Will Israel's judicial reforms be rejected?

The outlook on protests and political instability in Israel

Will Israel's judicial reforms be rejected?
Illustration by Laurel Molly, © All Rights Reserved

Since the beginning of the year, Israel has been experiencing waves of protests against proposed judicial reforms, with hundreds of thousands taking to the streets in major cities. These reforms, if implemented, could potentially weaken Israeli democracy by reducing the judiciary’s role as a check on the government's power. Supporters argue that the judicial system interferes too much with legislative matters and displays bias towards liberal concerns, while also criticising the undemocratic process of appointing judges.

The scale of these protests, which have garnered support from both former and current military officers, has raised concerns about the stability of Benjamin Netanyahu's government. To gain insights into the future of these reforms, we posed several questions to our team of expert political forecasters. They were asked to assess the likely future of these reforms, whether Netanyahu's government will be able to weather the storm of protests, and how these developments might impact Israel's foreign relations.

Judicial Reform

The Supreme Court is unlikely to reject the "reasonableness" amendment

Israeli courts currently have the authority to review legislation for its constitutionality and legality, as well as to assess the “reasonableness” of decisions made by officials. This judicial review system is not unique to Israel and is also present in countries such as Britain, Australia, and Canada, which share a similar common law system.

On July 24th, the Knesset, the Israeli legislature, passed an amendment to the basic law that limits the court's interpretation of reasonableness. The opposition chose to abstain from voting on this amendment. In response, an Israeli non-governmental organisation (NGO) filed a petition with the Supreme Court, seeking a ruling on the constitutionality of this change. The Supreme Court is expected to hear the case this September. Its ruling on the constitutionality of the amendment will have significant implications for the balance of power between the judiciary and the legislature in Israel.

https://viz.swiftcentre.org/results/IoOUMFUgPo4?show=question%7Chelp

Swift forecasters think the chances of the Supreme Court overturning the law is 28%. The highest forecast, which held this at 40%, included the following reasoning:

“So far the court has never declared any Basic Law unconstitutional [which is] the reason I'm still under 50%. A strong counter is that the court has an incentive to do it in order to demonstrate its willingness and ability to do so, especially in preparation for future legal battles over potential other, more consequential laws.”

Forecasts were relatively high, considering that the Supreme Court has never overruled a Basic Law amendment and overturns only 5% of all other legislation. Another forecaster explained why:

“As this amendment (and others which may be passed later) directly affects the Supreme Court's ability to make certain types of ruling, we might think the chance is a bit higher than it has historically been. Indeed, the Court has indicated that there is one "exceedingly narrow" (in the 2021 words of the Court's President) restriction on the Basic Laws or their amendments: if they threaten "Israel's essence as a Jewish and democratic state"."

One forecaster highlighted comments from a member of the court in their rationale:

“One Justice, Esther Hayut, gave a speech in January 2023 saying that the Netanyahu coalition's proposed judicial reforms would strike a "fatal blow" to Israel's democratic identity if passed.”

Overall, however, our forecasters do not expect the court to overturn the reasonableness amendment.

Only a permitted amendment is likely to be listed on the Knesset website

The reasonableness clause has been a point of contention: whether the Knesset lists it on their official website depends on several factors, including whether the Supreme Court strikes it down, whether there are new elections in the next few months, and which parties would form a government at the end of that election. The forecasters’ baseline estimate of a 71% chance that the Knesset will list the amendment on their official website reflects the group's other beliefs: that the Supreme Court is not expected to reject the amendment (which would increase this probability to 87%) and that, if another election is held, Netanyahu has a good chance of winning it (explored further in the next section).

https://viz.swiftcentre.org/results/IoOUMFUgPo4?show=consequence&conditionals=noj9UJbYI5A

The forecasters collectively estimated that if the Supreme Court rejected the amendment, there would be a 30% chance that the Knesset would list it anyway, citing "a significant chance that the government ignores the ruling". However, one forecaster who believes it is particularly unlikely said:

“I doubt the amendment will stand up to both the legal challenge and the emboldened protests that will accompany a reversal by the Supreme Court if the Government decides to ignore the ruling. The coalition is too small to resist losing even a small number of members who may generally agree with the amendment but want to maintain Israel as a country ruled by law.”

Another forecaster wrote the following about the alternative scenario:

“In the case where the Supreme Court does not reject the amendment it's very likely it will stay in the law. The main way it could be removed is if there are early elections, Netanyahu's coalition loses, and a new government comes into power.”

As always, you can explore forecasters' extremely detailed rationales by hovering over the embedded graphics on this page and on our standalone summary page.

Overall, forecasters think that the reasonableness clause is likely to remain listed on the Knesset’s official website, especially if the Supreme Court takes no action against it.

