We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 November 2023
The article aims to further the understanding of the current constitutional crisis in Israel through the lens of political polarisation. Israel, like other countries around the world, is experiencing a substantial increase in political polarisation. Recent data shows that since 2009 affective polarisation (the extent to which individuals have negative feelings towards members of the opposing party or group and positive feelings towards their own party or group) has risen by 180 per cent. The article discusses the various phenomena associated with an increase in polarisation and the problems it raises, traces the reasons for the increase in polarisation in Israel, and argues that polarisation has played an important role in creating the conflict between the current government and the Supreme Court, and in making it so intense and intractable.
1 Yair Amitai, Noam Gidron and Omer Yair, ‘Political Polarization in Israel, 1992–2022’ (forthcoming) (draft with the author).
2 ibid (showing that the level of affective polarisation in Israel measured in 2022 surpasses the level of affective polarisation measured in the United States during the 2016 presidential elections).
3 This is characteristic of polarisation in European countries; see, eg, the classic work by Sartori, Giovanni, ‘European Political Parties: The Case of Polarized Pluralism’ in Palombara, Joseph La and Weiner, Myron (eds), Political Parties and Political Development (SPD-6) (Princeton University Press 1966) 137Google Scholar.
4 In this respect Cass Sunstein refers to the ‘cascade phenomenon’, a dynamic that pushes members of the two distinct ‘tribes’ to the extreme: Sunstein, Cass R, ‘Deliberative Trouble – Why Groups Go to Extremes’ (2000) 110 Yale Law Journal 71CrossRefGoogle Scholar.
5 Gidron, Noam, Adams, James and Horne, Will, American Affective Polarization in Comparative Perspective (Cambridge University Press 2020)CrossRefGoogle Scholar; Carothers, Thomas and O'Donohue, Andrew (eds), Democracies Divided: The Global Challenge of Political Polarization (Brookings Institution Press 2019)Google Scholar; Levi Boxell, Matthew Gentzkow and Jesse M Shapiro, ‘Cross-Country Trends in Affective Polarization’ (2022) Review of Economics and Statistics 1, 18, https://doi.org/10.1162/rest_a_01160 (graph showing a steep incline in affective polarisation levels in the United Kingdom from 2005 to 2020, the time of the study).
6 Gidron, Adams and Horne (n 5); Jost, John T, Federico, Christopher M and Napier, Jaime L, ‘Political Ideology: Its Structure, Functions, and Elective Affinities’ (2009) 60 Annual Review of Psychology 307CrossRefGoogle ScholarPubMed.
7 Mark Tushnet, ‘Constitutional Polarization and National Unity’ (2024 forthcoming) Law and Ethics of Human Rights (draft with the author).
8 Gidron, Adams and Horne (n 5).
9 Bassan-Nygate, Lotem and Weiss, Chagai M, ‘It's Us or Them: Partisan Polarization in Israel and Beyond’ (2020) 3 MENA Politics Newsletter 24, 24–26Google Scholar; Bassan-Nygate, Lotem and Weiss, Chagai M, ‘Party Competition and Cooperation Shape Affective Polarization: Evidence from Natural and Survey Experiments in Israel’ (2022) 55 Comparative Political Studies 287CrossRefGoogle Scholar.
10 Rafi Mann, ‘A Poisonous and Suffocating Atmosphere’, The Seventh Eye, 20 April 2019, https://www.the7eye.org.il/327574 (in Hebrew).
11 New Zealand may count as an exception to this generalisation as formally it achieved independence from the British in 1947. However, New Zealand acquired independence gradually in a process that started at least as early as 1907 when it became a dominion rather than a colony, and continued in 1931 when the United Kingdom enacted the Statute of Westminster Act. New Zealand's morphing into independence, therefore, does not reflect the general trend of decolonisation of the post-Second World War era.
12 See generally Mautner, Menachem, Law and the Culture of Israel (Oxford University Press 2011) Ch 4CrossRefGoogle Scholar ‘The Decline of Formalism and the Rise of Values’.
