Israeli politics were thrown into turmoil on Wednesday when Israel’s High Court of Justice ruled that Interior Minister Aryeh Deri, the leader of Shas, could not remain in his post after he’d become embroiled in a corruption scandal.
But the Wednesday in question wasn’t this past one. As fans of Israeli legal history will know, it was a Wednesday 29 years ago, on September 8, 1993.
The two rulings, this week’s and the one issued in 1993, bookend a three-decade clash over the powers of the High Court and its place in the Israeli system of government, a clash that Deri’s allies hope to bring to a clear conclusion in their favor.
The two trials are linked by the same individual, the same government post, the same overarching ethical issue. But they are also different in ways that help clarify why so many legal scholars, including outspoken critics of the High Court, are worried about the Netanyahu government’s new judicial overhaul.
The 1993 decision helped launch — and conservatives might add, justify — the campaign against the High Court’s expansive powers.
This week’s decision demonstrates that that campaign has become about far more than realigning the balance of powers between the branches of government.
The unraveling
On August 2, 1993, the Knesset received a copy of an indictment being prepared against then-interior minister Aryeh Deri.
No one was surprised. Deri was already under investigation in the summer of 1992 when soon-to-be prime minister Yitzhak Rabin was still negotiating his new government. The suspicions against Deri were serious: Misuse of his government position to commit crimes up to and including bribery. So in July 1992, Rabin asked for, and Deri provided, a written commitment to resign if he was indicted, and the new government made it public.
That commitment read: “If the Shas movement joins the government under your leadership, and if the Shas movement calls upon me to serve as a member in your government… I hereby notify you that if and as the indictment is filed in court, I will recuse myself from the government of my own free will.”
Rabin’s coalition was narrow — just 62 seats in the 120-seat Knesset. He could not afford to lose six-seat Shas, a conservative Haredi party that would nevertheless support Rabin’s signature policy plan, the Oslo peace process.
With Deri’s commitment, Rabin believed in mid-1992, the problem had been contained. All understood that Shas’s votes were assured, and generally believed that Shas might not flee the coalition even when Deri had to go face his legal troubles. And a line had been drawn: Rabin and Deri had agreed that an indicted minister would not serve in government.
Then it all began to unravel. In August 1993, after the indictment was filed with the Knesset to launch the process of rescinding Deri’s parliamentary immunity, Rabin’s attorney general, Yosef Harish, informed him that it would be “counter to the principles of law and government” for Deri to remain a minister. He demanded that Deri be fired “immediately,” before waiting for the indictment to be formally filed in court, and explained that any other decision would be “unreasonable.”
A stunned Rabin, desperate to preserve his coalition and his nascent peace initiative, resolved to fight to keep Deri in his government until the time he’d committed to.
An appeal by an NGO brought the question before the High Court of Justice. In Rabin’s written argument to the court, presented by Harish (Rabin was not allowed separate representation; more on this later), he made several arguments, which were not contested by either Harish or the High Court.
He pointed out that no stipulation in the Basic Law: The Government actually required him to fire Deri at that early stage. He argued, too, that to force a prime minister to fire a minister before an indictment had even been filed was a legal innovation; Menachem Begin wasn’t required to fire Religions Minister Aharon Abuhatzeira in 1980 even after he’d been indicted.
Perhaps the High Court’s first serious — and seriously controversial — deployment of the “reasonableness” test, one of the four powers of the court that Justice Minister Yariv Levin now wants to take away, was not directed at a right-wing government but at a left-wing one
The court disagreed. A five-justice panel ruled unanimously that Rabin must fire Deri immediately. As Chief Justice Meir Shamgar would write, “The crimes Minister Deri is alleged to have committed are of utmost seriousness, and failure to use the [prime minister’s] authority to remove him from his post amounts to extreme unreasonableness.”
It is a point missed by the present-day left-right war over the High Court. Perhaps its first serious — and seriously controversial — deployment of the “reasonableness” test, one of the four powers of the court that Justice Minister Yariv Levin now wants to take away, was not directed at a right-wing government but at a left-wing one.
The fallout from the decision might rightly be deemed historic. With Deri’s resignation, Shas abandoned the coalition, leaving it with just 56 seats, tenuously protected from collapse by five votes from Arab-majority parties that would not join Rabin’s coalition but would support it from the outside to ensure the Oslo process continued.
It was a moment that would cast a pall over the entire peace process, at least in right-wing memory. The highly symbolic Jewish majority for Oslo was lost with Shas’s departure.
