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Bibi’s New Deal Power Grab

American conservatives should be aghast at Netanyahu’s judicial reforms

Yoav Fromer
February 23, 2023
Library of Congress Prints and Photographs Division
Franklin D. Roosevelt photographed during his 1937 fireside chat, an effort to mobilize public support for his court-packing schemeLibrary of Congress Prints and Photographs Division
Library of Congress Prints and Photographs Division
Franklin D. Roosevelt photographed during his 1937 fireside chat, an effort to mobilize public support for his court-packing schemeLibrary of Congress Prints and Photographs Division

As part of a coordinated media blitz targeted at American audiences, Israeli Prime Minister Benjamin Netanyahu and his allies have been trying to make the case that his government’s sweeping judicial reforms, which have generated massive public demonstrations across the country in recent weeks, are meant to “make democracy stronger.” Employing tropes popularized by American conservatives, they have railed against “judicial activism,” warning that unelected judges have taken upon themselves to reinterpret the law in order to thwart the will of the people. Supporters of the controversial initiative claim that it provides a “necessary check on a court with nearly unlimited power.” “The main problem is that the functioning of a proper democracy requires a balance between the three branches of government, legislative, executive, and judicial,” Netanyahu explained to Fox Business. “In Israel, that balance has been taken off the rails.” Netanyahu stressed that decisions on important matters “should be left to the government that is elected by the people.”

If such reasoning sounds familiar to American ears, that’s not a coincidence: Netanyahu may fashion his rhetoric to endear himself to conservatives, but his judicial reforms were taken straight out of President Franklin D. Roosevelt’s playbook during his own failed attempt to reform the U.S. Supreme Court. Roosevelt’s infamous Judicial Procedures Reform Bill (1937) sought to expand the court (i.e., “court-packing”) under the guise of “strengthening democracy.” But Roosevelt’s conservative critics back then, like Netanyahu’s critics today, warned that fundamental principles such as individual liberty, separation of powers, and private property would be jeopardized. Given that Netanyahu’s reforms systematically undermine each of these principles, it is conservatives, more than anyone, who should be concerned by what the Israeli prime minister is doing.

To justify what critics consider to be a dangerous power grab effectively aimed at suspending any checks on his executive power, Netanyahu has ironically echoed, nearly verbatim, some of Roosevelt’s own reasoning. In a fireside chat he gave in March 1937 in an effort to mobilize public support for his court-packing scheme, Roosevelt declared that judges have overstepped their authority by invalidating public policy passed by Congress, complaining that the court “has improperly set itself up as a third house of the Congress … reading into the Constitution words and implications which are not there, and which were never intended to be there.” He, too, denounced the “arbitrary exercise of judicial power” by activist judges and promised to appoint “Justices who will act as Justices and not as legislators.” “The balance of power between the three great branches of the Federal Government, has been tipped out of balance by the Courts in direct contradiction of the high purposes of the framers of the Constitution,” said Roosevelt. “It is my purpose to restore that balance.”

In his effort to reform the judiciary as a steppingstone for carrying out controversial legislation, Netanyahu, like Roosevelt, violates three fundamental tenets of American conservatism.

The first is individual liberty. In his seminal study Democracy in America, the French thinker Alexis de Tocqueville, one of the patron saints of American conservatives, warned against what he famously labeled “tyranny of the majority.” Fearing the majority’s power to steamroll any individual or minority group that disagrees with it, he appealed to a higher moral law—“what is just”—that must trump the majority’s will in certain cases. Tocqueville, like the American founders, understood that durable institutional mechanisms had to be in place to prevent the possibility of democratic tyranny. Among these: divided government, a separation of powers that provides constant institutional checks, and a fixed constitution, bolstered by a vibrant civil society and free press.

Israel’s parliamentary system lacks all of these institutional protections for individual liberty, with the exception of an independent Supreme Court, virtually ensuring that if Netanyahu’s judicial reforms are carried out, his government will have the ability to impose a tyranny of the majority against any persons or group opposing its policies. Without a strongly anchored constitution guaranteeing individual liberties, Israel’s fragile Basic Law, enacted 30 years ago to protect “human dignity and liberty,” offers no real safeguards for either, especially since it can be changed with a simple majority in the 120-seat Knesset.

Which brings us to the separation of powers—the second tenet of conservatism violated by Netanyahu’s reforms. Absent the inherent institutional checks and balances of the American system, such as the distinction between federal and state power, a bicameral legislature, an independent executive with veto powers over legislation, and divided government (when the presidency and Congress are under the control of different parties), the only effective check on power in Israel remains an independent judiciary. As Alexander Hamilton famously observed, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”

But Netanyahu’s initiatives severely threaten any genuine separation of powers. Writing in Federalist 51, James Madison noted that “ambition must be made to counteract ambition” and observed that “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

After Netanyahu’s judicial overhaul, there will be no one to control the government other than the electorate, in periodic elections. But this offers no genuine assurances to individual or minority rights, especially given Israel’s unique security challenges. Minorities cannot rely on protections that might materialize only after the next election, precisely because they will never be able to prevail electorally. Netanyahu’s constant appeals to “let the people decide” may sound democratic, but they are no guarantee against majoritarian tyranny. Without an independent Supreme Court to come to their aid, Palestinians, Arab Israelis, women, LGBTQ people, and even secular Israelis will be defenseless against the reactionary, religious, and nationalist forces on the far right seeking to remake Israeli society in their image.

Finally, Netanyahu’s reforms dismantle any substantial protections for property rights, a sine qua non for any self-respecting American conservative. As even Jacob Frenkel, the former Netanyahu-appointed governor of Israel’s central bank, has warned, without judicial review, there will be no way to ensure protection of private property in Israel. Netanyahu has tried to assuage growing fears regarding the potentially disastrous effects of his judicial reforms on the economy by downplaying the influence of far-right hardliners in his government, reassuring foreign audiences and investors, “I’ve got my two hands on the wheel.”

But the 73-year-old prime minister, who is currently on trial for corruption, hasn’t addressed the key question: What happens after he leaves the political stage? The laws dismantling Israel’s separation of powers and compromising civil liberties will still be in place once Netanyahu is gone. Then what? Who promises to guarantee property rights and foreign investments in Israel, without an independent judiciary to do so? A populist government led by the Orthodox religious parties and religious Zionists would be far less committed to free-market principles and private property. Many of their voters dedicate their lives to studying at yeshivas and therefore don’t participate in the labor force, relying primarily on massive government subsidies for subsistence. It is not too difficult to imagine a future scenario of mass capital flight, brain drain, and a dire security crisis, not uncommon in Israeli history, in which a future government would opt to nationalize or confiscate private property in the name of democracy, as happened in Venezuela under Hugo Chavez. Without an independent judiciary they would have no impediments to doing so.

Netanyahu’s supporters, like Likud Member of Knesset David Amsalem, who is slated to become a minister in the Justice Department, explicitly call the judicial overhaul a “revolution.” Such combative language should alarm American conservatives who abhor radical political transformation and adhere to the type of gradualism and moderation advocated by thinkers like Edmund Burke.

Netanyahu may still be beloved and supported by Republicans in the U.S., but the revolutionary changes he is aggressively pursuing go against everything they stand for, ironically resembling Roosevelt’s failed court-packing plan more than any conservative initiative. American conservatives who wish to stay true to their principles should not only dissociate themselves from Netanyahu’s judicial overhaul, but also remind him of what true conservatism stands for.

Yoav Fromer teaches politics and history at Tel Aviv University.