I. Antecedents

On December 29, 2022, Benjamin Netanyahu formed a new government, Israel’s 37th, after years of political upheaval and instability, characterized by frequent elections. Unlike his previous governments, this government was comprised only of right-wing and ultra-orthodox parties, in what has become Israel’s most right-wing and religious government to date. Soon thereafter, on January 4, 2023, the newly confirmed Minister of Justice, Yariv Levin, announced his ambitious plan for “reforming” the justice and law enforcement system, in what has become known as the “legal reform” plan, referred to here as the constitutional overhaul.Footnote ⁵ Although the overhaul was received with shock and alarm by many in Israel, it hardly came as a surprise to those closely following developments in Israeli constitutional and administrative law,Footnote ⁶ as discontent by right-wing, conservative, and religious elements has been festering since at least the late 1980s. Indeed, the overhaul leveraged a perfect storm: Public confidence in the Court was at an all-time low,Footnote ⁷ combined with a political constellation and will that made the overhaul seemingly possible to pass.

But what was the source of this discontent? Briefly, I will offer four reasons embraced by the right-wing, each of which addressed the overhaul attempt. Taken together, they demonstrate how the Supreme Court sought to increase its power vis-à-vis the legislative and executive branches, making it an ever more important actor in Israeli politics. The overhaul was thus an attempt to “restore the balance” that was supposedly lost as a result of judicial aggrandizement, leading to a democratic deficit according to overhaul proponents.Footnote ⁸ But what were the components of these deficits?

First, beginning in the 1980s, the Supreme Court relaxed its two main threshold requirements, standing and justiciability. Standing determines who gets to bring a suit to the Court, whereas justiciability means whether the Court will hear the case on the merits.Footnote ⁹ Both requirements, which were relatively strict in the first three decades after independence, were significantly eroded in the Resler case, which dealt with the conscription of ultra-orthodox men to the military.Footnote ¹⁰ In Resler, the Court held that a petitioner does not need to show a personal grievance or that they were uniquely harmed. Indeed, under the new standing rules, a petition asserting the state violated the law, even if it had nothing to do with the petitioner, was now enough to grant standing, opening the door to “public petitions,” especially civil society organizations and cause lawyering. Similarly, the Court abandoned its erstwhile justiciability requirement, holding that there were always normative criteria available to adjudicate any question.Footnote ¹¹ However, the Court reserved the option that due to considerations of “institutional legitimacy,” there will be instances, though rare, where an institution will be better equipped to resolve the issue. The upshot of the holding was the conflation of law and politics, because the Court would now hear “political” conflicts, because those too have legal aspects.

What changed is not only these doctrines, but the self-conception of the Court. From an institution whose main purpose was to resolve conflicts between the state and the individual while upholding the rule of law, the Court became an institution tasked with guaranteeing the rule of law more broadly, even without a concrete dispute, often giving itself the final say on divisive issues. Consequently, the Court began to handle more and more high-profile political issues, such as the drafting of ultra-orthodox men,Footnote ¹² Israel’s separation barrier in the West Bank,Footnote ¹³ denominational prayers at the Western Wall,Footnote ¹⁴ and protective measures against rockets in the South of IsraelFootnote ¹⁵ to name but a few salient examples. To be clear, all of this did not mean that the Court became more activist de facto, but the potential for judicial intervention was now a real possibility, even if rarely exercised.Footnote ¹⁶ This meant that the Knesset (Israel’s parliament) and government, when crafting policy, would now routinely factor in “what the Court might do.” Put differently, the erosion of standing and justiciability changed the incentives of other actors and had real downstream effects even if the case law did not significantly change. Israel was not alone in these developments. Courts around the world during these years became more dominant both in their powers of judicial review and in the matters they took up.Footnote ¹⁷

Second, and around the same time, the Court changed its reasonableness doctrine. Until the 1980s, administrative decisions that were absurd, arbitrary, or capricious—decisions that no reasonable official could make—could have been struck down on reasonableness grounds. Because very few decisions could be characterized as such, reasonableness was not frequently invoked. That changed in the Dapei Zahav case,Footnote ¹⁸ where the Court held that the duty to act reasonably did not only prohibit absurd or arbitrary decisions but also decisions that failed to assign the proper weight to all competing considerations. If the misassignment was severe, the Court would intervene and strike down the decision. This opened the door for much more aggressive review, including political decisions that were previously off limits. Thus, for example, the Court relied on the new reasonableness doctrine to order then Prime Minister Yitzhak Rabin to fire a minister who was indicted on corruption charges, before his trial began, holding that allowing such a minister to continue serving would undermine public trust in the government, even though the law did not prohibit such situations.Footnote ¹⁹

Third, the Court embarked on what became known as the “constitutional revolution.” In a landmark decision from 1995, the Court held that two Basic Laws enacted in 1992—Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation—were normatively superior to ordinary legislation, and, moreover, that the Knesset retained constituent power and could pass laws with constitutional status. Consequently, the Court held that it had the power to strike down legislation conflicting with the Basic Laws.Footnote ²⁰ However, since the Basic Laws were relatively sparse in the number of rights they protected, the Court expanded the number of constitutional rights through interpretation. Specifically, the Court interpreted the right to dignity as including a right to freedom of expression, equality, free exercise, and a minimum core of social and economic rights, including education, housing, and health.Footnote ²¹

