Supreme Court president ends her term on Monday; still involved in ongoing cases

Esther Hayut’s rulings have included critical decisions defying the government and opinions that have bolstered court’s stance that it can review constitutional arrangements

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

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

Supreme Court President Esther Hayut will end her term in office on Monday after seven years at the helm of Israel’s highest court, having reached the mandatory retirement age of 70.

Hayut has written majority opinions on some of the most crucial issues facing the country in recent years, from the ability of the prime minister to serve while under indictment to the legality of settlements built on private Palestinian land, as well as on the very nature of Israel’s national character.

The traditional retirement ceremony at the Supreme Court has been canceled because of the ongoing war in Gaza.

Supreme Court justices have three months after they retire to write opinions on cases they have heard. In the coming months Hayut will likely do so in perhaps the most consequential case ever to come before the court — the government’s recent legislation known as the “reasonableness law,” which restricts the Supreme Court’s power of judicial review over administrative decisions by the government and cabinet ministers.

The case is of critical importance since it deals with an amendment to one of Israel’s quasi-constitutional Basic Laws, which the court has never struck down. It seems likely that even if Hayut and the rest of the court decide not to strike down the law outright, the Supreme Court president will further reinforce opinions she has issued in the past bolstering the court’s position that it does have the right to conduct judicial review over the country’s constitutional arrangements in extreme circumstances.

She is also expected to be involved in a ruling on a second recent change to a Basic Law that sought to block the court from being able to order a prime minister to recuse himself from office.

Since Justice Minister Yariv Levin has refused to convene the Judicial Selection Committee, no new president can be chosen. Current Deputy President Uzi Vogelman will become acting court president on Tuesday.

Hayut was appointed to serve on the Supreme Court as a permanent justice in 2004, after stints in the Tel Aviv Magistrates’ Court and District Court.

As president of the Supreme Court since 2017, Hayut has written opinions for the majority in some of the most important cases to come before the court in the last 20 years.

Prime Minister Benjamin Netanyahu shake hands with Supreme Court Chief of Justice Esther Hayut during a ceremony at the Yad Vashem Holocaust Memorial Museum in Jerusalem, as Israel marks annual Holocaust Remembrance Day, April 17, 2023. (Erik Marmor/Flash90)

“Hayut has been a fierce defender of the independence of the judiciary in the face of grave attacks on its standing, did so calmly and without being overly confrontational, but stood her ground when it was needed,” said Dr. Guy Lurie, a legal expert at the Israel Democracy Institute.

He noted her defiant and highly unusual speech lambasting Levin’s judicial overhaul program to the Israeli Association of Public Law back in January; her direct and combative lines of questioning in hearings involving judicial overhaul legislation; and her novel decision to allow unprecedented live broadcasts of critical hearings.

Prof. Moshe Cohen-Eliya, a lecturer in constitutional law at the College of Law and Business, said Hayut knew how to create consensus on the court, even during a time when there have been growing divisions on the bench between liberals and conservatives.

Supreme Court President Esther Hayut (fifth from right) and all 14 other judges hear petitions against the reasonableness limitation law, September 12, 2023. (Yonatan Sindel/Flash90)

He noted that despite the presence of four clear conservatives, the court recently intervened in the government’s so-called Tiberias law, ruling unanimously in July against legislation that appeared tailored specifically to enable a certain candidate to run for mayor.

And in the explosive case in which the court was petitioned to ban Prime Minister Benjamin Netanyahu from forming a new government in 2020 while under criminal indictment, Hayut secured a unanimous decision of all 11 justices on the panel that rejected the petitions.

Other highly impactful cases for which she wrote the majority opinion include the case of the Settlements Arrangements Law, which allowed the state to retroactively legalize illegal settlements built on private Palestinian land, but which the court struck down in 2020, eight to one.

And in direct defiance of the government and the prime minister in January this year, Hayut wrote the majority opinion ruling that Shas leader Aryeh Deri could not serve as a cabinet minister due to his recent conviction on tax offenses.

Perhaps her most consequential opinion to this point was the one she gave for the majority ruling on the controversial Nation State law in 2021. Although the court ruled to uphold the new Basic Law, Hayut asserted then that the High Court had the power of judicial review over Israel’s proto-constitution, in very specific circumstances: in any case in which the Knesset, through a Basic Law, would seek to revoke “Israel’s essence as a Jewish and democratic state.”

The development of this doctrine, known as the “unconstitutional constitutional amendment,” forms the basis of the argument made by liberals, including those on the Supreme Court, that the court can review and intervene in Basic Laws if they undermine the fundamental components of Israel’s character.

If the court will eventually strike down or otherwise intervene in the recent Basic Law legislation, it will almost certainly be through the further development of this doctrine.

“Hayut wants to be remembered as a leader and a ‘towering judge’ who knew how to navigate the court through its most serious crisis. She sees this as a historic moment and wants to be remembered as someone who stopped the kind of democratic backsliding witnessed in Hungary and Poland in recent years,” said Eliya.

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