Fierce government attacks on Supreme Court part of campaign of delegitimization

Recent weeks and months have seen senior cabinet ministers launch a series of vitriolic attacks on the Supreme Court and its judges over a string of decisions that have not gone the government’s way.

Finance Minister Bezalel Smotrich has said the government will “trample” Supreme Court President Isaac Amit. Justice Minister Yariv Levin has described the Supreme Court justices as “extremists” and their decisions as “political.” Diaspora Affairs Minister Amichai Chikli called the court a “circus” and the president “a clown” — examples from just the past four weeks.

And Levin, Chikli and Communications Minister Shlomo Karhi have publicly called on the government not to abide by specific court orders and decisions on several occasions.

Although the government has long railed against the Supreme Court — and indeed worked assiduously to pass legislation to weaken its authority — the recent verbal assaults have now reached levels of incendiary ferocity previously unheard of in Israeli discourse, which experts say appear to be a calculated assault on the legitimacy and power of the courts.

Delegitimization of institutions

Speaking to The Times of Israel, Yaniv Roznai, a professor of constitutional law at Reichman University, said that the inflammatory rhetoric against the court, and against Israel’s system of legal checks and balances in general, is designed to delegitimize these institutions to make them less effective as brakes on executive power.

He noted that the government had initially gone about trying to “capture” several of these institutions, but having initially failed in that mission, it is now seeking to delegitimize them.

These efforts included legislation — which narrowly failed to pass — that would have handed the government full control over all judicial appointments, Levin’s push to install his preferred candidate as Supreme Court president, and the government’s attempt to fire the attorney general.

“They have tried to capture institutions, and when that fails they weaken and delegitimize that institution so that it is no longer effective as a check on government power,” said Roznai.

Indeed, the government and some cabinet ministers already appear to be disobeying some High Court’s orders amid the campaign to deprive it of its legitimacy.

On Monday, Attorney General Gali Baharav-Miara said the government was violating the High Court’s November 19 order that instructed it to draw up concrete policies for enforcing the military draft on ultra-Orthodox men within 45 days.

She said that the government had “not even taken the first step” to begin drawing up such policies and was therefore violating the court order, and doing severe damage to the very principle of judicial review and “creating a dangerous opening for the rule of unchecked power.”

And National Security Minister Itamar Gen Gvir has already been found by the High Court to have violated one of its interim orders instructing him not to give operational orders to the police regarding the policing of demonstrations.

The attorney general has more broadly asserted that Ben Gvir has unlawfully intervened in operational conduct of the police in almost every other aspect of its work, including specific arrests, promotions, dismissals of police officers, demolition orders and other matters.

And there are some key High Court orders and decisions for which the government is preparing the ground to disobey or ignore.

The High Court will hear on Thursday petitions asking the High Court to order the prime minister to remove Ben Gvir from office for violating the High Court orders barring him from issuing operational orders to the police, as well as for violating the terms of a court ruling that allowed him to be appointed in the first place.

The court will ultimately have to decide whether or not to order Prime Minister Benjamin Netanyahu to dismiss Ben Gvir from office.

On Tuesday, senior coalition leaders — including Smotrich, Foreign Minister Gideon Sa’ar and Ben Gvir himself  — wrote a letter to Netanyahu claiming that the High Court had no legal authority to order Ben Gvir to be removed from office for violating court orders, and said that “we will not allow it.”

Targeted attacks on the Supreme Court president

A key feature of the recent attacks on the Supreme Court has been the specific targeting of Amit, the chief justice, who has been singled out for particular opprobrium by the government, not to mention Levin’s boycott.

This includes Smotrich’s attack on him as a “violent, aggressive megalomaniac who has stolen Israeli democracy”; deputy minister Almog Cohen’s remarks that Amit “appointed himself” Supreme Court president and “turned the High Court into a political tool that serves the dying elites”; and Chikli’s comments about Amit being “a clown.”

Amir Fuchs, a senior researcher at the Israel Democracy Institute, said that the attacks on Amit were not only part of the broader effort to delegitimize the court, but were also designed to discredit the Supreme Court president as a way to justify the government’s refusal to establish a state commission of inquiry into the October 7 disaster.

Once the government authorizes the creation of such inquiries, it is the Supreme Court president who appoints its members, so the government has sought to delegitimize Amit in the eyes of the public as a fair-minded judge to vindicate its refusal to create a state commission of inquiry, said Fuchs.

There are also petitions before the court asking it to order the government to establish a state commission, and Justice David Mintz indicated in October last year that the court believes an independent, investigative body is needed to examine the October 7 failings.

So the attacks on Amit as head of the Supreme Court may also be designed, in part, to lay the groundwork for disobeying a court decision ordering the government to establish a state commission.

New lines of attack

In a further step to undermine the Supreme Court’s authority, the coalition is set to bring a motion to the agenda in the Knesset on Wednesday declaring that any court orders against legislative amendments to quasi-constitutional Basic Laws are void.

The motion targets petitions currently before the High Court and calls on it to annul the government’s flagship judicial overhaul legislation, which greatly increases political influence over the appointment of judges.

The law is the centerpiece, so far, of Levin’s judicial overhaul agenda and will enable him, and the opposition, to handpick judges for the High Court.

Although the motion would not have the force of law, it would symbolically pit the Knesset, as the elected representatives of the people, against the court in a further effort to undermine the court’s authority.

Roznai said that the recent furious verbal assaults by coalition Knesset committee chairmen on legal advisers to their committees, as well as the recent phenomenon of verbal outbursts in courtrooms against judges and the legal system during key hearings, are yet another method of undermining the status and public standing of the judiciary.

“The government has sought to delegitimize the High Court for years; it wants to justify its legislation taking power away from the court, and its [new] ability to appoint judges,” said Fuchs.

“To do this, they need to show how the court is the ‘enemy of people.’”

Checking the brakes

Roznai insisted that the fierce rhetorical attacks on the Supreme Court are a calculated part of the government’s renewed broad assault on the checks on executive power that exist in Israel’s system of government.

He cited legislation being advanced that would remove all effective authority from the attorney general role as a key component of the renewed judicial overhaul drive designed to weaken legal restraints on government power.

“The goal is to have a yes-man lawyer to allow the government to do anything it wants, and this is against the background of our very slim system of checks and balances, which is basically just the court and the attorney general,” said Roznai.

“We still have a strong Supreme Court, a strong attorney general and a strong civil society, but all the government’s moves are designed to weaken and undermine these lonely islands of the rule of law and democracy which can still check political power.”