As a result, the Court began to routinely review the constitutionality of legislation, ultimately striking down twenty-four statutes or provisions of statutes. Among them a law allowing for the privatization of prisons, a law allowing the holding of soldiers in military custody for ninety-six hours without seeing a judge, a law allowing the holding of asylum seekers for three years in detention without deportation or the pressing of criminal charges, a law allowing damage suits for calls to boycott Israel or the Occupied Territories without proving harm, and laws exempting the ultra-orthodox from military service. In recent years, the Court has gone a step further, embracing the unconstitutional constitutional amendment doctrine, and striking down an amendment to a Basic Law limiting the Court’s ability to invalidate governmental decisions on reasonableness grounds.Footnote ²²

Fourth, and finally, the Court developed jurisprudence that empowered the Attorney General, referred to in Israel as the Legal Advisor to the Government, vis-à-vis the executive. In the past, the Attorney General was viewed as an official representing the government’s legal position. That is still the case, but several decisions have consolidated their status as the exclusive interpreter of the law, save for the Court, for the executive branch, and the exclusive agent in charge of representing the government in court. Thus, even when the government disagrees with their legal interpretation, it is bound to adhere to it. Moreover, in cases of disagreement the Court will hear the Attorney General’s position, and it is up to them to decide whether the government is entitled to private representation in such cases. These developments gave the Attorney General significant power over the government, and it made the government’s job more difficult where the legality of its policy decisions were questioned by the Attorney General.

Taken together, these developments have created a more powerful Court and a more independent Ministry of Justice. More constraints were placed on the political process, including legislation, which led to increasing resentment among conservative and religious elites, who embraced an anti-establishment position. Crucially, this resentment was also colored along partisan lines.Footnote ²³ As the Court began to place greater emphasis on individual rights, religion and state matters, and military actions in the Occupied Territories, resistance grew among right-wingers and the ultra-orthodox. It is therefore not very surprising that in public opinion polls most of the public trust in the Court came from the left, whereas much of the decline can be attributed to the right-wing and Jewish religious groups,Footnote ²⁴ who viewed the Court as “getting in their way” of governing and thwarting the majority’s will.Footnote ²⁵

II. The Overhaul as a Response to Judicial Aggrandizement

Netanyahu’s right-wing coalition enabled the rhetoric to become reality. To be sure, this was not the first time that elements in Netanyahu’s government attempted to introduce changes to the judiciary. However, in the past there were always moderate—or moderating—elements in Netanyahu’s coalition that pushed the brakes.Footnote ²⁶ Not so this time around. Fighting for his political life amidst criminal charges of corruption, Netanyahu assembled an extreme right-wing coalition, flanked by religious fundamentalists and Jewish supremacists. Their lack of love for the Court was widely known, as was that of Yariv Levin, the newly appointed Minister of Justice who, for years, expressed a need for dramatic changes to rein in the Court and restore majoritarian democracy. On January 4, 2023, Levin announced his ambitious “reform plan.” All the elements of the plan correspond with the four developments discussed above, with the objective of scaling back the Supreme Court’s power and placing more of that power in the hands of the Knesset and government. Below I offer a brief summary of the plan, though it’s important to acknowledge that during the nine months since the plan was introduced, some elements of the plan changed, some were toned down due to public pressure, and others were temporarily abandoned, only to wait for a more opportune moment.

Initially, the overhaul provided for the following structural changes: First, changing the composition of the judicial selection committee. As presently structured, the committee is comprised of nine members, three of whom are Supreme Court judges, two members of the bar, two government ministers—one of whom is the Minister of Justice—and two members of Knesset. Appointments to the Supreme Court require seven out of the nine votes, ensuring that there is a broad consensus among competing factions, such as judges and politicians. Under the new plan, the committee’s composition would have changed dramatically by giving the ruling coalition the power to dominate the committee, decide on both appointments and promotions, without the need for compromise or taking into account the judiciary and the bar. This would have transformed the appointment process from a hybrid professional-political model to a completely political process.Footnote ²⁷

Second, upset with the Court’s power of judicial review of legislation and review of Basic Laws, the plan introduced an override clause, designed to enable the Knesset to “override” any judicial decision striking down a law with a majority of sixty-one out of the 120 member Knesset. Another provision provided that Basic Laws will no longer be subject to judicial review at all. Given that Basic Laws are created through the same process as ordinary legislation, this meant that the Knesset could immunize any law from judicial review simply by naming it a “Basic Law.”Footnote ²⁸

Third, the plan called for scaling back the Court’s conception of reasonableness. Instead of the more expansive version that required assigning proper weight to all competing considerations, the government opted for doing away with reasonableness altogether, at least as applied to decisions by ministers and the government as a whole. Decisions made by civil servants, however, as opposed to elected officials, would still be subject to reasonableness review.

Fourth, and finally, the plan sought to change the status of government lawyers. Under the current regime, government lawyers are appointed by committees, where politicians play a non-decisive role. Moreover, as described above, their “advice” was binding on the executive. The plan attempted to change both these elements, by politicizing their selection, and by providing that ministers—as opposed to civil servants—would not be bound by their advice and could disregard it.Footnote ²⁹

As stated above, numerous aspects of the overhaul changed over the period between January and September, largely due to public resistance. My objective here however is not to detail the various changes in formulations, but rather to show the overhaul’s ambitious initial scope, for it was this ambitiousness that generated resistance.