Government Stability

Netanyahu is likely to remain Prime Minister

https://viz.swiftcentre.org/results/IoOUMFUgPo4?show=consequence&conditionals=MmpmoHgOrgs

We examined the potential impact of judicial reforms on Benjamin Netanyahu, the most influential figure in Israeli politics — specifically, we considered whether Netanyahu will retain his position as Prime Minister by the end of June 2024, with forecasters estimating a 76% chance that he will.

Netanyahu has held the role of Prime Minister for a remarkable 15 years, most recently assuming office for the third time in December 2022. As the Chairman of the Likud party, he leads a coalition of right-wing parties, including Likud, Shas, Otzma Yehudit, Religious Zionist, and United Torah Judaism. This coalition is regarded as the most right-wing government in Israel's history — Netanyahu, who previously sought to position himself as a centrist, now finds himself leaning towards the left within the coalition. The driving force behind the judicial reforms is Simcha Rothman, a member of the Knesset representing the Religious Zionism party, which is much further to the right than Netanyahu's Likud Party. One possible scenario that could lead to the collapse of the coalition is if the judicial reforms are rejected or abandoned, prompting the more right-wing parties to withdraw from the multi-party alliance. This would jeopardise Netanyahu's position as Prime Minister.

Forecasters expect that the Supreme Court rejecting the amendment to the Basic Law makes it 10% more likely that Netanyahu loses power. One forecaster said the following:

“A rejection by the Supreme Court would increase the political crisis. The current Knesset members are likely to be reluctant to dissolve the government but may be constrained by sustained mass protests. Netanyahu has a long history of defying the odds but has recently found himself with fewer tools, being on the left side of a far-right government as opposed to in the middle of a moderately conservative government.”

Forecasters expect that the Supreme Court permitting the amendment to the Basic Law makes it 4% more likely that Netanyahu retains power. One forecaster said the following:

“If the Supreme Court permits the reasonableness amendment, the chance of a general election occurring soon (which Netanyahu could lose, according to current polling) is significantly lower than if they do strike it down.”

While the difference from the baseline is small — with the spread between the outcomes being only around 14 percentage points — forecasters seemed to broadly agree on the direction of the effect of judicial reforms, and that Netanyahu is reasonably likely to survive as Prime Minister regardless.

The Knesset is moderately unlikely to be dissolved soon, unless the amendment is rejected

https://viz.swiftcentre.org/results/IoOUMFUgPo4?show=consequence&conditionals=0vc8n5ce0q8

Next, we sought forecasters’ opinions regarding the likelihood of the Knesset being dissolved before the end of June 2024. Since its establishment in 1948, Israel has seen the formation of 25 Knessets, resulting in 37 governments. However, in the past five years alone, there have been five Knesset elections, averaging one election per year. The rejection of the reasonableness amendment might create grounds for yet another election within the following year.

Almost all of the forecasters focused on the base rate of elections in Israel, with the baseline forecast of 35% very close to the base rate over the last two decades:

“Since 2003 there have been 10 elections, so using a naive Poisson model yields a 37% probability there will be at least one between September 1st and July 1st. However, if we take 2019 as a cutoff (with the justification that Israel is in a new and continuing period of heightened political instability), the base rate is one election a year, which means the Poisson process model predicts a higher probability: 65%.”

Forecasters generally agreed that the rejection of the amendment would increase the chance that the Knesset was dissolved, with the aggregate estimate being 14% higher than baseline. One forecaster said:

“If the court strikes down the amendment, I think it's fairly plausible that Netanyahu convinces himself that holding new elections will be good for him — he hasn't been involved until relatively recently in "selling" these judicial reforms. Even if he loses, Israeli politics are so variable he may well get another go at an election within 24 months. I think sticking fairly close to the historic base rate is sensible here.”

Some forecasters think that the amendment being rejected would mean Netanyahu will want to seek another democratic mandate:

"Netanyahu could go to an election to obtain a political mandate to go for another push. Alternatively, he could try to defy the court, and this could lead to a series of events that results in the collapse of his government and the dissolution of the Knesset.

Balancing against these considerations, as others point out: Netanyahu is an extremely effective political operator and very good at holding onto political power.”

Once again, forecasters were hesitant to deviate dramatically from the base rate, while generally agreeing that Supreme Court action would increase the likelihood of political instability and inaction would decrease it slightly.

