The Supreme Court’s striking down of the reasonableness law presents a golden opportunity to correct one of Israel’s thorniest constitutional dilemmas. It is the responsibility of both the government and the opposition not to let it pass.


Despite all that took place over the past 12 months in Israel, 2024 started out eerily similar to 2023, with the news dominated by the subject of judicial overhaul. Unlike last January, however, when it was sparked by the government’s announcement of its plans to remake the relationship between the Knesset and the courts, this January it was sparked by the Supreme Court’s rejection of the one element of the judicial overhaul that the government had managed to pass. The court—sitting in its full complement of 15 justices for the first time in Israel’s history—voted 8-7 to strike down the amendment to the Basic Law: Judiciary that the Knesset passed in July, which had barred courts from overturning government and ministerial actions on the grounds of them being unreasonable. Especially given that the decision passed by a majority of one and that two of the justices in the majority have already retired, it risks sending Israel spiraling back into the cycle of protests, accusations, and recriminations that dominated prior to October 7 over what democracy means, who has the right to interpret the will of the people, and how majority rule can or should be subject to limitations.

A crowd protests the judicial overhaul in Tel Aviv on July 5, 2023

This risk exists, but it shouldn’t. The Supreme Court’s ruling should not pull Israel back into its recent and unfortunate past, but give the country the opportunity to move things forward in a way that was too difficult during the first debates over the government’s judicial overhaul proposals. That is because the core issue here is not actually the reasonableness amendment itself or the government’s specific proposals, but the first-order principle of whether the Supreme Court has the authority to oversee Israel’s quasi-constitution. And while the Supreme Court was as narrowly divided as possible on whether it should strike down the particular law passed in July, there was no similar ambiguity on the question of whether it can exercise oversight of Basic Laws, a principle to which 12 of 15 justices signed on. That supermajority has created the conditions for Israel to resolve its constitutional crisis in a manner in which everyone can credibly claim victory and avoid further tearing the system apart.

When the government passed legislation preventing the judiciary from using the reasonableness doctrine while judging the validity of governmental and ministerial action, it purposely did so as an amendment to a Basic Law. It was stacking the deck in its favor and daring the court to do something it had never done before, which was striking down all or part of a Basic Law. It simultaneously embarked on a public relations blitz making the far-reaching claim that the merits of the arguments against the law didn’t matter because the Supreme Court didn’t even have the authority to exercise oversight over Basic Laws. This is why Americans who absorbed Prime Minister Binyamin Netanyahu’s constant English-language interviews with U.S.-based media over the summer heard him compare Israel’s Supreme Court striking down a Basic Law to our Supreme Court striking down a constitutional amendment, which was never an accurate comparison but was intended to be a political argument rather than a legal one. And indeed, Israel’s Supreme Court has now weighed in definitively on the legal question, and done so with a larger majority than the government had proposed be required to strike down regular legislation.

The Supreme Court building in Jerusalem

The reason Israel’s Supreme Court so easily dispatched the contention that Basic Laws be immune from judicial oversight is because it is obvious that despite serving as a quasi-constitution, they are nothing like a constitution. A Basic Law passes with a simple majority, as do regular laws. A Basic Law passes in three Knesset readings, as do regular laws. A Basic Law requires no longer incubation period, no extra debate, no affirmation by a subsequent Knesset or any other body. The only legislative feature that distinguishes a Basic Law from a regular law is that it is called a Basic Law. This also not even close to the first time that the Supreme Court has considered challenges to Basic Laws, or even the first time during the political turmoil that began with the first inconclusive election in April 2019; when Netanyahu formed his first unity government with Benny Gantz following the third election, the position of alternate prime minister was created by amending a Basic Law and was ultimately approved by the Supreme Court following a challenge. If anything lasting comes from the Supreme Court’s decision on Monday, it should be to bury for good the notion that Basic Laws are untouchable or that calling something a Basic Law makes it resemble a real-life constitution.

But whether Basic Laws are untouchable and whether Basic Laws should be untouchable are not the same thing, and while the answer to the former is no, the answer to the latter should be yes. It is how one gets to that yes that matters, and this is where the opportunity lies. There is no question that Israel suffers from not having a constitution, and also no question that it will remain without one for the foreseeable future. The halfway step is to make Basic Laws more like a constitution going forward, which means giving them an elevated status in more than name only. Many of the ideas floated across the first nine months of 2023 in response to the government’s proposals were good ones, whether it be subjecting Basic Laws to a required supermajority in order to pass, or having Basic Laws passed by consecutive Knessets before taking effect, or requiring a minimum threshold of opposition Knesset votes as part of the majority that passes a Basic Law. The point is to make Basic Laws reflect a consensus beyond the majority that won a given election, since that is what makes constitutions different than regular laws. If Israel were to pass a Basic Law on legislation that enshrined this consensus principle for Basic Laws—and adhered to whatever higher standards it enacts to pass this Basic Law itself—then there would be a valid argument for treating Basic Laws as a higher authority, and one that even supersedes the reach of the Supreme Court.

An anti-Netanyahu poster is paraded at a protest in Tel Aviv on April 1, 2023

It will be politically easy for Netanyahu and his government to use the Supreme Court decision as a way of rallying their troops, arguing that the system is rigged, and playing on their voters’ resentments in order to staunch their post-October 7 political freefall and make the next elections about something else. It will be politically easy for the opposition to celebrate this win and mark it as the death knell of the judicial overhaul, and to argue that the existing system should remain unchanged. But that would not be the smart thing for either side. If Israel is going to move past what has been its most politically toxic episode, it needs to settle this question of Basic Laws in a way that does not lead to a clear winner and a clear loser. The government should argue that the Supreme Court striking down a Basic Law demonstrates the need to give Basic Laws more protection, and the opposition should argue that its current win will be fleeting unless Basic Laws are given clear standards. Both sides should then sit down across the table, take advantage of the moment of unity that the horrors of October 7 created, hammer out a deal on a Basic Law for Basic Laws, and declare victory. Otherwise, Israel will let the next potential crisis become an actual crisis rather than turn it around before it is too late.