The coalition says its ‘reasonableness’ bill is backed by top judge Sohlberg. Is it?

The conservative Supreme Court justice has strongly criticized the doctrine’s use to test politicians’ decisions, but whether he’d support the current legislation is not clear-cut

Jeremy Sharon

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

Supreme Court Justice Noam Sohlberg at the Supreme Court in Jerusalem, March 27, 2019. (Yonatan Sindel/Flash90)
Supreme Court Justice Noam Sohlberg at the Supreme Court in Jerusalem, March 27, 2019. (Yonatan Sindel/Flash90)

One of the central claims the coalition has made in defense of its bill aiming to sharply curtail courts’ use of the judicial doctrine of reasonableness is that such reforms have in the past been backed by prominent Supreme Court justices, in particular Noam Sohlberg, who is a serving justice on the nation’s top court.

In a video message posted Monday afternoon just before the legislation was approved in its first Knesset reading, Prime Minister Benjamin Netanyahu cited Sohlberg in defense of the proposed law and attributed the government’s bill to the justice himself.

The government aims to have the bill, which bars judges from applying the test of reasonableness when gauging the validity of politicians’ decisions, pass its final Knesset votes before the end of the month.

“Amending the reasonableness standard as set out in Supreme Court Justice Sohlberg’s plan is not the end of democracy, it’s the strengthening of democracy,” claimed Netanyahu, in an effort to justify the controversial bill — part of the government’s wider plan to overhaul the justice system — which generated massive protests around the country on Tuesday.

“Justice Ayala Procaccia said reasonableness is likely to bring about the invasion of the court into territory where it is not meant to act,” continued the prime minister, in reference to a former Supreme Court justice.

Procaccia swiftly responded that her comments had related to a separate issue, and that she had in fact ruled in the past based on the reasonableness doctrine and continues to support its use to evaluate the decisions of elected officials.

On the other hand, Sohlberg, a conservative justice slated to become the Supreme Court president in 2028, has been vocally critical of the court’s use of the doctrine. Even though he has not spoken publicly about his position amid the current furor, he has in the past advocated for its use to be limited, albeit by the court’s own self-restraint rather than through legislation.

Serving Supreme Court justices will generally refrain from commenting on issues pertaining to current affairs, especially those relating to the work of the court.

Prime Minister Benjamin Netanyahu speaks with Justice Minister Yariv Levin during a Knesset plenum hearing, July 10, 2023. (Yonatan Sindel/Flash90)

The text of the government’s bill stipulates that “whoever has judicial authority, according to the law, including the Supreme Court, will not deliberate on, and will not give an order against the government, the prime minister, government ministers, or other elected officials as will be defined in law, regarding the reasonableness of their decisions.”

Originally a doctrine meant to invalidate extremely unreasonable decisions, the reasonableness test has since the 1980s allowed the courts to strike down government and administrative decisions seen as having not taken into account all the relevant considerations relating to a particular issue, or not given the correct weight to those considerations — even if those decisions do not violate any particular law and don’t contradict other administrative rulings.

The current coalition has chafed at the High Court’s use of the doctrine, arguing that it replaces the judgment of the elected government with the values of unelected members of the judiciary. It has also noted that there are other judicial doctrines available for justices to gauge politicians’ decisions.

Opponents of the bill argue that the government’s bill 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.

Sohlberg’s declared stance

In a 2020 article (Hebrew link) in the Hashiloach journal, Sohlberg laid out his thoughts on the use of the reasonableness doctrine and on what he said was the need to limit the Supreme Court’s use of it.

“Decisions made by the elected officials — the government, ministers, heads of local authorities — are, for the most part, decisions that reflect a worldview; a values-based worldview, a professional worldview,” wrote Sohlberg.

As such, he asserted, the use of the reasonableness doctrine was not appropriate to test decisions of a values-based or professional nature made by elected officials.

“It strikes at the core of the principle of the separation of powers,” wrote Sohlberg, adding that decisions on the basis of reasonableness in such circumstances “lack democratic approval.”

A police water cannon fires on protesters demonstrating against the government’s bill to drastically reduce the courts’ ability to use the judicial test of reasonableness to strike down government and ministerial decisions, July 11, 2023. (Jack Guez/AFP)

The justice also criticized what he said was the frequent and inappropriate use of the standard by the court to rule on policy, values- and ethics-based decisions.

