ExplainerInconceivable that court will back down in every hearing

September showdown: Israel’s branches of government to face off in three key cases

Petitions against two coalition Basic Law amendments, and justice minister’s refusal to convene crucial panel, give retiring court chief chance to leave final far-reaching mark

Jeremy Sharon

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Supreme Court President Esther Hayut and other justices during a court hearing at the Supreme Court in Jerusalem, on August 3, 2023. (Yonatan Sindel/Flash90)
Supreme Court President Esther Hayut and other justices during a court hearing at the Supreme Court in Jerusalem, on August 3, 2023. (Yonatan Sindel/Flash90)

Israel is going to witness an unprecedented showdown between its branches of government next month, with the High Court of Justice set to hold hearings on petitions against amendments to two Basic Laws passed by the coalition and another motion aimed at forcing Justice Minister Yariv Levin to convene the Judicial Selection Committee.

The three hearings have put the High Court and the government on track for a potential constitutional crisis, with the former asserting its right to judicial review over all Knesset laws, including quasi-constitutional Basic Laws, and the latter angrily insisting the court has no authority or legitimacy to intervene in such matters.

Following a postponement granted to Levin in the Judicial Selection Committee case, the first and most explosive of the three hearings to be held will be for the petitions against the government’s centerpiece reasonableness limitation law, scheduled for September 12.

The legislation, an amendment to Basic Law: The Judiciary which bars the courts from using the reasonableness standard to reverse government and ministerial decisions, is the only victory the coalition has to show for what are now more than eight months of political and societal turmoil.

Then on September 19, a hearing will be held on petitions demanding Levin convene the Judicial Selection Committee — which appoints new judges — something he has refused to do until the coalition passes legislation giving it more control over the panel. (On September 5, the court rejected a government request to delay the hearing.)

Finally, on September 28, the top court will hold a hearing on the coalition’s recusal, or incapacitation, law.

That legislation, an amendment to Basic Law: The Government, shields the prime minister from being removed from office by the High Court or the attorney general and was specifically passed to prevent such an order from being applied to the current premier, Benjamin Netanyahu.

Prime Minister Benjamin Netanyahu, left, and Justice Minister Yariv Levin in the Knesset plenum during a vote on the coalition’s ‘reasonableness’ bill, July 24, 2023. (Yonatan Sindel/Flash90)

So what are the likely outcomes of this series of clashes between Israel’s branches of government?

The reasonableness challenge to the authority of the High Court

The reasonableness law has a clear effect on the balance of power between the branches of government in Israel.

The coalition argued that the law it passed on July 24 was critical in restraining an overly activist court, which was substituting its own worldview for the will of the majority, while opponents argued that the legislation strips the court of a key tool for holding the government accountable and ensuring that law enforcement bodies remain independent.

Supreme Court President Esther Hayut assembled an unprecedented 15-member panel consisting of every justice on the High Court bench to hear petitions against the law in what will surely be the most dramatic hearing in recent memory.

The Times of Israel has already reported on the possible outcome of this hearing, with several scholars opining that despite the blanket ban on the courts’ use of reasonableness, it is unlikely the High Court will be convinced that it is so injurious to Israeli democracy that it warrants being struck down.

Prof. Moshe Cohen-Eliya, a lecturer in constitutional law at the College of Law and Business and former president of the institution, takes a differing view, however, and argues that Hayut has set up the September showdown as the climactic denouement of her time as court president before she retires in October.

Prof. Moshe Cohen-Eliya, lecturer in constitutional law at the College of Law and Business. (David Sakuri)

“High Court justices like to have a legacy ruling, often just before they retire, and all the signs indicate that September will be a dramatic month,” Cohen-Eliya contended.

The professor opined that Hayut has convened the 15-justice panel to lend greater legitimacy to a decision to strike down the reasonableness law, noting that liberal justices still outnumber conservatives on the bench.

He added that when top courts in India and Brazil were targeted by populist lawmakers in their respective countries, they united ranks and pushed back.