Rabin’s government was saved in 1994 when a three-member faction called Yiud broke off from right-wing Tzomet to join the government. Yiud’s members, outspoken opponents of Oslo until that very moment, were transparently swayed by a desire for high government posts. Rabin appointed Yiud’s Gonen Segev minister of energy and Alex Goldfarb deputy minister of housing. Oslo, the right would complain, was “purchased with a [ministerial] Mitsubishi.”
(It didn’t help that Segev would turn out to be among the least savory characters ever to grace the Knesset’s halls. In the years since, he’s been convicted of ecstasy smuggling, credit card fraud, and forgery, and is now serving an 11-year prison sentence for spying for Iran.)
A bridge too far?
Much of Levin’s present-day reform is only really understandable in light of the 1993 Deri decision. It’s all there.
For many observers at the time, including on the left, the court’s claim that Rabin’s hesitancy in firing Deri amounted to “extreme unreasonableness” was hard to swallow.
The question the High Court had to answer in 1993 was not whether it was appropriate for an indicted minister to serve in government. No one, not even Deri himself, argued that it was. The question was the timing — whether the prime minister could wait to fire Deri until a formal indictment was filed with the court.
The letter of the law was on Rabin’s side, as Attorney General Harish and the opinion of Justice Aharon Barak both made clear.
Also, the traditional reasons for judicial intervention did not exist: No rights were colliding or at stake, no clear law was being trampled, Rabin was not suspected of ulterior motives or failure to consider all aspects of his decision. He had weighed his decision carefully, the judges wrote, balancing the needs of the government, of public welfare, and of the public’s trust in state institutions.
But, they ruled, he’d then made the wrong call, prioritizing his government’s survival and his peace initiative over the need to ensure public trust in state bodies by firing Deri sooner than the written law required. The “extreme unreasonableness” finding was based on the judges’ expectation that Rabin’s decision “will have extreme ramifications for the character of government in Israel, its good faith and decency.”
The attorney general
The decision went further. One of the key questions raised by the Deri case (and the linked case of Deputy Religions Minister Raphael Pinchasi, also of Shas, whose ruling was released on the same day) was what happened when a prime minister and an attorney general disagreed.
In the case of Deri and Pinchasi’s firing, Rabin and his attorney general were at odds, which made it difficult for the attorney general, whose Hebrew title is “legal adviser to the government,” to represent Rabin’s view before the court. More to the point, Harish refused to do so.
What was to be done? How should the government’s opinion be represented when the attorney general, its official legal counsel, publicly disagrees with it?
Justice Barak took up the question in his opinion and explained that it was the wrong question. The real question, he wrote, was whether the government had a right to act contrary to the attorney general’s opinion in the first place. And the answer, he concluded, was no.
So it was that Harish would go before the court to argue his own view, not Rabin’s. He would only agree to present a written submission from the prime minister which he did not defend.
Since September 8, 1993, the governments of Israel have needed to ask the permission of the attorney general merely to present their case before the High Court.
The liberal case against the court
One doesn’t need to wait 29 years nor turn to conservatives like Levin to encounter the blowback to the Deri ruling, or, indeed, to grasp why conservatives today believe Levin’s proposals are not a dismantling of the judiciary but a corrective.
The day after the ruling, the left-wing legal scholar Ruth Gavison, a former founder of the Association of Civil Rights in Israel and former Knesset candidate for a party that would become part of progressive Meretz, published a scathing critique of the decision in the Hadashot newspaper.
The court had misused its powers of judicial review, she accused, calling it part of a trend of “turning all political-governmental decisions into legal matters” which could be “weighed by the standards of reasonableness.” It marked “the continued abandonment” of the distinction between “legal questions that should be adjudicated by the court” and questions that should be answered in the political system.
The refusal to allow Rabin representation mystified her. “What happened to the right to representation? To the principles of due process?”
Gavison would become a vocal critic of the expansion of the court’s review powers led in the ensuing years by soon-to-be chief justice Barak which was already clearly articulated in the Deri decision. And Barak would respond by publicly thwarting attempts to appoint her to the court.
“She’s a candidate not because she’s talented but because she has an agenda,” Barak declared in public comments at a conference in 2005 after then-justice minister Tzipi Livni put Gavison’s name forward. “That agenda doesn’t fit and isn’t appropriate for the Supreme Court.”
Barak’s opposition was enough to torpedo Gavison’s appointment, as the Supreme Court’s three-seat presence on the Judicial Selection Committee gave it a veto over appointments to the bench.