13 eg, Pariser, Eli, The Filter Bubble: What the Internet is Hiding from You (Penguin 2011)Google Scholar; Barberá, Pablo and others, ‘Tweeting from Left to Right: Is Online Political Communication More Than an Echo Chamber?’ (2015) 26 Psychological Science 1531CrossRefGoogle ScholarPubMed; Suhay, Elizabeth, Bello-Pardo, Emily and Maurer, Brianna, ‘The Polarizing Effects of Online Partisan Criticism: Evidence from Two Experiments’ (2018) 23 International Journal of Press/Politics 95CrossRefGoogle Scholar; Levy, Ro'ee, ‘Social Media, News Consumption, and Polarization: Evidence from a Field Experiment’ (2021) 111 American Economic Review 831–70CrossRefGoogle Scholar.
14 Grossman, Guy, Margalit, Yotam and Mitts, Tamar, ‘How the Ultrarich Use Media Ownership as a Political Investment’ (2022) 84 Journal of Politics 1913CrossRefGoogle Scholar.
15 The classic work by Piketty on the growing economic disparities in the West is illuminating in this respect: Piketty, Thomas, Capital in the Twenty-First Century (Harvard University Press 2014)CrossRefGoogle ScholarPubMed.
16 Goodhart, David, The Road to Somewhere: The New Tribes Shaping British Politics (Penguin 2017)Google Scholar.
17 Judis, John B, The Populist Explosion: How the Great Recession Transformed American and European Politics (Columbia Global Reports 2016)Google Scholar; Mauro, Danilo Di and Verzichelli, Luca, ‘Political Elites and Immigration in Italy: Party Competition, Polarization and New Cleavages’ (2019) 11 Contemporary Italian Politics 401CrossRefGoogle Scholar.
18 The report usually cited in this context is ‘Toward a More Responsible Two-Party System: A Report of the Committee on Political Parties’ (1950) 44 American Political Science Review 15.
19 McCoy, Jennifer and Somer, Murat, ‘Toward a Theory of Pernicious Polarization and How It Harms Democracies: Comparative Evidence and Possible Remedies’ (2019) 681 Annals of the American Academy of Political and Social Science 234Google Scholar.
20 Eli Finkel and others, ‘Political Sectarianism in America’ (2020) 370 Science 533; Levitsky, Steven and Ziblatt, Daniel, How Democracies Die (Viking 2018)Google Scholar; Stephan Haggard and Robert Kaufman, Backsliding: Democratic Regress in the Contemporary World (Cambridge University Press 2021).
21 For the partisanship conception of academia see ‘The Growing Partisan Divide in Views of Higher Education’, Pew Research Centre, 19 August 2019, https://www.pewresearch.org/social-trends/2019/08/19/the-growing-partisan-divide-in-views-of-higher-education-2; for the media: Jeffrey Gottfried and Jacob Liedke, ‘Partisan Divides in Media Trust Widen, Driven by a Decline among Republicans’, Pew Research Centre, 30 August 2021, https://www.pewresearch.org/short-reads/2021/08/30/partisan-divides-in-media-trust-widen-driven-by-a-decline-among-republicans; for the military: Michael A Robinson, ‘Who Follows the Generals? Polarization in Institutional Confidence in the Military’, ASPA Preprints, 17 September 2019, https://preprints.apsanet.org/engage/apsa/article-details/5d7bf7ebd0706700120e0524.
22 For an overview of the partisan turn of the Supreme Court see Richard L Hasen, The Supreme Court's Pro-Partisanship Turn (2020) 109 Georgetown Law Journal Online 50; Lee Epstein and Eric Posner, ‘Opinion: If the Supreme Court Is Nakedly Political, Can It Be Just?, The New York Times, 9 July 2018, https://www.nytimes.com/2018/07/09/opinion/supreme-court-nominee-trump.html.