III. Public Mobilization Against the Overhaul–the Importance of Rights, Separation of Powers, and the Rule of Law

Even before the overhaul was formally announced, the intention to enact an override clause drew criticism from law professors, who began to organize against it.Footnote ³⁰ When the full overhaul was announced, it was met with fierce public mobilization, which included mass protests, road blockades, including around the Israel’s national airport, threats of strike, and even international pressure. Moreover, the protests were not limited to existing civil society organizations, but included the high-tech and finance sectors, academia, students, journalists, labor unions, new organizations established to fight the overhaul, and unaffiliated individuals.Footnote ³¹ The scope, intensity, and duration of these protests was unprecedented in Israeli history.Footnote ³² As a result, Netanyahu announced a halt in the legislation in favor of negotiations under the auspices of Israel’s President, Isaac Herzog.Footnote ³³ Those failed and the plan resumed. In the “end,” up until the war began, the government was successful in partially repealing reasonableness review. However, the law was challenged and then struck down by a full panel of the Supreme Court in an 8-7 decision.Footnote ³⁴ Yet even without the recent Court ruling, the war that began on October 7 put a de facto end to the overhaul because of the formation of an emergency government and shift in political efforts.Footnote ³⁵

Even though it was the war that halted the overhaul, it is clear the protest movement played a decisive role of postponing and even gutting the overhaul. Nine months of intense protests, in various forms, such as demonstrations, teach-ins, community lectures, social media activity, op-eds, conferences, and grassroots organizing, contributed to intense public and political pressure on the government and its coalition in the Knesset. But what was the basis for the protest movement? What values did it draw on when resisting the overhaul?

At bottom, the conflict between proponents and opponents of the overhaul was a disagreement about the proper conception of democracy. The proponents of the overhaul claimed that over time judges and government lawyers were replacing, bypassing, and usurping elected officials, thus converting Israeli democracy to a juristocracy, where those who made the “real” decisions were immune from replacement, thus creating a situation of authority without accountability. The overhaul, so they claimed, was meant to give back the power that elected officials lost, hence democratizing Israel’s flawed democracy.

But for opponents, the constitutional project taken up by the overhaul was exactly the opposite. What proponents saw as an enhancement of democracy, opponents identified as a culmination of a populist majoritarian conception of democracy, led by the previous Netanyahu governments.Footnote ³⁶ Democracy, they claimed, was not simple majoritarianism. Any proper understanding of democracy must include restraints, grounded in the rule of law, separation of powers, and human rights. All of these are necessary barriers to majority rule, which the overhaul placed at the forefront. The overhaul was thus not a project of bolstering Israel’s flawed democracy, but a populist project in line with those occurring in places such as Poland or Hungary, seeking to eliminate restraints on legislative and executive power.Footnote ³⁷ Moreover, given the institutional landscape in Israel, such moves would have even more dire consequences. Being a parliamentary democracy, the government dominates the Knesset, making the Court a crucial brake on government power. And, unlike other jurisdictions, Israel has only one house of parliament, does not decentralize executive power, is not part of a supranational body such as the EU, and is not subject to any international tribunal such as the European Court of Human Rights.Footnote ³⁸ This makes the overhaul even more dangerous, as it consolidates more power in the executive, but with fewer restraints on that power.

The protest movement thus focused on structural features of Israel’s democracy: The decentralization of political power, the rule of law as a limit on political power, separation of powers as a way to curtail political excesses, and human rights as a limit to majority rule. Substantive policies, other than their structural features, were rarely addressed. So, for example, the protest movement, even though it was decentralized, did not, for the most part, address the Israeli Occupation of the Palestinian Territories, arguably the most important policy issue for the past fifty years; it did not, for the most part, address inequalities between Jewish and Arab citizens of Israel; and similarly, it did not address any tensions in the concept of a “Jewish and democratic” state, choosing instead to celebrate Israel’s declaration of Independence, which attempted—without explaining how—to fuse the two.Footnote ³⁹

To be sure, this was a conscious choice. By choosing to focus on “neutral” or “procedural” values such as the rule of law or separation of powers without attending to their distributive outcomes, protest leaders could bring together under one tent disparate groups that differed sharply on substantive issues. The protests, therefore, were more about the “rules of the game” than the policy choices these rules generate. Indeed, on occasion conflict arose among the protestors, including statements that “this is not the time” to also demand the end of the occupation.Footnote ⁴⁰ This sentiment was well expressed in an interview by one of the protest leaders, Moshe Radman:

Radman was not an outlier. Most protest leaders, though not all, came from traditional Israeli elites, be it academia, the high-tech sector, or, for the most part, from the Ashkenazi center-left. Perhaps the most prominent organization at the front of the protests was “Ahim Laneshek” (“Brothers in Arms”), a group of Jewish military veterans who leveraged their combat experience against the government’s plan. As such, it is unsurprising that the focus of their interests was core democratic values rather than deeper problems that traditionally characterize the left, such as Israel’s ethnic democracy or the occupation.Footnote ⁴² This also helps to explain why, notwithstanding the massive protests, Israeli Arabs were largely absent.Footnote ⁴³ For the most part, there were very few Arab speakers in demonstrations; the participation of Arabs in the protests was far below their share of the population, around 20%, and protests were usually not held in Arab cities and towns. In a poll conducted by the Israel Democracy Institute, 93% of Arab respondents did not participate in any of the protests against the overhaul.Footnote ⁴⁴ Given that the government sought to dramatically alter Israel’s institutional landscape by concentrating more power in a right-wing nationalist coalition, what accounts for this conspicuous absence?