40–50% chance that protests reach a record high in the next 10 months

Protests have become a regular occurrence this year in Israel, drawing significant numbers onto the streets. Some of these demonstrations have even attracted hundreds of thousands of people. While the majority of protests have been against reform, there have also been some pro-reform demonstrations of similar magnitude. Regardless of the Supreme Court's ruling on the matter, further protests will take place, although it is unclear how many. According to the Armed Conflict Location & Event Data (ACLED) Project, a well-respected tracker of protests around the world, the highest number of unique protests in recent years was recorded in March 2023, with a total of 445 protests documented. (ACLED data for protests in Israel dates back to the start of 2016.)

https://viz.swiftcentre.org/results/IoOUMFUgPo4?show=consequence&conditionals=5qapYvZvzrA

Swift Centre’s forecasters have a baseline expectation of a 43% chance of there being more than 450 protests in any single month, which rises to 51% if the Supreme Court rejects the amendment. One forecaster highlighted the importance of this judgement in fueling or dampening the protests:

“The Court proceedings are expected to be televised, so expect the country to be riveted during that time. If the Court declines to strike down the legislation, I would naturally expect the protests to fade over time, as there will be a lack of new catalysts to boost their momentum.”

Another forecaster agreed that the months around the Supreme Court proceedings would be the most volatile, but believed that it was unlikely large-scale protests would continue upon the Supreme Court’s rejection of the reforms — unless the government tried to push reforms through anyway:

“If the Supreme Court strikes down the amendment and the government accepts the Court's decision, this very likely means that there won't be more than 450 protests in Israel in any relevant month. However, if the government does not accept the court's decision, I think this would likely lead to more protests in a given month than Israel has seen on this issue so far.”

One forecaster highlighted changes to how the movement might protest:

“If the Supreme Court strikes it down, you'd expect there to be pro-reform protests who are outrageously angry at the supreme court and their left-wing supporters. I'd also expect counter-protests, and depending on the government's response to the court's actions, you could expect the anti-reform protestors to step up the size and intensity. However, it's not inconceivable that they consolidate demonstrations rather than protest locally, increasing size instead of number.”

As a group, forecasters suggest some serious uncertainty about whether the protests will increase in intensity, including uncertainty about the effects of the reforms being rejected by the Supreme Court.

Foreign Policy

Saudi Arabia is unlikely to recognise Israeli statehood

We also considered whether the turmoil associated with the judicial reforms will have broader repurcussions. Will its effects have an impact on Israeli foreign policy, for instance?

After the establishment of Israel in 1948, the Arab League declared war on the newly formed state, with many countries refusing to acknowledge its legitimacy. Although the war ended in 1949, the Arab-Israeli conflict has persisted, centred on general territorial disputes and the status of Palestinian territories. During the Trump presidency, the Abraham Accords saw the United Arab Emirates (UAE), Sudan, and Morocco normalise relations with Israel, becoming the first countries to do so in over two decades. Now, the Biden administration has expressed a desire to see Saudi Arabia normalise relations with Israel as well, in part to foster greater regional cohesion against their common adversary, Iran.

https://viz.swiftcentre.org/results/IoOUMFUgPo4?show=consequence&conditionals=3MFa60hzt1A

We asked our forecasters whether the prospect of judicial reform would impact this aspect of Israeli foreign policy. Firstly, relative to the low base rate of normalising relations between Israel and Arab countries, forecasters are optimistic about the prospect of normalisation between Israel and Saudi Arabia, with an aggregate estimate of 25%:

“Biden’s proposal is a grand deal if it is seen as increasing security cooperation against Iran, boosting economic trade with Israel, and increasing US arms purchases. Biden gains by securing a major bi-partisan foreign policy achievement. It would also boost Netanyahu within Israel if the terms are not too onerous regarding Israeli settlements in Palestine territory, especially if the judicial reforms fail and Netanyahu needs something to demonstrate success.”

There were only small differences between the baseline and conditional forecasts, with a spread of less than 4 percentage points, indicating that the group doesn’t think the judicial reforms, or even government stability, are particularly relevant to the foreign policy deal. One forecaster commented:

“The timeframe is a little tight here, as we could be technically right that normalisation doesn’t happen by June, but instead happens shortly after our deadline but further along in the US Presidential campaign. As time goes on, the Saudi position probably gets a little weaker as the Ukrainian war softens and more oil gets released back into the world market.

I don't think a change in the Israeli Government really affects this question. The exception is that the dissolution of the government would delay the process. I'm being anchored down on the base rate that democratic spats like this often get resolved and on the Lindy effect of this being a particularly persistent one.”

In general, forecasters think that normalisation of relations is unlikely, but more likely than the base rate, and largely independent of the Supreme Court’s actions on judicial reforms.

Summary

The judicial reforms implemented by Benjamin Netanyahu's government have sparked some of the most intense protests in Israel in decades. Despite this widespread opposition, forecasters at the Swift Centre expect that these reforms will continue to advance through the Knesset, anticipating that the Supreme Court will not overturn them.

However, should the reforms be struck down, the government's response could stoke the flames of the protests and might even lead to the government coalition’s collapse. That said, one forecaster remarked, “I’ve bet against Netanyahu before and lost again and again.”

https://viz.swiftcentre.org/results/IoOUMFUgPo4