Judge who ‘inspired’ reasonableness bill says he didn’t intend legislative changes

In a rare public statement, conservative Supreme Court Justice Noam Sohlberg on Monday distanced himself from the coalition’s bill to radically restrict the courts’ use of the judicial “reasonableness” standard, saying that when he had discussed the notion in the past, he did not mean that such restrictions should be imposed via legislation.

Sohlberg, whose criticism of courts’ use of the doctrine has been used by the coalition to justify its legislation, stressed that his intention had only been to bring about an internal judicial process to limit the use of the tool.

To legitimize the current legislation, Prime Minister Benjamin Netanyahu and other senior government ministers have specifically cited elements of a lecture by Sohlberg three years ago — later formulated into a lengthy essay — in which he detailed his concerns about the use of reasonableness against policy decisions made by the government.

Netanyahu even called the bill the “Sohlberg plan” in a recent video message explaining the rationale behind the legislation.

“Truth be told, I didn’t think then, three and a half years ago in that lecture, about an amendment through legislation. I thought about a trend that would come about through court rulings,” said Sohlberg, in a statement issued via the court spokesperson, in response to a query by the Israel Hayom newspaper.

“At the end of my lecture,” he added, “I even emphasized that interpretation, reasonableness and proportionality ‘invite significant challenges, and oblige us to expand and deepen the important debate on the proper limits of judicial discretion.’”

Prime Minister Benjamin Netanyahu (R) speaks with Justice Minister Yariv Levin, during the weekly cabinet meeting at the Prime Minister’s Office in Jerusalem, May 28, 2023. (Yonatan Sindel/Flash90)

Following publication of his statement, a clarification issued on Sohlberg’s behalf stated that he had been “responding to questions regarding his article from three and half years ago, and did not take any position regarding the current legislation.”

With the Knesset Constitution, Law and Justice Committee beginning the final approval process of the bill on Monday, Sohlberg’s statement appeared timed to indicate that he did not wish his name associated with the legislation itself.

Netanyahu issued his own statement following the justice’s comments, insisting that Sohlberg’s statement showed he still believed in the principle behind the coalition bill.

“Contrary to media reports and in accordance with the clarification he issued, Justice Sohlberg did not contradict the essence of the law — reducing [the use of] ‘reasonableness’ regarding [decisions by] elected officials,” said Netanyahu.

It said the apparent difference of opinion was “technical” and concerned only the method by which to bring about the desired result — “whether by [judicial] rulings or legislation.”

In his essay in the Hashiloach journal in 2020, Sohlberg was highly critical of the use of the reasonableness standard against government and ministerial policy decisions, and advocated for its use to be reduced in such circumstances.

He was not clear, however, on whether it should be abolished for individual ministerial decisions, as would be the case under the coalition’s bill, and which senior legal scholars, including conservative ones, have said could have a negative impact on civil rights.

Scholars have argued that despite the claims of the coalition, Sohlberg’s position was not to impose a blanket ban on the use of reasonableness as the current bill would do, and not to do so via legislation at any rate.

Knesset Constitution, Law and Justice Committee chairman MK Simcha Rothman leads a committee meeting on a bill to severely limit the courts’ use of the reasonableness standard, July 17, 2023. (Yonatan Sindel/Flash90)

With an unprecedented 27,677 reservations to get through, the Knesset’s Constitution, Law and Justice Committee began the approval process for the bill’s final floor readings on Monday evening.

Opposition MKs, assisted in the last few days by the Student Protest Movement, drew up thousands of reservations, or amendments, to the legislation in an effort to try and delay passage of the bill. The coalition wants to see it okayed by the committee later this week and brought for its final readings in the Knesset sometime next week.

Because of the record number of reservations submitted, Knesset Legal Adviser Sagit Afik recommended several different options for the committee to proceed.

Afik said her preference would be for the coalition and opposition to agree to some changes to the bill in return for reducing the number of reservations, but that proposal appeared to be a non-starter, after a limited attempt by Rothman to achieve that outcome failed earlier in the day.

Ultimately, the framework adopted was to allow opposition MKs 18 hours to explain the reservations starting late on Monday night, after which votes will take place in batches on bundles of reservations, allowing for some 1,500 separate votes.

Afik expressed couched criticism of the opposition for the huge number of reservations it had submitted, noting that the original purpose of the tool was to broaden the deliberative process through the submission of small numbers of reasoned reservations, but that this goal was eroded whenever larger numbers of amendments which are not substantive proposals are submitted.

Knesset Legal Adviser Sagit Afik speaks during a hearing of the Constitution, Law and Justice Committee, July 17, 2023. (Yonatan Sindel/Flash90)

“The Knesset’s job is to legislate, and it is not right to delay or even to stop the legislative process for a law the Knesset desires to advance through the committees and plenum by the submission of [such] large numbers of reservations that it borders on the misuse of the reservations tool,” said Afik.

During the debate on the process Monday afternoon, Rothman sarcastically thanked members of the opposition “for their integrity for not agreeing to advance any compromise on this bill for what they call dangerous legislation.” He accused the opposition MKs of unreasonable behavior by submitting such massive numbers of reservations.

Yesh Atid MK Yoav Segalovich rejected Rothman’s claims, saying the committee chair had failed to amend the bill, despite the opinions of several experts who addressed the committee and recommended changes.

“You didn’t allow for real dialogue in the committee in this repressive process,” fumed Segalovitch, pointing out that numerous legal advisers from different government departments were prevented from addressing the committee and explaining the consequences of the bill.

The bill, an amendment to Basic Law: The Judiciary, would ban the courts from invalidating or even discussing government and ministerial decisions, including appointments and dismissals of officials, based on the judicial test of reasonableness, although it would allow for such review over decisions made by professional civil servants.

The coalition argues that use of the reasonableness standard constitutes elevating the judgment of unelected judges over the policies of the government and elected officials, and gives the courts too broad a scope for judicial intervention in policy decisions.

Opponents of the bill argue that it is a blunt tool that will open the door to corruption and reduce scrutiny of elected officials when making sensitive decisions, including those impacting civil rights.