23 Dobbs v Jackson Women's Health Organization, No 19-1392, 597 US ___ (2022).
24 ‘Majority of Public Disapproves of Supreme Court's Decision to Overturn Roe v. Wade’, Pew Research Centre, 6 July 2022, https://www.pewresearch.org/politics/2022/07/06/majority-of-public-disapproves-of-supreme-courts-decision-to-overturn-roe-v-wade. A more recent poll has shown an even greater disparity between Republicans and Democrats when measuring the level of ‘job approval‘ of the Court (74 per cent of Republicans expressed trust in the Court and only 13 per cent of Democrats): Jeffrey M Jones, ‘Supreme Court Trust, Job Approval at Historical Law’, Gallup, 29 September 2022, https://news.gallup.com/poll/402044/supreme-court-trust-job-approval-historical-lows.aspx.
25 Jennifer McCoy and others, ‘Reducing Pernicious Polarization: A Comparative Historical Analysis of Depolarization’, Carnegie Endowment for International Peace, Working Paper, May 2022, https://carnegieendowment.org/files/McCoy_et_al_-_Polarization_final_3.pdf. The publication documents 105 episodes since 1900 in which countries were able to successfully depolarise from pernicious levels of polarisation and remain depolarised for at least five years. It finds, however, that in the long term many of them fall back into polarisation, arguing that polarisation harms society's ability to adjust to change.
26 Porat, Iddo, ‘Court Polarization: A Comparative Perspective’ (2023) 46 Hastings International and Comparative Law Review 3, 22–30Google Scholar.
27 According to Basic Law: The Judiciary, judges in Israel are appointed by a committee of nine members made up of representatives of the executive, the legislature, the Supreme Court and the Israel Bar Association. The ethos of nomination throughout its first decades of operation was strictly professional, and did not involve political or ideological representation as part of the considerations for nomination.
28 See generally Strohmeier, Gerd, ‘Does Westminster (Still) Represent the Westminster Model? An Analysis of the Changing Nature of the UK's Political System’ (2015) 14 European View 303CrossRefGoogle Scholar.
29 For a sense of liberal (over-)optimism after the collapse of the communist block see Fukuyama, Francis, The End of History and the Last Man (Free Press 1992)Google Scholar.
30 Hirschl, Ran, ‘The Judicialization of Mega-Politics and the Rise of Political Courts’ (2008) 11 Annual Review of Political Science 93CrossRefGoogle Scholar. For a general overview of judicial globalisation and its social and intellectual logic see Slaughter, Anne-Marie, A New World Order (Princeton University Press 2004) 70Google Scholar; Slaughter, Anne-Marie, ‘Judicial Globalization’ (2000) 40 Virginia Journal of International Law 1103Google Scholar; Martinez, Jenny S, ‘Towards an International Judicial System’ (2003) 56 Stanford Law Review 429, 436–37Google Scholar.
31 eg, Margit Cohn, ‘Legal Transplant Chronicles: The Evolution of Unreasonableness and Proportionality Review of the Administration in the United Kingdom’ (2010) 58 American Journal of Comparative Law 583.
32 See Mautner (n 12).
33 Tushnet, Mark, ‘Alternative Forms of Judicial Review’ (2003) 101 Michigan Law Review 2781CrossRefGoogle Scholar.
34 See Porat, Iddo, ‘The Platonic Conception of the Israeli Constitution’ in Dixon, Rosalind and Stone, Adrienne (eds), The Invisible Constitution in Comparative Perspective (Cambridge University Press 2017) 268Google Scholar, 277–82.
35 For the UK, joining the European Union in 1975 also contributed to the erosion of parliamentary sovereignty and introduced new European concepts to English public law; see Amos, Merris, ‘The Value of the European Court of Human Rights to the United Kingdom’ (2017) 28 European Journal of International Law 763CrossRefGoogle Scholar.
36 eg, R v Oakes [1986] 1 SCR 103 (Canada); CivA 6821/93 Bank Ha'Mizrachi and Others v Migdal (9 November 1995), https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts%5C93%5C210%5C068%5Cz01&fileName=93068210_z01.txt&type=4.
37 Tamar Hermann and others, ‘Israeli Democracy Index 2021: Democratic Values’, Israel Democracy Institute, 6 January 2022, https://en.idi.org.il/articles/37857. The same survey taken in 2019 found that 59 per cent of Israelis think that judges are affected in their decisions by their political inclinations to a great or considerable extent: Tamar Hermann and others, The Israeli Democracy Index 2019 (Israel Democracy Institute 2019) 48, https://en.idi.org.il/media/14242/the-israeli-democracy-index-2019.pdf.
