Netanyahu’s Challenge to Court Power Faces Judges’ Scrutiny

Ethan Bronner
·5 min read
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(Bloomberg) -- In nearly 12 hours of argument broadcast live across the country, Israel’s top judges sparred with government lawyers on a controversial law passed by Prime Minister Benjamin Netanyahu’s right-wing coalition limiting the court’s power.

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The case — brought by opposition lawmakers and watchdog groups — is one of the most momentous in the nation’s history and, for the first time, all 15 Supreme Court justices took part on Tuesday. A ruling isn’t expected for weeks but their questioning implied that they believe overturning the law, while a big step, is within their power.

The law, passed in July as the opposition walked out in protest, bars judges from voiding government policies or decisions they deem “unreasonable.”

“We are talking about the reasonableness clause, which has been with us for decades,” Supreme Court President Esther Hayut told the government’s advocate, Ilan Bombach, her voice rising in frustration. “You’re blocking all courts from coming to the aid of litigants who are asking us to intervene with this clause. You are saying the courts can’t even discuss this. There are thousands of detailed decisions by ministers that affect the daily life of citizens.”

Later, when addressing a lawyer arguing against the change, Hayut said, “We can’t cancel basic laws every Monday and Thursday. It has to be a mortal blow to the essential elements of democracy.”

This is the first of a number of judicial changes the government promised when it took office in late December, a populist overhaul that has split the nation, driven millions into the street, sparked criticism from the White House and battered markets.

The shekel is trading near a six-year low. It’s down 8% against the dollar this year, one of the worst performances among a basket of 31 major currencies tracked by Bloomberg.

Israel’s high-tech economy, which has galloped ahead over the past quarter century irrespective of internal politics, is now seen as tied to how this battle over the judiciary gets resolved. Ratings agencies and investors are watching closely.

Tuesday’s argument was held in the context of the broader package of planned changes. These include how judges are chosen and whether legal advisers in ministries should retain their power to prevent officials from taking action the advisers deem unconstitutional.

Stung by all the opposition, Netanyahu says he wants to compromise on those further steps and concentrate on geopolitical challenges. The opposition has reacted with skepticism, partly because Netanyahu is facing fraud charges and they believe that, as a result, he wants to rein in the judiciary.

Much of Israel’s legal establishment is unhappy with the new law. Attorney General Gali Baharav Miara said she couldn’t defend it, so Bombach was hired to argue the case. Some of the arguments made on Tuesday were that it was passed hastily and violates the separation between the executive and the judiciary.

Reasonableness is a broad — critics say blunt — instrument that the court has used to block cronyism, protect human rights and encourage what it says is rational decision-making. It has other tools but this is seen as the most significant.

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The government’s advocates said in court that the doctrine has no guardrails.

Deep Questions

While the oral arguments were framed through technicalities, they are proxies for a deep set of disputes within the country. These include how a state that defines itself as Jewish manifests that identity and what its obligations are to non-Jews.

Such tensions have long existed. But as the nation’s politics have become religious and nationalistic, all while the legal establishment has remained more liberal, they’ve intensified. The court’s protection of human and minority rights frustrates those on the right who think their votes should enable a shift in policy.

Israel has no constitution and no law defining judicial reviews. It has a set of “basic laws” that, increasingly over the past three decades, the high court has relied upon to measure constitutionality.

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Since the justices have never overturned a basic law, the Netanyahu government’s reasonableness law was passed as an amendment to a basic law in the hope of preventing them from invalidating it.

In court on Tuesday, Simcha Rothman, who chairs the parliamentary committee overseeing the legislation, told the justices that they have no right to overturn the law passed by elected representatives, saying “a privileged elite will not be able to protect rights in the long term.”

Justice Anat Baron asked him what tools still exist to overturn an extreme piece of legislation.

“We can be replaced via the ballot box,” he replied.

Justice Isaac Amit said at a different point, “Democracy doesn’t die with a few strong blows. Democracy dies with a series of small steps.”

Court’s Options

The justices may send the law back to the Knesset for changes, they may accept it, or they may, in fact, rule it unconstitutional.

That last option would lead to “chaos,” the government declared.

It’s not clear if the coalition would accept such a ruling or what key institutions like the police and army would do if forced to choose between the court and the cabinet.

In recent weeks, there were a number of failed attempts to strike a political compromise. In theory, if such a deal were reached that included a change to this law, the court might choose not to rule.

Hayut, who’s perceived as a liberal, decided to assign all her colleagues to hear the case to avoid accusations of politicization and include all perspectives. Several of her colleagues are conservative and a unified court would send a strong message.

Hayut is due to retire next month along with another liberal justice, creating opportunities for the government to shift the court’s ideological makeup if it can alter the way judges are chosen, as it says it wishes to do.

In coming weeks, the court will hear two related cases. One is on whether a prime minister can be removed from office for being “unsuitable.” The second is about whether the justice minister and architect of the judicial overhaul, Yariv Levin, can continue keeping the judge-selection committee in recess as long as its makeup displeases him.

--With assistance from Marissa Newman and Alisa Odenheimer.

(Updates throughout with details from court proceedings)

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