In conversations with Israeli Arabs, several reasons have surfaced. First, the overhaul was perceived as just “more of the same.” Arabs who already felt discriminated against by Israeli policy were not especially concerned with an additional policy failure which would not significantly alter their situation. Second, the protests were perceived as “Jewish,” concerned with issues that bothered Jews and not Arabs. As one young female activist noted:

Similarly, another young activist and lawyer said:

These sentiments seem to be widely shared.Footnote ⁴⁷ As one former Arab politician stated, “the leadership of the opposition, the side that’s protesting, is ignoring the Arab voice. They are excluding us from the protests. Their messages are not coordinated with us. We understand that the Court’s importance is in protecting minorities, but it’s important to remember that we are enmeshed in graver problems: violence, crime and chaos that are ripping us from inside.”Footnote ⁴⁸ Some Arabs, who did participate in the protests, did so notwithstanding criticism of past decisions that did not protect minority rights sufficiently, for they believed that the overhaul would further weaken an already embattled institution, which was their last hope.Footnote ⁴⁹

To conclude this section, the protest movement, dispersed and decentralized as it was, put forward three core values: Democracy, rule of law, and separation of powers. Those values generated a wealth of support among disparate groups along the political spectrum—though concentrated in the center-left camp—but failed to garner much support among Israel’s Arab minority, although generally they did not support the overhaul. My tentative explanation for this non-participation and exclusion is that although the protest was couched in universal terms—democracy, separation of powers, human rights, etcetera—it was widely understood as implicating particular Jewish concerns, for it failed to explicitly address the occupation and other issues germane to the Arab society in Israel.

I. October 7 and the Status of the Overhaul

By now, it is almost a cliché to say that October 7 changed everything.Footnote ⁵⁰ And yet it did. The attack by Hamas in southern Israel and the massacre that ensued, upended, or at the very least revised, all understandings about Gaza, Hamas, Israeli policy, and the conflict. The war that has been raging ever since has made everything more complicated, and the future is as grim as it is unclear. For obvious reasons, this Article will not address these issues and will focus only on the overhaul.

Unsurprisingly, as war broke out, all the plans to continue with the overhaul were shelved, which also fits well with a familiar pattern of “suspending divisions” during crises. Soon after the attack, on October 12, an “emergency government” was formed when the National Unity party joined Netanyahu’s coalition. The new coalition agreement stipulated that all non-war related legislation would be frozen.Footnote ⁵¹ As a result, no overhaul legislation has advanced since October 7. This also includes the centerpiece of the overhaul—the restructuring of the judicial appointment committee.

However, the coalition agreement was limited to legislation, which meant that the overhaul could continue, or at least not disappear, in other forms. For example, although the composition of the judicial appointments committee has not changed, the Minister of Justice and the overhaul’s architect, Levin, has refused to convene the committee during the warʼs first two months, and only recently did he agree to convene it, but without appointing new Supreme Court judges, where three vacancies are waiting to be filled.Footnote ⁵² Moreover, the only reason Levin conceded was because a petition to convene the committee was pending before the Court, which would have likely decided against him.Footnote ⁵³ In a similar vein, Levin has refused to nominate a new President for the Supreme Court, ignoring the long held constitutional convention of seniority that determines the order of Presidents. Displeased with both the convention and with the identity of a future liberal president, Levin has opted instead to stall and appoint only a few lower court judges.Footnote ⁵⁴

So, although the overhaul was officially “shelved,” it has not disappeared. Levin and others have already declared that once the war is over they will return to implement their program.Footnote ⁵⁵ In the meantime, the government has been taking small sub-constitutional measures intended at weakening veto points, as will be discussed below, that also further the overarching goal of the overhaul—increasing executive power at the expense of the Court and civil service. This “stalemate” has also generated a dilemma among protestors about the right time to return to the streets.

Unsurprisingly, the war has enabled the government and other state authorities to constrain individual rights. During wars people tend to “rally around the flag,” which consists of increasing their support of the state and its leaders while minimizing dissent.Footnote ⁵⁶ In Israel, the “rally around the flag effect” has played out differently. The majority of the public holds the government responsible for not preventing the October 07 attack. Most Israelis want an election once the war ends and according to polls conducted three months into the war, Netanyahu’s Likud party would have lost about half of its seats in the Knesset.Footnote ⁵⁷ Thus, and departing from extant research on the “rally around the flag effect,” rallying around the flag in Israel is not about supporting the current government, but about supporting Israel more generally. This explains the rise in patriotic and national sentiments, very much divorced from those who hold actual power. It is against this background that criticism is perceived as unpatriotic, whereas rights limitations are perceived as both rational and necessary.Footnote ⁵⁸

Soon after war erupted, and against the background of pro-Palestinian protests, the Commissioner of Police said to officers: “[I]f you want to be a citizen of Israel – welcome. If you want to identify with Gaza, you’re invited to do so. I’ll put you on buses that go there now.” In another statement the Commissioner clarified that there will be no permits for demonstrations.Footnote ⁵⁹ Permits for demonstrations against the war or calling for a ceasefire, of the type that would have been granted prior to the war, have been denied, or secured with great difficulty.Footnote ⁶⁰ This time, most of the protestors were from the Israeli left or Israeli Arabs. Permits for demonstrations by the right supporting the war or calling for Jewish settlement in Gaza were granted as a matter of course.Footnote ⁶¹ Over time, and slowly, more demonstrations received permits—more on this below—but police violence toward protestors grew.Footnote ⁶²

