Behind the Scenes: Israel's Revolutionary Unconstitutional Constitutional Amendment Decision

Abstract

On January 1st, 2024, in the midst of Israel's constitutional crisis, the Israeli Supreme Court struck down for the first time a constitutional amendment on grounds of unconstitutionality. The constitutional amendment was central to the government's reform plan and sought to abolish the Court's ability to use the reasonableness doctrine to review ministerial conduct. The Court's unprecedented move was accompanied by perplexing acrobatics of judicial reasoning, in which the justices based their arguments on what seems like originalist reasoning, running counter to Israel's dominant method of purposive interpretation. This Article reads between the lines of the justices' arguments, suggesting that the disagreement over how the reasonableness doctrine developed in Israel masks a deeper debate. In truth, the justices true concern is disagreeing over who is responsible for Israel's constitutional crisis, and whether restraint is the appropriate judicial strategy while judicial independence is under threat. This Article thus analyses the Israeli justices' dilemma in the context of a larger trend of democratic backsliding around the world. Lessons can be drawn from Israel's case study as other courts fight to retain their authority and to protect society from falling into authoritarianism.