Nevertheless, the High Court would have to be convinced that the law banning the use of the reasonableness standard amounts to an unconstitutional constitutional amendment. This is one of the two doctrines the court has developed to potentially invalidate a Basic Law, though it has never actually employed either one.

Such a determination would assert that the law fundamentally undermines Israel’s Jewish and democratic identities as laid out in the Declaration of Independence, and could therefore be deemed unconstitutional.

But that argument will be difficult to make given that the law deals with just one judicial standard in the realm of administrative law, not Knesset legislation, and leaves the court with other judicial tools to review many, if not all, government decisions.

“Being a clumsy, reckless piece of legislation and insufficiently rigorous is not enough to warrant judicial intervention, especially when it comes to Basic Laws,” says Prof. Netta Barak Corren, an expert in constitutional law at the Hebrew University of Jerusalem.

Thousands of anti-judicial overhaul activists march into Jerusalem on Route 1 as part of protests against the government’s bill to severely limit the High Court of Justice’s use of the reasonableness standard, July 22, 2023. (Yonatan Sindel/Flash90)

The recusal law in the court’s crosshairs

The outcome of the petitions against the recusal law is perhaps easier to discern, since an initial hearing by a panel of the court’s three most senior justices last week gave clear insight into their thinking on the matter.

Hayut, together with justices Uzi Vogelman and Isaac Amit, pilloried the law for what they said was the clearly personal goal for which it was designed: to forestall a situation in which Attorney General Gali Baharav Miara could order Netanyahu to recuse himself from office.

“Does the personal nature of this law not rise to the level of misuse of constituent authority” by the Knesset, Hayut asked during the hearing, referencing the second doctrine for striking down a Basic Law, whereby the Knesset is deemed to have improperly used its power to pass or amend Basic Laws.

Hayut also remarked that the court has strongly criticized narrowly focused and tailor-made Basic Law amendments in the past, such as the amendment to Basic Law: Knesset passed in 2020 temporarily delaying the deadline for the government to pass a budget in order to give it more time to resolve political conflicts between the short-lived unity coalition’s co-leaders, Netanyahu and Benny Gantz.

“We have already expressed criticism, but it seems that it is falling on deaf ears,” Hayut lamented in court last week, in what could be a portentous statement.

Hayut has already lambasted another law passed by the current coalition that was designed specifically to enable Shas leader Aryeh Deri to receive a cabinet appointment despite his recent criminal conviction on tax fraud charges.

“It’s hard not to see in Amendment 11 to the Basic Law: [The Government]… the low point of that worrying phenomenon… in which MKs abuse the ease with which Basic Laws can be amended for their specific political needs,” Hayut wrote as an aside in her opinion for the majority opinion, which held that Deri could not serve as a cabinet minister.

The High Court has also given two major indicators that intervention over the recusal law is possible.

The first came last week, when it struck down a key component of the so-called Tiberias law passed by the coalition in July and said the legislation can only come into effect after the municipal elections in October.

Acting Tiberias mayor Boaz Yosef at a hearing at the Supreme Court in Jerusalem, in petitions against the so-called “Tiberias law,” on July 30, 2023. (Yonatan Sindel/Flash90)

Interim acting mayors were, before the legislation was passed, required to wait out a term before running for mayor, and the law passed by the coalition was largely seen as having been designed to enable the current acting mayor of Tiberias to run in the upcoming municipal elections.

It was the personal aspect of that law that the justices opposed, and the nine-judge panel was unanimous in its decision.

During the hearing on the recusal law last week, Hayut and Vogelman both suggested that delaying its implementation might resolve the personal nature of the legislation, as was the case with the Tiberias Law.

Hayut subsequently expanded the panel for the recusal law case to 11 justices and issued an injunction demanding the prime minister and the Knesset explain why implementation should not be delayed, a strong hint that it may well use that interpretative option again.

However, stopping the law from being applied to Netanyahu would constitute an unprecedented intervention by the court in a Basic Law and undoubtedly further stoke right-wing ire toward the court.