In a similar vein, the police and state prosecution have initiated dozens of investigations and indictments on charges of incitement to terrorism and identifying with a terrorist organization, the vast majority of which targeting Israeli Arabs. These indictments and investigations often focused on expressions made on social media, including WhatsApp groups. Importantly, soon after the war began, official policy on speech offenses changed. Prior to the war, the state prosecution had to sign off before the initiation of a police investigation, due to the sensitivity of criminalizing speech. But when the war began, the approval requirement was dropped, followed by an instruction to prosecute even in cases of a single speech act.Footnote ⁶³ Up until the end of November 2023, the police conducted 269 investigations and indicted eighty-six people for supporting terrorism or for identifying with a terrorist organization.Footnote ⁶⁴

Of these investigations and indictments, many were for speech that was objectionable, though not criminal. In one extreme case, police interrogated a Palestinian doctor doing her residency in an Israeli hospital “suspected” of blocking her Jewish friends on Facebook and on Instagram. The investigation revealed that no blocks transpired. Instead, the doctor deactivated and then reactivated her account. The doctor was released, but her entry permit into Israel was revoked, despite committing no offense.Footnote ⁶⁵ In another case that drew particular media attention, police arrested a Jewish civics teacher who, although condemning the attack of October 7, posted on Facebook, prior to the attack, on December 1, 2019,Footnote ⁶⁶ that IDF pilots are murderers. After the attack, he posted pictures of Palestinians killed by Israel.Footnote ⁶⁷ The police charged him with “deciding to commit treason,” an offense punishable by up to 10 years in prison. Though he was ultimately released without charges, a magistrate court nevertheless extended his detention where he spent four days in police custody. Finally, the attack on free speech also reached academia, when police arrested on incitement charges an Israeli Palestinian criminology professor at the Hebrew University, for speech made during a podcast where she called to dismantle Zionism and questioned the existence of sexual violence during the October 7 attack—a statement which she later retracted. Although she was released without charges, the case remains open.Footnote ⁶⁸

Limits on rights were not limited to individual speech. On October 20, the government issued emergency regulations that allow the Minister of Communications, with the consent of the Minister of Defense and the Ministers Committee on National Security, to shut down a foreign channel the Minister of Defense deems to be seriously harming the security of the state. The regulations also allow the Minister of Communications to seize all of the channel’s Israeli assets. So far, the Minister has relied on the regulations to shut down “Al-Mayadeen,” a satellite channel aligned with Hezbollah.Footnote ⁶⁹

Although the emergency regulations expire after three months, the Knesset enacted temporary legislation that preserves the government’s power to shutter the transmission of foreign channels in Israel if they believe, based on intelligence assessments, that the channel seriously harms state security.Footnote ⁷⁰ On May 5, the government voted to shutter the transmission of “Al Jazeera,” a channel long critical of Israel, claiming that it spread fake news and contributes to misinformation that harms the state and incites the Israeli Palestinian population.Footnote ⁷¹ The channel has been removed from some platforms, but the shuttering is relatively easy to bypass, which makes the closure more symbolic than substantive, but it is the first time since 1953 that a media outlet was shuttered due to its content. A petition against the law is currently pending before the Supreme Court.Footnote ⁷²

The government also restricted rights in more vulnerable contexts such as imprisonment and detention. When the war broke out, there were Gazans present in Israel, mostly persons with working permits who were in Israel legally or Gazans who came to Israel for medical treatment, also legally. Once the war began, Israel closed the border so Palestinians could not return to Gaza or relocate to the West Bank, because Israel restricts the movement of Palestinians between Gaza and the West Bank. The permits were immediately revoked, automatically converting the stay in Israel to illegal, and hundreds of Palestinians were detained in Israeli prisons, some under harsh conditions, including cages.Footnote ⁷³ At the same time, six Palestinians also died in Israeli custody, some as a result of violence inflicted by guards.Footnote ⁷⁴

Imprisonment was one issue. Another was the conditions of imprisonment. Crowdedness in Israeli prisons has been a problem for years, with the Court addressing the situation on numerous occasions, ordering that living space for prisoners be increased gradually. The Court based these decisions on the constitutional right of human dignity, to which all persons, including prisoners, are entitled.Footnote ⁷⁵ Soon after the war began, on October 18, the Knesset passed a temporary provision allowing further crowding, with living space under three square meters per prisoner, and imprisonment without providing a bed, in cases of emergency. The Law also provides that “security” prisoners, for example Palestinians either suspected or convicted of terrorist activity, will be crowded or denied basic conditions before the restriction will apply to “criminal” prisoners.Footnote ⁷⁶ After a declaration of emergency was issued, prison conditions, especially for Palestinian prisoners imprisoned on security charges, deteriorated swiftly, including access to water, electricity, medical treatment, and the right to counsel.Footnote ⁷⁷ A similar deterioration has been noted with regard to Palestinian detainees captured during the hostilities in Gaza, not all of whom are Hamas militants. Those have been transferred to holding facilities in Israel, and, according to media reports, have been exposed to harsh conditions in violation of Israeli law, including torture, sexual abuse, and numerous deaths.Footnote ⁷⁸ A petition to the Supreme Court demanded that the operation of the main holding facility, “Sde Teiman”, be ceased immediately. The petition, filed in May 2024, repeated the violations of both Israeli law and international law. The state, in its replies, did not acknowledge the violations, but rather emphasized that detainees were gradually being transferred to other facilities. On September 18 the Court accepted the petition, in that it held, unsurprisingly, that Israel must follow the law. However, the Court did not determine that any human rights violation occurred in the facility. Moreover, it expressly held that its decision was “forward looking”, and that any past wrongdoing must be handled through other legal channels. Footnote ⁷⁹

To summarize, this part sought to briefly describe domestic developments in Israel after the war broke out. As to be expected, restrictions on individual rights, such as the freedom of expression, liberty, and due process, increased. Some of these developments were also addressed by the Supreme Court and will be discussed below. My purpose, however, is not only to detail regressive measures, but to inquire into how these measures were met, especially because the preceding months saw a supposed emergence and consolidation of liberal values because of the protest movement. As I will argue below, liberal commitments expressed during the constitutional overhaul protests did not prove especially resilient.

