Welcome To Israel’s “Deep State,” With MK Simcha Rothman

Judicial reform. The Israeli Supreme Court. Bibi Netanyahu. The hard right. These key elements of Israeli society — constantly at war with each other — were the reason Israel was more divided than ever in the days before October 7.

And though that division was swept away in the fervor of war, two years later, they’re all poised to erupt again.

To catch up: Israel has no constitution. It has no clearly defined separation of powers. This wasn’t intentional, but rather the result of Israel being formed so quickly in the days after 1948, with so many competing coalitions that agreeing on a set of rules was nearly impossible. They decided to build it up over time.

(It’s not an easy task — America had a weak constitution for 12 years, and the effort by Alexander Hamilton, James Madison, and John Jay to push a more thorough one was heroic.)

Because of Israel’s lack of a constitution, the role of the Supreme Court has always been hazy, along with the other branches. It was traditionally dominated by the country’s Ashkenazic, liberal elite, and as Israel’s demographics started shifting right — especially with the fast-growing religious population — the left saw the courts as a refuge.

What played out was simple. The Supreme Court sealed itself off from electoral changes and steadily expanded its role in politics, as voters increasingly elected right-of-center politicians. For example, the court controls its own judicial selection process and has grabbed enough power to block any policy it deems “unreasonable.”

For elected leaders like Prime Minister Benjamin Netanyahu, it’s not hard to see how such policies create roadblocks to fulfilling voter mandates.

So, for this reason, before Hamas’ October 7 attack, Netanyahu undertook a historic effort to reform the judicial system. He aimed to make the political system more democratic by giving more power to voters and parliament in selecting judges, while also removing what he called the "unreasonable" power of the courts.

The left, by contrast, wanted to keep the court “democratic” in the American sense of the word, which now means protecting liberal institutions that serve as a check on voters.

“Democracy is not in danger. The rule of bureaucrats is in danger,” Mr. Netanyahu said more recently. Meanwhile, critics like then-President Joe Biden called it an attack on “shared democratic values” in 2023.

But he backed down. Legal scholar Eugene Kontorovich told me last August, “The courts’ power is even more entrenched now than before the judicial reform battle. They assert that they have the power to override constitutional amendments. There are no reins on the courts’ power.”

Judicial reform became untenable for a few reasons. Israel’s growing religious demographic is less involved with longstanding institutions like the intelligence agencies, military, and labor unions, which are still dominated by the left.

When Netanyahu tried to push through the reform, threatening one of the Israeli left’s core power centers, the left responded by threatening to shut down the country (hospitals, airports, and all) through labor strikes. Reservists and Israel’s air force even threatened to stop defending the country.

Since the war with Hamas began, efforts to reform the court were mostly put on hold — until now.

Here’s what’s happened:

Bibi restarted his efforts to reform the courts and successfully gave politicians more control over choosing future judges. It’s only a fraction of what he wanted in 2023.

Then, after a report outlined Israel’s intelligence failures ahead of October 7, Netanyahu moved to replace Shin Bet chief Ronen Bar, who led the intelligence agency responsible for the failures. The prime minister said Bar was too “soft” on his priorities.

But Netanyahu was blocked by the Attorney General, who claimed that removing Bar was political and would politicize the agency. Bar had been investigating some members of Netanyahu’s team who allegedly took funds from Qatar.

(In reality, Bar had already politicized his role, having been highly critical of Israeli settlers in Judea and Samaria, who make up a large part of Israel’s right-wing voter base.)

Now, Bibi is trying to remove the AG, who oversees the prosecutors conducting corruption investigations against him.

But the Supreme Court is blocking that too, and has prevented Netanyahu from appointing a new head of intelligence. After a week-long struggle, Bar announced he would step down, but urged the Court to continue the battle.

So the prime minister is, in a sense, paralyzed. Meanwhile, more and more Israelis want the war to end and the remaining 59 hostages brought home. But Netanyahu, along with American negotiators, still can’t secure a deal.

Hamas is demanding extreme concessions, including the release of thousands of prisoners — a mistake Israel made in 2011 that helped set the stage for October 7. Elections are also a year away.

To better understand why Netanyahu is pushing judicial reform now — and what he’s trying to achieve — I spoke to Knesset Member Simcha Rothman, a member of Israel's hard-right Religious Zionist Party and no stranger to criticizing the prime minister. He’s also one of the central lawmakers pushing for reform and helped design the strategy behind it.

He founded The Movement for Governability and Democracy, a major force fighting judicial overreach and promoting the true separation of powers in Israel. He holds an LLM in Public Law from the joint Northwestern-Tel Aviv University program and served as a chaplain in the IDF’s Combat Engineering Corps.

Ari: The last time judicial reform was really pushed — before October 7 — the country nearly shut down. There were protests, NGOs funding them, and military leaders getting involved.

Now, it looks like judicial reform is back on the table with renewed efforts. Has the need for judicial reform become more obvious since October 7? Has anything changed?

Simcha: Yes, I think it’s become much clearer to everyone.

People started to realize that those who were threatening the state from within—by calling to abandon the IDF and causing a security crisis — may have actually weakened the IDF by dragging it into political battles.

So even those who disagree with the government now understand that there are red lines you shouldn’t cross, even during a political struggle.

Ari: And now it seems like Netanyahu has tried to replace the head of the Shin Bet, but the courts have interfered.

Is part of the renewed push for judicial reform about restoring sovereignty to the elected government — like having the power to appoint leadership within intelligence and security agencies?

Simcha: I think so.

I have my own thoughts on how Netanyahu handled that replacement — mainly that it should have happened much earlier — but the bigger issue is this:

The same people shouting “democracy” in the streets now defend a security official saying, “I’m not under the elected government’s authority.”

That’s not democracy. That’s the very definition of autocracy.

Even people who don’t vote for Netanyahu or this coalition are saying, “Okay, we don’t like this government, but we also don’t want the deep state running the country outside of democratic control.”

That’s why when we passed the law to change the judicial selection committee, almost no one protested. People didn’t want to give a blank check to unelected officials.

Ari: So when it comes to restoring democratic power, what are the actual day-one goals if judicial reform gets pushed through? What’s the first thing that becomes possible?

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