On May 13, 2026, Professor Issachar Rosen-Zvi of Tel Aviv University Law School presented the second lecture in the Nazarian Center-Tel Aviv University Law School webinar series regarding key legal issues in Israel - “Judicial Reform” and the battle over Israel's Supreme Court. UCLA Law School Professor Jon Michaels served as Moderator for the webinar, which attracted an audience of 250 people from 12 countries. Following the webinar, Professors Rosen-Zvi and Michaels continued the conversation in an exchange of emails, which both Professors have authorized the Nazarian Center to publish below for the benefit of our students, faculty and broader community audience who are interested in this important and ongoing controversy in Israel.

The recording can be accessed here: https://www.international.ucla.edu/israel/article/295640

Dear Issi,

Thanks for the excellent presentation.  If I may, and in case it is of any help, I wanted to expand upon a few of the points I attempted to raise in our time together.

While listening to your presentation, I kept thinking about how one strikes the right balance — that is, how to accommodate and choose between competing interests.  Everything that you discussed requires tradeoffs and sacrifices along the following dimensions (familiar to those in the US and Israel alike):

1.  Popular sovereignty vs. counter-majoritarianism to protect a “thick" version of democracy (protection of individual rights, due process, etc.)

2.  Extensive checking and balancing vs. highly streamlined responsive governance

3.  Extensive audits, internal investigations, and opportunities for admin and judicial review (“precautionary constitutionalism”) vs. a higher tolerance for abuse and maladministration in service of efficiency (and to preempt bad-faith, partisan obstructionism masquerading as good governance).  See, e.g., Justice Scalia’s dissent in Morrison v. Olson (1988); Adrian Vermeule, Optimal Abuse of Power (2015)

4.  "Sticky" vs. readily amendable laws and constitutional provisions. 

The US and Israel each has its respective deep struggles and each finds itself in a dangerous constitutional moment.  In the US, it sometimes feels as if, in ordinary times, we’re strangled by so many checks (presidential system, strong judicial review, and powerful states with their own constitutional standing) – and, to make matters worse,  it’s far from clear those checks are safeguarding us right now.  In other words, it’s possible that all these checks inhibit good, swift, decisive governance under normal circumstances and may not even do much to prevent presidential abuses in a moment of great duress. 

I took the heart your response to my questions about approaching judicial reform from the perspective of what’s the ideal arrangement (“first principles”) and what measures should be taken given the current challenges.  I was curious which measures were ones that, perhaps, are preferable only so far as they help get us through a given crisis and what measures would be desirable under any and all circumstances such that the immediate crisis can be used as an opportunity to initiate overdue reforms.    (Rahm Emanuel is often quoted for having said "never let a crisis go to waste"— his being the global financial meltdown in 2008). Obviously those of us concerned about the current US president’s threats to democracy and the rule of law spend a good deal of time grappling with similar sets of questions.  Recalling the issue of federalism that Yishai covered in the first webinar, it’s worth noting that Trump has turned no shortage of otherwise pro-national government liberals and progressives into supporters of states’ rights. 

Last, your points about the bureaucracy, which you mentioned at the very end of our hour together, are well taken.  Here too there are important points of comparison and contrast with the US.  One reason some unitary nations may not need strong forms of external separation of powers is that they have a very forceful bureaucracy, and so there’s some security in a robust  internal separation of powers. (And strong external separation of powers might be overkill, per my comment above.)   Right now so much in the US is effected through purely executive action (because of, among other things, congressional gridlock).  That style of governance would be far less dangerous if the US had a stronger civil service.  It’s also no coincidence that over the past 20-30 years  both Republican and Democratic presidents have been increasingly harsh on even our modest civil service.  As more is routed through executive agencies rather than Congress, the encumbrances and pushback must come from civil servants, not legislators.  I’ve written some on the subject—arguing that if we bolster our civil service, we might be less fearful of presidential unilateralism.

Thanks again for your presentation.  It was a treat to serve as your moderator!

