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Israel's Constitutional Crisis is Class Warfare

The Israeli Supreme Court's political orientation decreasingly reflects the country's because a majority of the Judicial Selection Committee's members are sitting justices and unelected representatives from the Israel Bar Association. Israel, like Britain, lacks a written constitution and parliamentary sovereignty prevailed until the 1990s. Before the Supreme Court began abrogating legislation, future Supreme Court President Aharon Barak declared in a 1992 speech at Haifa University that the Knesset unwittingly surrendered its constitutional supremacy by enacting Basic Law: Human Dignity and Liberty along with Basic Law: Freedom of Occupation.

Barak does not explain how these two statutes magically bind all future parliaments while granting the Supreme Court sole authority to interpret them and nullify any legislation conflicting with their interpretations. He merely asserts,

Not everyone knows this, but recently a revolution has occurred in Israel... A Knesset law may no longer infringe the basic rights mentioned [in those two statutes], unless it is enacted for a worthy purpose, even then only to the extent necessary, and it fits the values of the state of Israel as a Jewish, democratic state.

He believed interpreting the statutes' ambiguous wording required "an awareness of the legal, historical, and social developments that we have witnessed and those yet to emerge." Unfazed by this seemingly impossible task, Barak concluded, "Israel has the best of judges at all levels. Now that we have been given the tools, we will do the work."

Three decades later, a coalition government, led by Benjamin Netanyahu and representing social groups permanently excluded from the self-replicating Supreme Court, sought to restore parliamentary sovereignty and change the Judicial Selection Committee's composition. Defenders of the status quo accused Netanyahu's government of instigating a constitutional crisis. Supreme Court President Esther Hayut alleges these reforms will "mortally wound the state's democratic identity" while Israel Bar Association President Avi Himi advocates Attorney General Gali Baharav-Miara removing Prime Minister Netanyahu from office. He told Haaretz that she should "declare him incapacitated. After that, it would be possible to work on new coalition alliances."

Most analysis focuses on Netanyahu's legal wrangles, ignoring the socio-economic anxieties actually fueling this crisis. Bret Stephens epitomizes this trend when he posits, "Netanyahu got himself into legal trouble, giving him a personal interest in bringing the judiciary to heel." In fact, militant opposition to the proposed judicial overhaul reflects secular, white-collar Israelis' fear of economic redistribution. Israel's newly installed coalition is the first lacking parties representing that demographic. However, the Supreme Court undemocratically perpetuates a secular, white-collar majority because a predominantly secular Knesset appointed the Supreme Court's original justices and white-collar professionals run the Bar Association.

Sectarian segregation defines Israeli society. The state unequally funds four parallel school systems: (1) state-secular, (2) state-religious, (3) independent (i.e. Haredi/ultra-Orthodox), and (4) Arab. From cradle to grave, cross-sector social interaction remains rare. Each sector maintains its own youth groups, media, charities, religious institutions, and political parties. However, a strong cleavage persists within the state-secular stream between white-collar, secular Ashkenazi Jews on the one hand and poorer, mainly Mizrahi, traditional Jews living outside Israel's cosmopolitan cities on the other. The former overwhelmingly support parties currently in opposition (e.g. Yesh Atid, National Unity, Labor, and Yisrael Beiteinu for Russian voters) while the latter mainly back Likud.

Alongside sectarian segregation, Israeli society suffers from high poverty and income inequality. The World Bank Poverty and Inequality Platform exposes Israeli poverty through its "share of population living on less than $10 a day" data, which is "adjusted for inflation and for differences in the cost of living between countries." In 2017, the Israeli figure was 9.50%, compared with 2.75% in the US, 1.79% in the UK, 1.15% in Sweden, and 0.75% in Germany. Even in Hungary, only 8.57% of the population lived on less than $10 a day. Israel's National Insurance Institute published on 12 January 2023 its "Report on the Dimensions of Poverty and Income Inequality - 2021." It calculated that 21% of Israeli citizens and 28% of children live in poverty. Simultaneously, the NGO Latet, which operates Israel's leading food bank, reported that 19.1% of Israeli children live in severe food insecurity.

The National Insurance Institute report recorded massive income inequality across Israel's six administrative districts. In the Central District, the main beneficiary of Israel's high-tech-driven economic boom, only 12.0% of residents and 14.4% of children live in poverty, whereas the Jerusalem District's figures are 39.9% and 49.0% respectively. The OECD's last comprehensive survey of Israel's economy, which was published in September 2020, found that the share of workers in poverty "increased significantly over the past 20 years" and now ranks among the highest of its member countries. It concluded, "The business tax system provides large benefits to internationally competitive and high-tech firms. This preferential treatment should be reviewed with a view to better targeting the scheme to ensure net benefits to society and reduced distortions."

Since Prime Minister Netanyahu's recently installed coalition government uniquely excludes parties representing white-collar, secular Israelis, they see the judiciary as their last line of defense against a more robust welfare state. The new government's coalition agreements call for broadly expanding Israel's social safety net. Provisions include boosting the negative income tax for low-paid workers, raising grants per child for poor working families, investing more than $1.6 billion in improving health services (particularly in poorer districts), allocating at least $280 million/year for rechargeable cards used to access "food and essential products required for a dignified life," and increasing public transportation student discounts. Furthermore, they commit to freezing the previous government's trade liberalization policy threatening Israeli farmers and canceling a traffic congestion tax scheme that would charge an ascending amount as drivers move closer to Tel Aviv's city center.

Leading opponents of the government's proposed judicial reforms callously express an Atlas Shrugged-style elitism. Former Shabak director Yuval Diskin wrote in Yedioth Ahronoth, "Strikes will explain to the majority... the minority that specifically opposes the legal and administrative revolution is actually the majority when it comes to carrying the burden: high-tech, doctors, lawyers, academia, etc." Verbit CEO Tom Livine promotes high-tech firms divesting from Israel and tax resistance unless the government abandons its judicial reform initiative. "When we, the engine of the economy, speak like that and really take these steps, I think that they will come to the table and speak."

In the following weeks, approximately 50 companies, mainly from the high-tech industry, withdrew billions of shekels from Israeli banks, exchanged them for foreign currencies, and deposited the funds abroad. Such economic sabotage recalls lockouts organized by Chilean employer associations to destabilize Salvador Allende's government before the 1973 military coup. Although Avi Himi requested the Attorney General, not the military, oust Netanyahu, former IDF Chief of Staff Dan Halutz predicts soldiers may refuse government orders. Halutz stated during a "Meet the Press" interview, "Soldiers and officers who will recognize that there is a dictatorship here - they did not come to be mercenaries of a dictator."

Recent polls suggest opposition hyperbole and economic sabotage is eroding popular support for the government. Knesset Constitution, Law and Justice Committee Chairman Simcha Rothman ascribes government supporters souring on restoring parliamentary sovereignty to opposition extortion, summarizing their logic as: "We think it is critical to enact the reform, but if it does actually happen, there is a group here that will set the country on fire, and we love the country more than we think it's necessary to enact the reform." To those citing survey results showing voters overwhelmingly prioritize lowering living costs over judicial reform, Rothman warns the government cannot legislate its economic agenda as long as the Supreme Court remains the "preserve of the privileged." Rothman insists, "When the court annulled laws in the name of the principle of equality, it almost always did so in order to protect the white Ashkenazi majority from Tel Aviv... They turned the bottom of the barrel of socioeconomic classes into the evil, greedy majority from whom we have to protect ourselves." Thus, social justice and judicial reform remain inseparable.

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