Critics say High Court overstepped on judicial reform, government will respond

The Supreme Court hears petitions, Sept. 28, 2023. Photo by Chaim Goldberg/Flash90.

by David Isaac

(JNS) — Israel’s Supreme Court, by a one-vote margin, including two from justices who had effectively retired, on Jan. 1 overturned a Basic Law for the first time in the state’s history.

Hebrew media has already coined the 8-7 vote Israel’s “second constitutional revolution.” But critics of the ruling say judicial reform isn’t dead and the government will have the final say.

The first constitutional revolution took place shortly after the passage of two Basic Laws in 1992. Then-Supreme Court President Aharon Barak declared them equivalent to a constitution in a 1995 ruling, Bank Mizrahi v. Migdal Cooperative Village, providing the court a mandate for overruling the Knesset.

It was the first time a court had declared a constitution unbeknownst to a country’s parliament or people. It had sprung fully formed, like Athena from the head of Zeus, one observer said at the time.

The 1995 decision came a few days after the assassination of then-Prime Minister Yitzhak Rabin, when the country was in shock and mourning.

Judge Haran Fainstein, a retired Israeli judge who teaches at Bar-Ilan University’s Department of Criminology, told JNS that it’s no coincidence that the Jan. 1 decision also took place during a time when the country was distracted.

“It’s not accidental. It’s part of a chain,” Fainstein said. “And the decision isn’t judicial, it’s political. It’s to show that the supreme power in Israel is the court and not the Knesset, which is, of course, contrary to Israeli law.”

Most critics have focused on the timing of the decision.

“Israelis from across political, ideological and religious divides are united like never before. Our families are grieving together, our sons and daughters are fighting for Israel together, and even most politicians have put their differences aside,” said Professor Moshe Koppel, chairman of the Kohelet Policy Forum, which had an important hand in reform legislation. “It is unfortunate that the Supreme Court chose Israel’s moment of unity to bring back division.”

Justice Minister Yariv Levin, who spearheaded reform, said “the decision of the Supreme Court judges to publish the verdict during a war is the opposite of the spirit of unity required during these days for the success of our fighters on the front.”

Simcha Rothman, chairman of the Knesset Constitution, Law and Justice Committee, speaking in an interview with JNS on Jan. 2, agreed, “I think even those who support the ruling will tell you that it’s a shame that this decision, which is divisive, came during wartime. The court could have waited for other opportunities.”

Critics say the court was less concerned with societal considerations than with squeezing in a ruling before a mid-January deadline when retiring Justices Esther Hayut and Anat Baron could no longer weigh in. While the justices officially retired in mid-October, they had a three-month grace period to pass rulings.

The 8-7 decision struck down the “reasonableness law,” an amendment to a Basic Law passed by the legislature in July. Given that the court has repeatedly said that Basic Laws are constitutional in nature with a special status different from other laws, the reversal creates an internal contradiction: If the court derives its power to overturn regular laws from Basic Laws, then how can it reverse Basic Laws, too? What gives it the power to overturn Basic Laws?

Fainstain says nothing, except the court’s own say-so.

The court never had a right to overturn any laws, he said. “There is no law in Israel which enables the Supreme Court to cancel a Basic Law, or any law whatsoever.”

Since the 1995 Bank Mizrahi ruling, the court has overturned 22 laws, though even those supporting the court’s power of judicial review, such as the Israel Democracy Institute, concede that the impact goes far beyond those specific pieces of legislation.

“Significantly, the impact of the Court’s constitutional jurisprudence far exceeded the 22 laws or provisions that were struck down,” wrote Professors Amichai Cohen and Yuval Shany on the think tank’s website in February 2023.

“The question of whether or not new legislation would survive scrutiny by the Court has become a dominant consideration in the legislative process, and government and Knesset legal advisers who could predict the Court’s position (and might have to ultimately defend challenges to the constitutionality of new legislation before the Court) obtained considerable influence over the legislative process,” they wrote.

“Israeli democracy is no longer a democracy after the unprecedented coup d’état carried out by the Supreme Court this week,” Ran Baratz, former head of public diplomacy in the Prime Minister’s Office and founder of MIDA, a conservative online magazine, told JNS.

The court has acted in a manner the left always accuses the right of acting, Baratz said, referring to the major theme of the anti-reform protests that judicial reform heralded “the end of democracy.”

Few would dispute that Israel’s right wing suffered a heavy political blow from the court’s decision. The Likud and its satellite parties considered the effort to rein in the court’s judicial activism a top priority.

After months of large, unprecedented weekly protests by the opposition, which largely derailed the government’s reform program, the court’s decision feels like the nail in the coffin.

Right-wing commentators have sought consolation in the hope that the court has gone too far.

Israel Hayom commentator Mati Tuchfeld wrote that while the leaders of reform “will be forced to raise their hands in surrender this round,” perhaps they can find comfort in knowing that “even those who welcome the ruling itself most likely harbor a fear in their hearts about the excess of authority” held by the judges.

Those hopes don’t appear borne out as opposition politicians have praised the court’s decision.

Of the future, Baratz said, “I have no idea. This is a complete coup. The left is reckless and anti-democratic and there is no way it will cooperate with the right in restoring democracy. So I am not very optimistic.”

Fainstein is more positive. Though nothing will happen before war’s end, he says the government should focus on appointing conservative judges, noting that along with Hayut and Brown, two more Supreme Court justices are soon to retire at the mandatory age of 70.

First, the government will have to overturn the judicial selection process (currently controlled by judges themselves), Fainstein said, admitting that the Supreme Court could reverse those changes, too. Things will go back and forth but eventually, he believes, it will be the court that breaks “and realizes it has exceeded its jurisdiction.”

Judicial reform is “absolutely” not dead, he said.

The government hasn’t given up, Rothman agreed, telling JNS that after the war, “It’s understood that we will re-legislate. There was an understanding of the need to reform the judicial system before the war and even more so now. Especially after October 7, there is wide acceptance. There is a need for a change, it was always the case and it’s even more undebatable now.”