Since Sohlberg believes that most decisions by elected officials have a values-based, principled worldview aspect to them, it appears that his position, in principle, does bear some similarity to that of the government’s legislation.

Sohlberg also wrote that decisions made by professional civil servants in government ministries should remain subject to the reasonableness standard, as the government’s legislation allows.

But several scholars have pointed out that Sohlberg did not advocate for legislation to limit the court’s use of the reasonableness standard, but rather wanted the court to restrict itself and exercise self-restraint when evaluating the decisions of elected officials.

Prof. Ronen Avraham, a professor of law at Tel Aviv University’s Faculty of Law, wrote in a recent article in the Makor Rishon newspaper that Sohlberg therefore “left the final judgment in the hands of the court” regarding its use of the reasonableness doctrine to evaluate decisions by all levels of government — administrative or elected.

Avraham also pointed out that Sohlberg himself ruled against the previous government led by Naftali Bennett and Yair Lapid in September 2022 on the basis of reasonableness when considering the appointment of former Supreme Court justice Menachem Mazuz to head the Senior Appointments Advisory Committee.

However, that decision was different in that it was made during an interim government, when the discretion of the leadership is more limited since it does not have a mandate from the people.

It is also possible to argue that since Sohlberg talked of limiting the use of the doctrine specifically regarding decisions by elected officials that are values-based and in accordance with the worldview of the official, decisions of a more narrow nature with a more specific focus should still be subject to scrutiny under the reasonableness doctrine.

Prime Minister Benjamin Netanyahu leads a cabinet meeting at the Prime Minister’s Office in Jerusalem, July 9, 2023. (Marc Israel Sellem/Pool)

This point has been used by conservative legal scholars such as Prof. Yoav Dotan, who has argued that policy decisions by the government should be exempt from the use of reasonableness, but decisions by ministers relating to the authorities of their ministries should still be subject to the test.

Speaking on Army Radio on Wednesday morning, Dotan was adamant that Sohlberg would not support the current legislation.

“This is Sohlberg’s reasonableness [position] like I am Cristiano Ronaldo,” quipped Dotan, adding that based on his familiarity with the justice “he is right now circling his office and climbing the walls” out of frustration with how his stance on the issue has been presented.

“They are distorting things, they are taking one aspect of what Sohlberg talked about — which is the necessity to differentiate between the political branch and the administrative, bureaucratic branch [when using] judicial review, which is correct — but ignoring everything else he said,” continued Dotan, and argued that from the justice’s rulings and other writings he was sure Sohlberg would be opposed to the government’s bill.

Not explicit

Dr. Amir Fuchs, a scholar at the Israel Democracy Institute, says it is possible to understand Sohlberg’s intention in his Hashiloach article as seeking to rule out the use of reasonableness relating to the decisions of elected officials in the broad way it was used by former Supreme Court president Aharon Barak in the 1980s, while preserving it in its narrower form for invalidating decisions deemed to be unreasonable in the extreme.

Sohlberg was, however, not explicit about that either.

The justice also didn’t discuss whether government appointments should be subject to the reasonableness standard.

The coalition’s bill rules out using the reasonableness test for government appointments, and is understood in part to be aiming to reinstate Shas party leader Aryeh Deri as a cabinet minister after the High Court of Justice ordered Netanyahu to fire him in January on the basis of the appointment being “unreasonable in the extreme,” and also because Deri had convinced a lower court that he was quitting politics to secure a lenient plea deal over a tax offense conviction.

But since Sohlberg believes that decisions by elected officials should, broadly speaking, not be subject to the use of the reasonableness test, this would presumably include the appointment of ministers and other officials as well.

Even though it would be fair to say that Sohlberg’s stance on the issue is supportive of the general idea of reducing the court’s use of the reasonableness test as laid out in the government’s bill, nuances in his lengthy Hashiloach article make it difficult to determine whether he supports the blanket and sweeping manner in which the current legislation bars the court from using the doctrine in any format to test any sort of governmental and ministerial decision-making.

Critically, Sohlberg’s argument was made in the framework of the High Court limiting itself, not having the legislature put the court in a judicial straitjacket. His position might ultimately stipulate that the discretion over whether to use the reasonableness test remains with the judiciary itself.

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