38 eg, Owen Bowcott, ‘Plan to Reform Supreme Court is Attack on Independent Judiciary, Says Labour’, The Guardian, 15 November 2020, https://www.theguardian.com/law/2020/nov/15/supreme-court-plans-an-attack-on-independent-judicary-says-labour (referring to conservative proposals aimed at stopping judicial involvement in constitutional issues).
39 Robert Danay, ‘A House Divided: The Supreme Court of Canada's Recent Jurisprudence on the Standard of Review (2019) 69 University of Toronto Law Journal 3; JJ McCullough, ‘How Supreme Court Reform Unites Canadian Conservatives and American Liberals’, The Washington Post, 14 July 2022, https://www.washingtonpost.com/opinions/2022/07/14/canada-supreme-court-conservatives-american-liberals-undemocratic.
40 Mainly as a result of recent nominations by the conservative Minister of Justice, Ayelet Shaked, a conservative camp has been formed in the Israeli Supreme Court, with 4–5 out of the 15 Supreme Court justices now belonging to an evolving conservative camp; see Michael Hauser-Tov and Chen Maanit, ‘Libertarian Israeli Think Tank Pushes “Conservative” Judges for Supreme Court’, Haaretz, 25 November 2021, https://www.haaretz.com/israel-news/2021-11-25/ty-article/.premium/judicial-candidates-evaluated-by-think-tank-in-effort-to-gain-right-wing-majority/0000017f-db6e-d856-a37f-ffeef0f80000.
41 Iddo Porat, ‘Solving One-Side Polarization: Supreme Court Polarization and Politicization in Israel and the U.S.’ (2021) 15 Law and Ethics of Human Rights 221, 235.
42 eg, David Said, ‘Why Canada's Supreme Court Isn't Likely to Go Rogue like its U.S. Counterpart’, The Conversation, 5 July 2022, https://theconversation.com/why-canadas-supreme-court-isnt-likely-to-go-rogue-like-its-u-s-counterpart-186020.
43 See n 38 and accompanying text.
44 Edward Malnick, ‘Supreme Court To Be Overhauled to Curtail Its Constitutional Powers: Reforms Being Considered Include a New Name for the Body to Make Clear that It Is Not a U.S.-Style Constitutional Court’, The Telegraph, 14 November 2020, https://www.telegraph.co.uk/politics/2020/11/14/britains-supreme-court-faces-overhaul-concerns-us-style-election; Ella Glover, ‘Boris Johnson “Planning Reforms which Would Let Ministers Overrule Judicial Decisions”’, The Independent, 6 December 2021, https://www.independent.co.uk/news/uk/politics/boris-johnson-reforms-judicial-review-b1970290.html; Jessica Elgot, ‘Johnson Publishes Plans to Regain Power from Courts and MPs: Legislation Will Ban Courts from Ruling on Dissolution of Parliament and Allow PM to Call Elections’, The Guardian, 1 December 2020, https://www.theguardian.com/politics/2020/dec/01/boris-johnson-publishes-plans-to-take-power-back-from-courts-and-mps.
45 Article 30 of the Coalition Agreement between the Likud Party and the Religious Zionism Party, 29 December 2022, reads as follows (a similar provision also appears in the Coalition Agreement between the Likud Party and the Ultraorthodox Parties, 28 December 2022): ‘All the coalition parties would support all legislation proposals, including in Basic Laws, as suggested by the Minister of Justice, with the purposes of, inter alia, regulating the relationship between the branches of government and their powers, and in particular the relationship between the Knesset and the government vis-à-vis the judicial system and the Supreme Court and the method of selecting judges. All of this is in order to restore the proper balance between the branches. The legislation will also include enacting Basic Law: The Legislation, and an override clause. All law proposals mentioned in this article will be absolutely and fully prioritized in any circumstances over any other legislation’, https://main.knesset.gov.il/mk/government/pages/governments.aspx?govId=37.