II. Did the Protest Movement Succeed in Consolidating Liberal Values?

As expected, war brought about new restrictions on individual rights. This is not an anomaly since during wars and other times of crisis, the sense of urgency, loss of security, and a host of cognitive biases lead to the adoption of more restrictive policies. Crucially, these biases are shared by both the general population and the experts tasked with policy administration.Footnote ⁸⁰ It is thus not surprising, at the descriptive level, that the police, the state prosecution, and the government sought to constrain individual rights after war broke out.

And yet, a possible argument is that given the resurgence of liberal values in Israel between January-September 2023 due to the broad reach of the protest movement, many of the steps taken during the war should have received closer scrutiny, both from the public and, in appropriate cases, the Supreme Court which reviewed several of the measures discussed above. This did not happen.

Official police policy on demonstrations, as shown above, tightened significantly after October 7. The overall tone was dictated by the Commissioner, and it was translated to policy on the ground. Arabs and left-wing protestors have been denied permits or faced conditions that would not have been imposed prior to the war (for example date, time, and place restrictions).Footnote ⁸¹ In a case that drew the most attention thus far, police refused to grant permits to demonstrations in two Arab cities, Um El Fahem and Sakhnin, that would have called for ending the war and a ceasefire. Hadash, the political party organizing the demonstrations, filed a petition to the Supreme Court arguing that the sweeping refusal violates their right of free expression. The police, on their part, argued that there is a risk that the demonstration would include incitement to violence and would lead to an escalation of an already tense situation. Furthermore, it argued that police forces were already strained, and that allocating additional police to secure the demonstrations would create undue hardship on the police, especially in a time of war.

The Court, in a surprising decision, sided with the police. Although it recognized the demonstrators’ right to demonstrate, it held that resource constraints meant that the risk to public safety would be almost certain. Realizing that suppressing free expression, especially of voices critical of the war, was problematic, the Court tried to cabin its decision to the unique circumstances at hand, stating explicitly that the right still existed and that future cases will be examined on a case-by-case basis.Footnote ⁸² What was surprising in the Court’s decision was that it diverged from previous decisions, which always viewed resource constraints skeptically, siding with freedom of expression.Footnote ⁸³ Indeed, unlike other cases, where the Court pressed the police to allow a demonstration, even with conditions, here it approved a sweeping refusal.

It seems that the Court, too, was aware of the precedential potential of the decision. In a subsequent case, concerning an anti-war demonstration in Tel Aviv, Judge Amit, who wrote the decision in the previous case, said during oral argument that it’s important the demonstration take place so that “we will remove the perception that the Arab sector and that side of the political spectrum don’t receive demonstration permits.”Footnote ⁸⁴ Thus, the Court reversed course, and as the war progressed began to return, though not completely, to its pre-war stance.

Not so in other cases, especially when it came to detention and prison conditions. As described above, hundreds of Gazans were detained and arrested once war broke out. Petitions demanding information about where they are being held and by whom were submitted to the Supreme Court. Israel in response argued no such duty to disclose this information exists because petitioners were an NGO and not family members. The Court dismissed the petition, holding that there existed no duty to disclose such information, and, moreover, such an obligation does not even extend to family members during times of war and is matter of discretion, not duty.Footnote ⁸⁵

Soon thereafter, a similar petition was filed, which also demanded that information about Gaza detainees—persons legally working in Israel or present for medical treatment—be released to NGOs and their families. In addition, petitioners requested that detainees who are held unlawfully be released to the West Bank. The Court dismissed this petition as well, holding that since Israel evacuated the Gaza Strip in 2005, it was no longer holding the territory under belligerent occupation, and hence no correlative international law obligations apply. Consequently, petitioners could not establish the state’s duty to provide them with information regarding the location of the Gazan detainees.Footnote ⁸⁶

What was interesting about both decisions, however, was not the holding that the state had no legal obligation to inform the NGOs or the detainees’ families of their whereabouts. The decisions were striking because of what they did not contain – the legal basis on which the detainees were held in the first place. The detainees were not prisoners of war, a status Hamas militants are not entitled to, nor were they Hamas militants who could have been held under Israel’s law on the imprisonment of illegal combatants. The detainees were also not suspected of any crime because they were in Israel legally, and thus could not have been held under Israel’s criminal laws. What, then, was the legal authority under which their liberty was denied? The inevitable answer is that there was no legal basis to detain these individuals and they were held illegally. The Court, by focusing on whether notice must be given, circumvented the more crucial question regarding the legality of their arrest in the first place. Had it probed that question, it would have had to order their release.