Best, Jon

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Professor Rosen-Zvi’s Response to Professor Michaels

Dear Jon,

Thank you so much for the thoughtful note, the generous feedback, and the references. I truly appreciated both your comments during the discussion and the way you framed these questions afterward. Your observations go directly to the core tension underlying the entire debate: not simply “courts versus democracy,” but rather how constitutional systems calibrate distrust — how much friction, inefficiency, and institutional rivalry a democracy is willing to tolerate in exchange for reducing the risks of concentrated political power.

I found your point about post-10/7 governance especially important. One of the difficulties in moments of acute crisis is that the virtues and dangers of streamlined executive power become visible simultaneously. On the one hand, emergencies expose the costs of excessive fragmentation and paralysis; on the other hand, they also create conditions in which temporary concentrations of power can become normalized or insulated from later correction. In that sense, the question is not only how easily extraordinary measures can be enacted, but also how reversible they remain once the immediate crisis subsides.

At the same time, I think the Israeli experience also demonstrates something slightly different: that the constitutional crisis preceding October 7 was not merely adjacent to the security failure but partly constitutive of it. The prolonged effort to overhaul the judiciary deeply weakened social cohesion, military readiness, reserve mobilization, and public trust in state institutions. The government’s confrontation with the judiciary and other gatekeeping institutions produced an extraordinary degree of internal fragmentation precisely on the eve of a national security catastrophe. Thus, in the Israeli context, the relationship between constitutional erosion and emergency governance is not only theoretical; many Israelis increasingly see the two as directly connected, even if political actors contest that interpretation and seek to separate responsibility for the constitutional crisis from responsibility for the failures surrounding October 7.

More broadly, the continuing state of emergency also creates its own constitutional dynamic. Prolonged wartime conditions tend to narrow political space, weaken public opposition, and expand the practical scope of executive discretion. This is, of course, a familiar phenomenon in comparative constitutional history, but it has become particularly salient in Israel over the past year and a half.

Your comparison to current debates in the United States is also very illuminating. I agree that constitutional structures often become newly attractive, or newly threatening, depending on who exercises power. Federalism, bureaucratic autonomy, judicial review, even administrative “inefficiency” can suddenly appear either as democratic obstacles or democratic safeguards depending on political circumstances. Recent American experience, especially President Trump’s first administration, has vividly illustrated how institutional friction that may appear dysfunctional in ordinary times can nonetheless serve as an important barrier against potentially dangerous concentrations of power. That dynamic has become very visible in Israel as well.

Your point about internal separation of powers through the civil service is also an important one. I think this is a dimension that is often underappreciated in Israeli discussions of the overhaul. Because Israel lacks many external checks common in other democracies, the professional bureaucracy and government legal advisors historically served as important stabilizing institutions. Much of the current reform effort, in my view, targets precisely those internal constraints.

At the same time, the Israeli case also complicates the optimistic account of bureaucratic insulation. After many years in power — and especially under the growing influence of Religious Zionist factions within the governing coalition — parts of the civil service, law enforcement apparatus, and related institutions have undergone increasing politicization through appointment practices emphasizing ideological loyalty. So, while I fully agree that a strong professional bureaucracy can function as an important internal check, there is now a growing concern in Israel that portions of the bureaucracy itself may no longer be perceived as fully insulated from partisan pressures. That creates a particularly troubling scenario because institutional erosion may persist even after electoral turnover, making democratic recovery far more difficult and prolonged.

Your work on the relationship between presidential unilateralism and bureaucratic capacity therefore resonates strongly with the Israeli context.

And thank you as well for the references. I knew the Vermeule piece and find it valuable precisely because it takes seriously the governance side of the equation rather than assuming that more constraints are always normatively preferable. I was less familiar with the second piece and am looking forward to reading it carefully.

More broadly, I think your comments reinforce something I continue to struggle with intellectually: how to distinguish between constitutional reforms that are genuinely structural and enduring, and reforms whose shape and timing are inseparable from a particular political crisis and governing coalition. That distinction is easy to state in theory and extremely difficult to apply in practice.

Thank you both, Jon and Steve, for the excellent conversation and for engaging with the presentation so seriously and generously. I learned a great deal from the exchange and look forward to continuing this conversation.

Warmly,

Issi