The conservative case against Deri
It’s all there: The use of “reasonableness” as a test of a prime minister’s political or policy judgment rather than his obedience to the law; the empowering of the attorney general to the point of denying the executive branch the right to represent its own views before the court in cases brought against it; the vetoing of a respected legal scholar’s appointment to the court because she’d criticized these changes as judicial overreach — all these form the heart of Levin’s proposals. The 1993 Deri case is Exhibit A in his bill of indictment of the judiciary.
Aryeh Deri’s corruption trial three decades ago helped launch the great debate about the Israeli judiciary that brought Israeli politics to its current moment. It explains the rationale and the bitterness among conservatives over the court’s present powers.
But Aryeh Deri’s current corruption troubles, as detailed in this week’s ruling, reveal the exact opposite: The extent to which the right’s war on the court has turned into something else.
The current decision does not, in fact, hark back to the old one, at least not directly or in the opinions of all 11 justices who issued this Wednesday’s ruling.
In the years since Aharon Barak’s retirement in 2006, and especially during Ayelet Shaked’s term as justice minister from 2015 to 2019, political pressure and public criticism have helped crack open a window for the appointment of a slew of more conservative justices to the court.
That new conservative element is evident in Wednesday’s 11-justice decision. Some liberal justices still made appeals to old arguments about reasonableness, but more conservative justices reached the same conclusion about Deri in very different ways — ways that reveal why Levin’s proposals go so far.
Justice Yael Willner, religiously observant and active in right-wing politics in her youth, is not cut from the Barak-ian cloth. That’s reflected in her opinion. Her ruling against Deri was made, she wrote, “despite the restraint and the strict criteria that must be applied to judicial review in this domain.” Even as she sided with his disqualification, she took pains to note the reasons to avoid doing so: “The broad discretion given to the prime minister in such decisions; the confidence expressed by the Knesset in the current government; and the fact that hundreds of thousands of citizens voted for the Shas party led by Deri.”
Those same reasons loom large over the opinions of justices David Mintz and Alex Stein, both conservatives appointed during Shaked’s term, who eschewed activist interpretations in favor of a simpler argument: Deri had disqualified himself by his own hand.
During Deri’s tax fraud trial last year, noted Mintz, the Shas leader “lied in a way that influenced the results of that process.” In a bid to avoid a ruling that would have pushed him out of politics, he promised the Jerusalem Magistrate’s Court that he would leave politics of his own volition. The court accepted that promise and lessened his sentence.
Stein cited Deri’s commitment, which echoes his note to Rabin in 1992: “Deri, former member of Knesset and former minister, is retiring from politics and turning to public work outside the Knesset and government.”
Noting that commitment, Stein summoned the estoppel doctrine, according to which a litigant cannot make one argument to win a litigation and then in a later litigation make a contradictory argument. Or in simpler, less precise terms: Deri lied to the judiciary about his intentions and hoped to now no longer be bound by that lie.
“The doctrine of judicial estoppel comes to protect the judicial system as a system founded on integrity,” Stein decreed. It was the High Court’s place to ensure Deri carries out his commitment to the lower court.
Override
These conservative rulings against Deri put the government in a bind. While lawmakers from Shas, Likud and throughout the coalition have turned Wednesday’s ruling into the right’s latest cri de coeur, the ruling itself cuts much of the wind out of their sails.
There’s no judicial overreach in a court taking a dim view of a defendant lying to another court… This time around the court is being conservative and the political class is expressing anger at being held to the most basic standards of law
There’s no judicial overreach in a court taking a dim view of a defendant lying to another court. There’s no conservative principle or judicial theory at play that can be made the latest banner in this old crusade. This is not 1993, where a case over a short-lived delay in firing Deri became the catalyst for a judicial revolution (and then counter-revolution). This time around the court (or at least part of it) is being conservative and the political class is expressing anger at being held to the most basic standards of law.
If the latest case sheds any light on Levin’s reform, then, it is a bad light. Levin’s reform does far more than any criticism of the 1993 decision would justify — but seems a perfect fit for a coalition that seeks to solve Deri’s very different problem in 2023.
Levin proposes to give the coalition — not the Knesset as a whole, which includes opposition elements, but just the ruling coalition — an outright majority in the judicial selection committee. Ostensibly to prevent a recurrence of the situation under Barak, when the Supreme Court had a veto on its own appointments, Levin proposes to allow the government to staff the court at its pleasure.
