israel’s current circumstances provide almost the opposite environment.
That does not invalidate reform.
It makes broad consensus more important.
There is also a minority-rights dimension that cannot be separated from Israel’s wider political structure. Israel contains secular and religious Jews, Arab citizens, different Jewish religious communities and profound disagreements over the relationship between religion and state.
Coalition governments frequently depend on relatively small parties representing particular religious or ideological constituencies.
A parliamentary majority can therefore contain groups with strong preferences about issues affecting citizens outside the coalition.
Judicial review becomes particularly consequential in that environment because minorities may lack enough parliamentary votes to protect themselves through ordinary coalition bargaining.
This is the classic liberal justification for courts.
Yet courts need legitimacy among majorities too.
If large sections of society conclude that judges simply impose elite political preferences through legal language, judicial authority eventually becomes politically vulnerable.
The current confrontation may therefore reflect a failure accumulated over years.
Supporters of the court underestimated how much resentment had developed against judicial power.
Supporters of reform may now underestimate how much constitutional anxiety exists about weakening it.
Both sides are discovering that institutional legitimacy cannot be assumed simply because one’s own constituency considers the institution obviously legitimate or illegitimate.
That is useful information.
Whether the political system learns from it is another question.
Israel has spent several years holding repeated elections because parliamentary fragmentation made durable government difficult. Netanyahu has finally assembled a majority capable of governing.
The irony is that resolving one form of instability may now be producing another.
A stable parliamentary majority can change institutions more decisively than an unstable coalition.
Political stability at the level of government can therefore create constitutional instability if the majority uses its cohesion to alter rules too aggressively.
Again, stability is multidimensional.
The same political system can become more stable in one sense and less stable in another.
This is why the word itself needs qualification.
A government lasting four years is not necessarily evidence of democratic health.
A government changing frequently is not necessarily evidence of democratic weakness.
The relevant question is whether institutions preserve contestability: can governments be removed, can opponents organise, can courts constrain unlawful action, can citizens criticise power, and do the rules remain sufficiently neutral that today’s losers retain a credible route to becoming tomorrow’s winners?
That may be the best standard for evaluating Israel’s reforms.
Not whether judges win.
Not whether Netanyahu wins.
Whether political power remains contestable after the reform.
If the answer is yes, Israel may emerge with a recalibrated but still robust constitutional system.
If the answer is no, an elected majority may discover that democracy can be weakened entirely through democratic votes.
This is the paradox liberal democracy has never completely solved.
We give majorities power because government without popular authority is illegitimate.
Then we limit majorities because unlimited popular authority can destroy the conditions that make future popular authority meaningful.
The majority governs.
The constitution constrains.
Courts interpret.
Parliament legislates.
Citizens protest.
None should possess everything.
Israel’s argument this week is ultimately about where those boundaries belong.
That argument is legitimate.
The danger begins when either side decides that because it represents democracy, the institutions constraining it must therefore represent something undemocratic.
No institution owns democracy.
The system works because they prevent one another from doing so.
