Outgoing Supreme Court president Esther Hayut is playing the short game. She wants to clear her desk, finish the work she set out to achieve when she took over as Supreme Court head in late 2017 and let the chips fall where they may.
Shortly before Hayut assumed office, she set out her judicial vision in an address before the Bar Association. The central challenge facing the court, she declared, was surmounting the rule of law.
Comparing herself and her colleagues to God, she bloviated: “There’s a disadvantage that we flesh and blood judges have in comparison to the Creator of the Universe. Even in the situations where we understand fairly quickly the dilemma that brought the petitioners before us, it often happens that the solution we view as just and proper isn’t possible under the practice and requirements of law. These situations in my view are among the most difficult and complex ones that we as judges are called upon to contend with.
“How do we bridge the gap between the law and what is right? Finding an answer to this question, discovering the secret … ‘spice’ is perhaps one of the greatest tasks that lies before us as judges.”
Now with a mere two months remaining to her tenure, Hayut is finishing the job. She’s found the “secret spice.” All a judge needs to rule the way he wants is to place himself above the Knesset, the laws it passes and the government that is charged with executing them. She began the process two years ago and is completing it now.
Israel is a parliamentary democracy. Legally and constitutionally, this means that the Knesset is the sovereign. The government is the executive arm of the Knesset. The Knesset can oust the government any time a majority of Knesset members lose confidence in it. The Supreme Court interprets the Knesset’s laws.
The source of the Supreme Court’s power is the corpus of Basic Laws passed by the Knesset. Since they are the source of its power, the court has no legal power to amend or abrogate these laws.
This, however, is no obstacle for Israel’s godlike Supreme Court justices, who have that “special spice.”
Two years ago, Hayut began laying the markers for the actions she intended to take before her retirement. In two separate judgments, she and her associates agreed to adjudicate petitions calling for the abrogation of Basic Laws and asserted their right to do so, based on an entirely made-up rationale. The justices proclaimed that they can abrogate Basic Laws if they decide the Knesset “abused its foundational powers” in passing them.
This means that Hayut and her cronies have decided that they can annul Basic Laws if they don’t like what they say. Since the justices have the “special spice,” they know better than the public’s elected representatives what a proper law looks like. Or smells like.
In March 2020, Hayut and her comrades effectively made themselves super-legislators and asserted the power to interfere in the Knesset’s internal procedures. That month, Israeli voters had their third inconclusive election in less than a year. Benny Gantz and Yair Lapid, who led the Blue and White Party, lacked a 61-seat majority to form a coalition. But they came up with a novel idea. With the Arab anti-Israel bloc, they had a 61-seat majority in Knesset. Gantz and Lapid decided to compel interim Knesset Speaker Yuli Edelstein to call for new elections for the Knesset speaker. With their guy in place as Speaker, Gantz and Lapid would be able to run roughshod over Netanyahu’s interim government and rule the country from the Knesset.
The only problem with their plan was that they had no legal power to execute it. Under Basic Law: The Knesset, the Israeli parliament, through its speaker, develops its own procedures. Just as importantly, the Knesset speaker is only elected after a government is sworn in. By law, Edelstein was supposed to continue serving as interim speaker.
But a persnickety Basic Law was no match either for Blue and White or for Hayut. Blue and White petitioned the Court to order Edelstein to call a vote. In no time, Hayut and her colleagues did just that. When Edelstein refused—and chose to resign rather than defy the court’s illegal ruling—Hayut ordered the Knesset to convene within 24 hours and elect a new speaker.
As law professor Avi Bell from Bar-Ilan University law school explains, “The court’s decision to fire a Knesset speaker notwithstanding that there’s nothing in the law that allows them to do that, put us into a constitutional crisis. The ruling was the court’s declaration of war against the Knesset. The only reason things didn’t get worse is because Netanyahu and Gantz quickly came up with a way to avoid an open fight; they formed their joint government.”
Having seized the powers of the Knesset three years ago, on Thursday Hayut turned her guns (or spices) on the government. After Netanyahu returned to office, the left, including Attorney General Gali Baharav Miara, set out to find an excuse to oust him from power. They set upon the incapacitation clause of the Basic Law: The Government. Although the lawmakers who drafted the law reasonably viewed the clause as a means for governments to replace a premier who becomes physically incapable of performing his duties, the left began arguing Netanyahu was incapacitated because he had signed a conflict-of-interest document with Baharav Miara upon entering office due to the criminal proceedings being carried out against him.