Is he trying, as he claims, to ensure future Ruth Gavisons can be appointed, or to allow a government to simply stack the court in its favor so it can get its way?
Levin proposes to remove “reasonableness” altogether as a tool of judicial review — not merely when it’s used inappropriately as a replacement for a political leader’s best judgment, nor even to limit its use in those specific areas where it was abused, such as the prime minister’s power to appoint ministers. No, Levin’s proposal would cancel the judges’ power to apply reasonableness altogether.
Why does that matter? Because reasonableness encompasses far more than what it was used for in Deri’s case. It is an ancient part of English-speaking jurisprudence. The American constitution, for example, limits law enforcement to “reasonable search and seizure” in investigating a crime and grants American courts the power to decide whether a search is reasonable.
In his rush to strip the court of its ability to overstep into the political realm, as even many left-wing scholars believe happened under Barak, Levin’s proposal stands to wipe out the most fundamental role of the judiciary
If reasonableness is canceled, what recourse would Israeli protesters have if a police commander, or a politician in charge of the police, refuses to issue a permit for their protest? Or when the state invokes eminent domain to seize private property to make way for infrastructure projects? Or any of a thousand ways that the executive curtails individual rights every day. Centuries of custom and law have tasked a nation’s judges with enforcing individual rights by weighing such government actions in the balance — with ensuring, in other words, that a government’s sometimes unavoidable abridgments of individual rights remain in the realm of the “reasonable” and do not become tyrannical.
In his rush to strip the court of its ability to overstep into the political realm, as even many left-wing scholars believe happened under Barak, Levin’s proposal stands to wipe out the most fundamental role of the judiciary.
(There are other tests, conservatives will respond, such as proportionality, that might be used to rein in state authority in some of these cases. But if the government decides that these, too, are being overused, will they also be canceled? Under Levin’s proposed regime, there doesn’t seem to be anything that could stop it from doing so.)
And then there’s the override, the proposal that a 61-seat Knesset majority can pass a law previously deemed unconstitutional by the court; or the requirement that a massive majority of justices must agree in order to strike down a law in the first place; and so on.
Countless detailed analyses have been written about Levin’s proposals by both detractors and supporters. The point here is not to delineate each proposal, but to look at the whole set against the stark differences between the new Deri ruling and the old one that bookend the larger debate — or in other words, to contrast the legitimate arguments against Aharon Barak’s theory of the judiciary and the actual tools Levin wants to strip away from that judiciary.
To expect the best of people in power is to hold an unreasonably optimistic — and decidedly not conservative — view of human nature
Deri’s present predicament cannot be resolved by mere judicial restraint, as justices Willner, Mintz and Stein make plain. But it might just be resolved in Deri’s favor by Levin’s overhaul of the judiciary. If Levin’s plan passes in its current form, Deri’s appointment could no longer be deemed unreasonable by any court; any laws barring his appointment could be changed in the span of a week; and justices who insist on clinging to estoppel-style legal principles can be steadily replaced as the court is filled with judges hand-picked to give the government a freer hand.
Levin’s many supporters believe he is acting in good faith and that no Israeli government would act in the draconian ways described above. Why, then, clear a path for them to do so? To expect the best of people in power is to hold an unreasonably optimistic — and decidedly unconservative — view of human nature.
The kind of judiciary now being proposed wouldn’t just reverse Aharon Barak’s activism; even conservatives like Willner, Mintz and Stein would scarcely find a place there.
Powerful courts — America’s for example — are generally reined in by granting the elected branches of government greater power to appoint judges (in the US, by a compromise between president and Senate). Weaker courts, such as Britain’s, which has almost no power to strike down legislation, generally have less politicized appointment processes to increase their independence. There’s a negative correlation between a court’s power and independence that holds true throughout the democratic world.
Israel’s High Court is an anomaly on that graph: Immensely powerful and, especially in the Barak era, almost wholly independent of the elected branches.
Levin’s proposals won’t fix that anomalous status. The Israeli court would remain an anomaly, but in reverse: Effectively powerless to strike down legislation or rein in executive actions and simultaneously subject to a completely politicized (and actually partisan) appointments process.
The current court needs reform; the list of liberals who think so is almost as long as the list of conservatives. But the court Levin seeks to build is not made to free future Yitzhak Rabins from judicial overreach. It seems tailor-made to allow future Aryeh Deris to — not to put too fine a point on it — steal and lie without consequence.
