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Supreme Court’s power waxing as judicial reform falters

Judicial reform has not gone the way the government hoped, with the Supreme Court taking the opportunity to secure even more power, observers tell JNS.

Chief Justice of Israel's Supreme Court Esther Hayut at the hearing of the government's "reasonableness" law, at the Supreme Court in Jerusalem, Sept. 12, 2023. Photo by Yonatan Sindel/Flash90.
Chief Justice of Israel's Supreme Court Esther Hayut at the hearing of the government's "reasonableness" law, at the Supreme Court in Jerusalem, Sept. 12, 2023. Photo by Yonatan Sindel/Flash90.
David Isaac
David Isaac

The Israeli High Court’s marathon, 13.5-hour hearing on judicial reform two weeks ago underscored that the court has set its sights on Israel’s Basic Laws, until now treated as inviolable by the court itself, observers told JNS.

Israel’s Basic Laws have quasi-constitutional status, and serve as the source of the Supreme Court’s ability to strike down legislation. The Israeli government, while eager to trim the court’s sails, accepts this position.

In its response to the court’s review of a recently passed amendment to Basic Law: The Judiciary restricting the court’s ability to strike down legislation based on whether the court finds the legislation “reasonable,” the government stated:

“This esteemed Court is prohibited from granting relief concerning the validity of a Basic Law or an amendment to a Basic Law…judicial review of constitutional amendments does not exist in any lawful Western country without explicit authorization in the constitution itself.”

In other words, that Basic Laws aren’t open to court interference, just as the U.S. Supreme Court can’t strike down parts of the U.S. Constitution.

However, the court no longer agrees. Supreme Court President Esther Hayut signaled during the hearing that it’s not a matter of if but when the court can strike down Basic Laws.

“We can’t nullify basic laws every other day,” she said. To justify such a move “there needs to be a mortal blow to the basic tenets of the state as a democratic state,” she continued.

According to Avi Bell, a law professor at the University of San Diego and Bar-Ilan University, the mere fact of the hearing means that the court has gained power.

“It’s rather obvious that at this point the court is stronger,” said Bell. “Simply by holding the hearing the court has opened the door to overturning amendments to Basic Laws,” he continued.

While the court has held hearings dealing with Basic Laws in the past, the Sept. 12 hearing was the first time it appeared to be serious about reversing one.

“Whether it takes the final step of striking down the law or not, the court has already jumped into the game,” he said. “It would not have dared do this but for the insanity of the anti-reform movement.”

Judicial reform, he said, “isn’t the problem, it’s a possible solution. And to the degree that the solution fails, we have an enormous challenge dealing with law institutions that are above the law and are all-powerful.”

Ran Baratz, former head of public diplomacy in the Prime Minister’s Office and founder of MIDA, a conservative online magazine, agrees that the court was winning the current round.

Writing in the Hebrew weekly Makor Rishon on Sept. 12, he said, “the court in the coming month is going to do away—in a completely illegal way—with any limitation still left on it, even if only in appearance. The next citizenship text the Education Ministry approves should be titled: ‘From Citizens to Subjects.’”

He told JNS: “Every political nomination, all political action, all governmental action, everything is subject to judicial review. It’s ridiculous because they overtake governmental parliamentary powers. There are no longer three powers anymore. There’s just one judicial power.”

According to Baratz, in advancing its judicial reform initiative, the government believed it was operating from a position of strength, given its 64-seat Knesset majority. It believed it had an opportunity to reduce the court to its proper dimensions, which have expanded since a “constitutional revolution” set in motion in the 1990s by then-Supreme Court President Aharon Barak.

But it was the court that had the advantage, having taken power over a years-long process, he said, adding, “By power, I mean authority.”

The government, in cases before the court, focused on concrete things, “like what do we do with illegal immigrants,” and while the court issued verdicts in those cases, they were secondary to the main goal, which was acquiring more authority, Baratz explained. “The Supreme Court kept saying in those concrete cases, ‘Even if we don’t strike down a specific law, we have the authority to do so.’ Authority is what the court has always been fighting about, but the government didn’t realize it. And that is why it has been losing for 30 years.”

He added: “The only good thing now is that finally people, politicians and the public, are starting to realize where the real fight is.”

The government deserves its share of criticism, he said, singling out leaders of the reform plan, Justice Minister Yariv Levin and Constitution, Law and Justice Committee chairman Simcha Rothman, for having acted in a high-handed manner. “I hope that they’ve learned their lesson and the next time we face this kind of moment, they will be much more moderate, and the public will be much better informed,” he said.

What worries Baratz now is not the court, but the “very real threat” to Israeli democracy. “It’s no longer a constitutional moment. It’s become a revolutionary moment, in which a certain sector of the public believes that they are empowered in an undemocratic way to take decisions on behalf of the entire population without their consent,” he said.

Civil servants have declared they won’t heed the government, said Baratz, insinuating that if the court decides Netanyahu is unfit to serve, they will follow the court’s decision and “betray democracy and the electoral process…This is why I call it a revolution, not a constitutional moment. This is how you topple regimes in history.”

He said anti-reformists have demolished the idea of the common good. “They’re saying, ‘if we’re not in power, Israel will suffer.’ It’s spilled into other areas. Now they protest against Netanyahu in New York. We are in a position that we’ve never been in before. It’s not a pretty sight.”

Bell agreed that the anti-reform movement behaves as if “everything is permitted” to bring down the government’s reform plan, even if that means damaging institutions like the army and the Knesset. “It doesn’t occur to them that they’re also harming the court by backing up its exercise of unlimited power. A court that has unreviewable power over everything is ultimately destructive to itself as well,” said Bell.

However, Bell and Baratz disagreed on what the government’s next step should be, at least in the near-term. According to Bell, the government should keep pushing through as much of its reform legislation as possible. “It’s clear that without a sustained reform, this problem is just going to get worse,” he said.

Baratz, on the other hand, argued for dropping the reform in exchange for one thing—stopping the man slated to become the next Supreme Court president, Justice Isaac Amit. “It seems tactical but it’s strategic. It’s the most important thing to do,” said Baratz, noting that the current president, Esther Hayut, is retiring in a few weeks.

Describing Amit as among the most extreme members of the court, Baratz said, “He’s like nothing we’ve seen before—and we’ve seen things. It will be a complete disaster. He is the prototype of a smug, self-loving, arrogant, drunk-with-power Supreme Court justice.”

Amit is in line for the presidency because he has seniority, but another justice, Yosef Elron, has challenged the system and thrown his hat in the ring. According to Baratz, Elron is far more moderate than Amit. As the Supreme Court president wields substantial power and influence, “I would set down the entire reform in order to have an honest president. …Elron will probably shift the court towards a more traditional court role,” he said.

In defending his position that the government should abandon the reform plan, Baratz said that in the current situation the court will likely strike down whatever laws the Knesset passes anyway.

Long-term, Baratz remains optimistic. He sees the atmosphere cooling down and notes that most Israelis are moderate and would like to see a balance of the three branches of government.

Bell agreed, saying the current situation is unsustainable.

“You can’t forever have a clique of lawyers exercising power that they don’t have according to any law, and just have the population go along with it. That is just not going to happen forever,” he said.

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