Shortly after Justice Minister Yariv Levin announced his plan to place minimal limits on the court’s powers in January, a group of anarchists led by former Israel Defense Forces Chief of General Staff Dan Halutz petitioned the court to oust Netanyahu from office. Halutz largely disappeared from view after he was forced to resign his position at the helm of the IDF following his failed military leadership during the Second Lebanon War in 2006. He has returned to the main stage over the past seven months by calling for political violence and civil war. In his petition, Halutz called for the court to deem Netanyahu incapacitated. Baharav Miara signaled strongly that she sided with Halutz and the anarchists.
Understanding it was on the verge of a judicial coup, the Knesset coalition moved quickly to amend the incapacitation clause. The amendment, which was passed in April, stipulated that a prime minister can only be deemed incapacitated if he is physically unable to carry out the functions of the office. The left, this time through the State Department-funded Movement for Quality Government, petitioned the court to abrogate the amendment. Baharav Miara announced last week that she agrees with the petitioners.
Hayut and two associate justices convened the court on Aug. 3 to adjudicate the petition. As with the Edelstein petition, they have absolutely no legal authority to deliberate the issue. But they don’t care. Armed again with their insipid assertion that the Knesset may have “abused its foundational powers,” Hayut and her comrades insist that they have a right to abrogate the clause and so pave the way for a follow out hearing on the Halutz petition to oust Netanyahu from power.
Whether or not they rule in favor of the Movement for Quality Government and Baharav Miara, simply by adjudicating this petition, Hayut is asserting the court’s power to dictate the actions of the government and to oust the prime minister, at will.
This then brings us to Hayut’s planned coup de grace. On Sept. 15, just two weeks before she heads for the exit, Hayut will take the unprecedented step of convening the entire court—all 15 justices—to adjudicate an even more outrageous petition regarding a Basic Law. That day, Hayut and her associate justices will hear arguments regarding a petition asking them to overturn the Knesset’s amendment to the Basic Law: Judiciary from last month. That amendment bars the justices from abrogating lawful decisions by the government, prime minister and government ministers on the grounds of “reasonableness.” In other words, it limits the court’s power to set government policy based on the judges’ “special spice.”
Not only do the justices lack the legal authority to adjudicate this petition, they are in an open conflict of interest because the law relates to their own power. But that is the whole point.
By adjudicating the Edelstein and Incapacitation Clause petitions, Hayut cancelled the powers of Israel’s democratically elected institutions and seized them for the court. On Sept. 15, Hayut intends to end her judicial career by asserting that there can be no limits of any sort placed on the court’s powers.
As a short-term player, Hayut sees the game ending on Sept. 30. But, of course, on Oct. 1, Israel will be left to contend with the consequences of her actions. And those will be a disaster. Indeed, they already are. Hayut’s moves put Israel on the fast track to the civil war that Halutz and his comrades pine for.
Bell notes, “A parliament asserts its authority by passing laws. By annulling the Knesset’s power to enact laws, the court is destroying the last vestiges of Israel’s democratic institutions. How are democratic institutions supposed to assert their authority if it isn’t by passing laws? All that’s left is confrontation, by actually rejecting the authority of the court.”
Consider what happened in the United States before the Civil War. In 1857, the Supreme Court passed its Dred Scott decision. The decision determined that a slave would remain the property of his owner wherever he was. If he escaped to a free state, the court insisted that he was still a slave and that the free state was required to return the slave to his owner in the South. That decision meant that state legislators had no power to abolish slavery in the separate states. As states of the United States, they were required to be complicit with slavery.
Bell notes that “it took four years from the time the Dred Scott decision was delivered until the start of the Civil War. But the war became inevitable after Dred Scott.”
So, too, the moment the Supreme Court nullifies the Knesset’s power to limit its powers, it renders civil war in Israel inevitable.
Israeli Justice Minister Yariv Levin has been harshly criticized for his handling of the judicial reform process. But whether his package was perfect or the process was properly managed is really beside the point. Levin rightly viewed his judicial reform package as a race against time to protect Israel’s democratic institutions from the court. He may have been too slow.
In media interviews last week, Netanyahu noted that the court lacks the power to adjudicate these issues. He wouldn’t say whether he would follow their decisions. He insisted instead that the government will abide by the rule of law. On Thursday, it was reported that Netanyahu is considering the option of re-legislating the Basic Laws if the court strikes them down.
In the absence of any significant political or legal figure on the left coming to his senses and rejecting Hayut’s maniacal power grab, Netanyahu’s reported plan of simply keeping the government’s nose to the grindstone, and moving forward, may be Israel’s only hope of avoiding a disaster of biblical proportions.