Realizing that the arrests were illegal, the government enacted temporary emergency regulations that applied retroactively. These regulations, passed a month after the war began, legalized the arrests and set a legal path for holding and deporting detainees to Gaza.Footnote ⁸⁷

A similar fate befell petitions challenging prison crowding and conditions. The petition against the law allowing crowding contrary to previous Supreme Court decisions was summarily rejected. The Court stated that although it was mindful of its previous holdings, during wars the situation is different, and rights violations must be evaluated accordingly. Moreover, the harm was mitigated because the provision is temporary—the law was set to expire in three months.Footnote ⁸⁸

As for the petition on deteriorating prison conditions, especially for security prisoners and administrative detainees, namely Palestinians, the State argued that although some conditions indeed declined—for example, access to hot water, walks outside, electricity in cells, meeting with counsel, and non-emergency medical appointments—such derogations were necessary given the new security situation brought about by the war. The State also submitted a classified intelligence report which the Court read ex parte. The Court dismissed the petition, mostly on procedural grounds, holding that petitioners, NGOs, failed to support their claims with inmate testimony and a host of other threshold requirements.Footnote ⁸⁹

It is important to view these legal developments alongside the shifting public attitudes during the war. A series of public opinion polls conducted by the Liberty & Responsibility Institute at Reichman University revealed that the commitment to democracy and human rights has declined since the war began. For example, more Jews, compared with July 2023, preferred going to Jewish mechanics over Arab mechanics in November 2023, a spike from 29% to 47%. The same trend holds for handymen and medical doctors.Footnote ⁹⁰ In July, 56% of the Jewish population believed that the government needed to do more for equality of Israeli Arabs. In November, this figure dropped to 41%.Footnote ⁹¹ In July, 67% of respondents believed that freedom of speech should also be guaranteed to people “speaking against the state.” In November, only 54% stuck to that belief.Footnote ⁹² Similarly, in July, 37% of Jewish citizens believed that civil society organizations that harshly criticize the state should be banned. In November, that figure rose to 47%.Footnote ⁹³ In July, 45% of Jews thought that the right to vote should be revoked for those who refuse to declare that Israel is the nation state of the Jewish people. In November, 61% held that view.Footnote ⁹⁴ Finally, in July, only 26% of Israeli citizens thought that they should vote for parties and leaders who offered “fast and efficient” solutions even if they were not fully compatible with democratic principles. During the war, that number rose to 35%.Footnote ⁹⁵ More recently, in a Pew Research Center survey conducted in March and April 2024, 59% of Israelis believed that social media posts that express sympathy for civilians in Gaza should be censored, and 50% of Israelis believed that posts that criticize the Israeli government’s actions in the war should be censored.Footnote ⁹⁶

The emerging picture, though tentative, is that both the general public and state institutions, police, prosecution, the Supreme Court, have shifted their positions during the war. The public embraced, or increased its preference for, illiberal policies. State institutions also advanced and reflected these sentiments, as can be evidenced by incitement charges, speech restrictions, and declining detention and prison conditions for Palestinians in Israel.

What, then, explains the mass civic mobilization against the overhaul and the dearth of protests against these and other measures? Below, I suggest three non-mutually exclusive answers, without developing them at length given that at the time of writing, the war is still being fought and any definitive conclusions are likely impossible. The first explanation is that rights limitations, on the one hand, and public acquiescence, on the other hand, are not an anomaly which warrants investigation. Indeed, these are to be expected during times of war, where both public willingness and state readiness to curtail human rights is salient. This is undoubtedly true. It remains to be seen whether after the war, public attitudes, court decisions, and law enforcement policies will revert to their October 6 levels. And yet, it seems that deeper explanations are also available.

Another possible explanation is that nine months into the longest protest movement Israel has ever known, and given that the war has drafted many and left others worried and traumatized, protestors have hit a weariness that Richard Thompson Ford has referred to as “protest fatigue.”Footnote ⁹⁷ As a result of this fatigue, some protestors stopped protesting altogether. Others turned to protesting the government’s failed policy regarding the hostages in Gaza. More generally, the war shifted their attention away from the constitutional overhaul, which was already on the wane. Relatedly, for the protests to continue they would have needed to target the very gatekeepers they called to protect only a few months prior, such as the public prosecution and Attorney General. Thus, their unwavering support of these agents—perhaps now their former allies—stood in the way to fully voicing their criticism.

Of course, this also raises a related question. Given that the gatekeepers were active during the overhaul, often resisting attempts of government aggrandizing and even refusing to represent the government in the Supreme Court, what explains their relative silence during the war? One could argue that since the overhaul was suspended, the various gatekeepers could now revert to their day-to-day functions. This explanation, however, does not account for the fact that the resistance to the overhaul championed the very values that were compromised during the war, and which the gatekeepers were now willing to discard. One possible answer is that resistance to the overhaul lay squarely in the gatekeepers’ comfort zone, because it was a direct attack on the power of the Supreme Court and their power. Thus, they viewed the overhaul not only as an abstract threat to the rule of law, but to their own work, power, and status. Their resistance was emboldened, perhaps rendered possible, by the strong public rejection of the overhaul. But once the measures adopted during the war pertained to other areas, not directly implicating their authority and not generating public mobilization, they could “relax their hand” and defer to rising nationalist sentiments. This explanation suggests, inter alia, that resistance to the overhaul was also “tainted” by the gatekeepers’ institutional interests. Once their powers remained intact, violations of the rule of law or human rights either became less important or were more difficult to tackle given the prevailing public and political sentiments that largely embraced these measures.

