How judges, generals and bureaucrats abolished Israel’s democracy.
Gadi Taub
Gadi Taub is an Israeli bestselling author and co-host of the Israel Update podcast.
(Feb. 25, 2025 / JNS)
The extent to which Israel is ruled by unelected officials is difficult to convey to outsiders. It sounds too fantastic. So fantastic in fact, that it may be best described as “legal surrealism.”
Our rulers sound like they speak the language of politics and law, but much of what they say makes no sense at all. Consider the case of Benjamin Netanyahu’s testimony in his own trial.
Though Israel is in a state of war on several fronts, the judges presiding in that trial are forcing him to testify three days a week, every week, because, they have argued, it is “in the public interest” to bring the trial to a speedy conclusion. So, determining the exact number of cigars that Mr. Netanyahu received as gifts from friends has come to take precedence over his running of the war.
The judges know, of course, that they will pay no price for their risible definition of “the public interest,” which the public itself would undoubtedly have rejected. Because Israel’s deep state has achieved the dream of bureaucrats since the dawn of bureaucracy: the complete divorce of authority from accountability. The judges know that if their lopsided priorities hinder the war effort, it will be the prime minister, not those who coerced him, who will pay the political price.
At this late stage in the game, one may speculate that this is exactly the point of their whole exercise. Because the Netanyahu trial is not a real criminal procedure. It is a means for doing what elections could not: removing him from power. It is an arena of the struggle for supremacy between democracy on the one hand and the administrative state on the other.
The exacting schedule that the judges have imposed on the prime minister is less a reflection of any tangible public interest, and more part of a trap that our clever jurists have laid down for Netanyahu. You see, they have invented something they call “essential incapacitation.”
Contrary to the explicit meaning of incapacitation clauses in the laws of Western democracies, including those in the United States and Israel, this helpful little judicial gadget extends the idea of medical incapacitation to the realm of scheduling conflicts. According to this new abracadabra, if Netanyahu argues appearing in court three days a week impairs his ability to run the war, then the attorney general can declare him “essentially incapacitated” from performing his duties, and thus overrule the results of a legal election.
In other words, by the mere bureaucratic breath of her mouth, Attorney General Gali Baharav Miara will remove a sitting prime minister so as to vindicate the opinion of three Tel Aviv district judges about what constitutes the public interest. If you think this is downright crazy, that may be because it is.
Since we are at war, however, it is no joke. The president of Israel, whose job is largely ceremonial, can put an end to all this charade with his power of clemency. But then he, too, belongs to the same elite who have neutered our electoral politics. So, help from Isaac Herzog’s quarter is probably not on the way.
But all this is just the tip of the iceberg. Because outside the room in which the Netanyahu trial is taking place, democracy itself has already been officially declared null and void.
Under a heavy cloud of judicial-sounding terms, Israel’s Supreme Court judges have removed sovereignty itself—that is, the power of final decision over the whole realm of law and politics—from the elected branches of government and transferred it to themselves.
The Supreme Court completed this move in the course of the war, when it exercised a new power it invented for itself: judicial review over what we have for a constitution. It is now in the position to prescribe the rules of the political game, not just its concrete results.
On the basis of what—you may ask—can judges strike down a constitutional clause? Well—abracadabra!—on the unwritten “fundamental principles of the system.”
What are these principles? It turns out you have to have special training as a judge in order to deduce them. Or, to put it another way, they are whatever the judges say they are.
Add to this the fact that the Supreme Court Judges have a de-facto veto power over the appointment of their own associates, as well as over all other appointments of judges to the lower courts, and you will see that democracy has been wholly supplemented by the tyranny of one unelected branch of government that now officially holds absolute power, against which there are neither checks nor balances by any counterforce.
It is not just unelected, though; it is also unelectable. Because the median political opinion on our Supreme Court, it seems fair to guess, is around that of Meretz—a party so woke that it did not pass the threshold for entering the Knesset in the last election.
Thus, the only remaining question about Israel’s political system is whether the Supreme Court can invent a power it cannot overrule. All other disputes seem to have been settled to the satisfaction of our judges, generals and bureaucrats.
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