President of the Supreme Court Esther Hayut (center) and Supreme Court Justices Uzi Vogelman (left) and Isaac Amit (right) seen during a court hearing on petitions against the coalition’s recusal law, August 3, 2023. (Yonatan Sindel/Flash90)

Netanyahu has said he still intends to go ahead with substantive changes to the composition of the Judicial Selection Committee, as has Levin, and such a decision on the recusal law might stiffen their resolve and allow them to justify advancing such legislation.

Coalition party heads also issued a statement following the court’s injunction against the recusal law, asserting in no uncertain terms that the court “has no authority to cancel a Basic Law and has no authority to rule that a Basic Law must go into effect at a later date.”

Nevertheless, the fallout might be somewhat limited, since the court would be stopping short of actually striking down a Basic Law — a nuclear option more likely to ensure a constitutional showdown between Israel’s judiciary and its legislature.

Liberals, conservatives and the danger of dissent

Barak Corren noted that unlike the Tiberias law ruling, decisions on the recusal law and the reasonableness law are unlikely to be unanimous, and that could cause legitimacy problems for the court.

Prof. Netta Barak Corren of the Hebrew University in Jerusalem. (Hadas Parush/Flash90)

Justice David Mintz, a conservative, who is on the 11-justice panel for the recusal law as well as the full-court panel for the reasonableness law, wrote explicitly in a 2021 opinion in the ruling on Basic Law: Nation-State that the High Court has no authority to intervene in Basic Laws.

Mintz was not on the panel that decided to delay the implementation of the Tiberias law, although that legislation is not a Basic Law.

Justice Noam Sohlberg — another noted conservative on both panels — made similar comments in his opinion on the Nation-State Law.

Justices Yosef Elron and Alex Stein — both on the recusal panel and reasonableness panel — are also considered conservatives, while Justice Yael Willner was described by Cohen-Eliya as “conservative-lite.”

“Dissenting opinions could be problematic for the legitimacy of the court,” Barak Corren said, even if the court only delays implementation of the recusal law instead of striking it down.

“Anything less than a unanimous decision will fuel the fire over the judicial reform crisis,” she said.

Supreme Court Justice David Mintz, December 25, 2017. (Miriam Alster/Flash90)

Levin’s Judicial Selection Committee gambit

The petition against Levin’s refusal to convene the Judicial Selection Committee is perhaps the most clear-cut, since a key element of administrative law is that someone empowered with a specific authority has to use it within a reasonable period of time, Cohen-Eliya said.

There are already several dozen judicial appointments that need filling, so the court could well rule that Levin’s failure to convene the panel warrants the court’s intervention.

That said, making such a ruling in September might go further than the court would like, and its justices might prefer to issue the justice minister a warning before intervening. More empty positions will indeed appear on the bench in the meantime, but the judiciary is still able to function.

The longer Levin refuses to convene the committee, though, the more likely it becomes that the court will intervene and compel him to do so. However, Cohen-Eliya added that Levin could still drag his feet on appointments, even if he was forced to convene the committee, and it would be hard to force him to hold a vote on candidates for the judiciary.

What comes next?

It seems almost inconceivable that the High Court will back down and yield in all three September cases.

The recusal law looks most likely to face some form of High Court intervention, which will surely further heighten the already ferocious flames of the current political and societal conflagration.

Supreme Court President Justice Esther Hayut presides over a court over the Homesh illegal West Bank outpost, January 2, 2023. (Yonatan Sindel/Flash90)

Were the court to demur from striking down the more crucial reasonableness limitation law, though, it might serve to quell the outrage over delaying implementation of the recusal legislation.

But at the same time, Hayut could use the dramatic, high-profile stage of the 15-justice panel to further develop the doctrine she outlined in her Nation-State Law ruling — which argued that the High Court still does have the right to review Basic Laws that undermine Israel’s democratic identity — without striking down the law and splitting the court at an incredibly sensitive time for its standing.

Such an opinion might give the government notice that attempts to take total control over the Judicial Selection Committee — an act that has significantly undermined democratic governance and the rule of law in other countries — will not be tolerated by the court.

That, too, might be a fitting swan song for the Supreme Court president.

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