My third and final explanation suggests we take a critical view of the liberal causes the protest movement championed. It is no accident that many, if not all, of the illiberal shifts during the war affected two groups: Israeli Arabs and Palestinians, and, to a lesser degree, Israeli leftists. The protest movement, which abruptly ended as war erupted, championed liberal values such as the rule of law, separation of powers, and freedom of expression, especially as it pertained to demonstrations. And yet that same movement was largely absent from all the developments described above. What explains this?

My argument is that the key to the protest movement’s success was its “depoliticization.” Of course, the movement was “political” in that it challenged the government’s far reaching political and legal program. But it chose a strategy of “depoliticization” in the values in championed, attempting to present them as “above partisan politics.” The protest movement, although it protested against the government, was careful not to color itself along partisan lines. Thus, for example, politicians, especially those from the opposition, usually did not speak during demonstrations. The leaders were all non-political figures, such as academics, the legal and high-tech sectors, or veteran social activists. Most were not affiliated with a political party or held any official office. As such, the movement could claim that all were welcome because the values it fought for were “universal” and generally applicable to all liberal democracies. So, for example, the main argument that the constitutional overhaul would concentrate excessive power in the executive could appeal to people on all sides of the political spectrum who believed in a stable distribution of political power, regardless of their affiliation.

But depoliticization also has costs, as can be seen from post-war developments. Depoliticization often masks real sites of struggle and conflicts over power. By focusing on “neutral” principles such as the rule of law and separation of powers, there was an avoidance of substantive policy disagreements that erupted during the war, for example the status of Israeli Arabs, Israeli policy toward the Palestinians, and the occupation, and the identity of Israel as both a Jewish and democratic state. Moreover, the clash between the supposed consolidation of liberal values embedded in the protest movement, and the seeming discarding of these values when war arrived and confirmed the claim made by Israeli Palestinians that the reform was an internal Israeli Jewish affair and not a true liberalization of the Israeli public sphere. This explains why the gains made by the protest movement quickly diminished during the war, and not only because of the war, because the target of the government’s repressive policies was the very public that was largely excluded or distanced itself from the protest movement. Put differently, the penetration of liberal values might be short term not only because of the usual dynamics of war, but also because the protest movement, in its quest for universality and consensus, decided to bypass real and deep conflicts in Israel society, that it left either unresolved or for a later time.

Another way to conceptualize this development is by asking what counts as the Israeli collective. During the protests, the Israeli collective was viewed as, in principle, comprising all citizens of Israel, Jews and Palestinians alike. True, Israeli Palestinians were not singled out as addressees of the overhaul, nor were the protests tailored to their specific goals and needs. Yet the protests were couched in general language precisely in order to garner support from various segments of Israeli society, including, but not limited to, Israeli Palestinians. Thus, the protests were understood as an “Israeli” example of civic mobilization, despite many internal cleavages. The attack on October 7 and the subsequent war shifted the idea of an Israeli collective, from a civic conception that sought to emphasize all Israeli citizens, to an exclusive nationalist collective of Israeli Jews, even though Israeli Palestinian citizens were also killed by Hamas. According to this controlling narrative, Hamas’s attack did not just target Israel; it targeted the Jewish state. It is thus not surprising that the attack was also framed as the deadliest attack on Jews since the Holocaust.Footnote ⁹⁸

As a result, the Jewish hegemonic understanding of the Israeli collective reverted to longstanding notions about Israeli Palestinians, viewing them as citizens, but not completely part of the body politic; citizens, but with an asterisk, straddling the divide between Arabs, Israelis, and Palestinians, not completely located in either, and caught in the middle of a national and religious conflict.Footnote ⁹⁹ Such a conception has long historical roots in Israeli history,Footnote ¹⁰⁰ but has resurfaced with more vigor after October 07, highlighting the tensions of Israeli Palestinian identity.Footnote ¹⁰¹ Consequently, this was inevitably reflected in the level of civic mobilization post-October 07. As Israeli Palestinians were the targets of government measures, they could not marshal the support of the protest movement, which had shifted to viewing them as falling not quite inside of the Israeli collective, or at the very least implicitly questioned their status, even if subconsciously.

This is ironic, as surveys two months into the war revealed Israeli Palestinians’ growing identification with the state and its policies. And yet, early on, it was Israeli Jews who feared Israeli Palestinian violence at a higher level than similar fears among the Israeli Palestinian society. Although also apprehensive about Jewish violence, which did not materialize, Israeli Palestinian society turned to self-censorship about the war and expressions of sympathy with Palestinians in Gaza.Footnote ¹⁰² This was also reflected in surveys among Israeli Palestinian students, showing that 72% of students stated they felt under surveillance and persecution for their activity on social networks, whereas 86% said they experienced a hostile environment online and on campus.Footnote ¹⁰³

All this is to say that notwithstanding familiar war dynamics and gatekeeper performance, the contrast between pre-war civic mobilization and post-war civic mobilization can also be explained along the shifting lines of the Israeli body politic. From an attempt at a more inclusive, though flawed, collective during the overhaul protests, to a more excluding collective during the war. Thus, war measures that mostly affected Israeli Palestinians, whether directly or indirectly, generated relatively little interest and attention from Jewish Israelis, who in turn did not mobilize around these issues. This is not to say that there has been no civic mobilization since the war, but its central focus has been calling for immediate elections and the release of hostages taken by Hamas. Issues that trigger rule of law and freedom of speech, central to the Overhaul, have been minimized if not almost completely neglected.