Will the High Court rulings against the judicial overhaul become a permanent revolution?

Last week saw the most dramatic three days in the constitutional history of Israel since its foundation, and the resolution, at least for now, of a bitter power struggle between the country’s branches of government.

During the first nine months of 2023 — which coincided with the first nine months of the government’s tenure — the country was consumed by a blazing political dispute over the coalition’s efforts to redraw the balance of power between the Knesset and the government on one hand, and the judiciary on the other.

That initiative was founded on the Knesset’s power to pass and amend quasi-constitutional Basic Laws, and the government’s contention that this authority should not be subject to scrutiny or constraint.

But last week, the High Court of Justice brought to full fruition two judicial doctrines that will have a deep and lasting impact on what until now had been the free rein enjoyed by the Knesset, and by extension the government, in formulating and changing Israel’s constitutional makeup.

In its rulings on two laws passed last year, the reasonableness law and the recusal law, the court for the first time intervened in amendments to the Basic Laws, striking down the former and delaying implementation of the latter so as to thwart one of its primary goals.

By asserting as never before the authority of judicial review over the very nature of Israel’s constitutional arrangements, the High Court effectively ring-fenced Israeli democracy from the most far-reaching excesses of majoritarian rule, and the rule of law from blatant manipulation.

This is the judicial revolution that unfolded in Israel last week.

An unprecedented week

Even before those two dramatic rulings, the government’s controversial judicial overhaul agenda had already been largely hamstrung: first by the massive protest movement that sprang up in opposition, and then by the devastating Hamas attack on October 7, which put all non-war agenda items on the back burner as well as stripping the government of political capital for anything other than dealing with the current conflict.

But the High Court’s rulings will have deeper and more enduring repercussions for Israel’s constitutional foundations.

The reasonableness law was passed in July as an amendment to Basic Law: The Judiciary. It banned all courts, including the High Court, from ruling against government and ministerial decisions on the basis of the “reasonableness standard,” which weighs whether there were problems with the considerations used in those decisions, or with the weight given to those considerations.

The recusal law was passed as an amendment to Basic Law: The Government and determined that only the the government and the Knesset could declare the prime minister to be incapacitated and only on medical grounds, whereas previously it was theoretically possible for the attorney general to order the prime minister to recuse himself.

In its ruling on the reasonableness law, the court declared that there are things that even the Knesset, as the expression of the will of the sovereign people, cannot do to Israel’s democracy.

This idea had been in development since a 2021 ruling on the Nation State law, when then Supreme Court president Esther Hayut theorized that the court may have the power of judicial review, in extreme circumstances, over Basic Laws, if the Knesset used them to undermine either of Israel’s key characteristics as a Jewish and a democratic state.

Constitutional scholar Prof. Yaniv Roznai of Reichman University, whom Hayut quoted in her ruling, argued that the court had left open what might happen if the Knesset did exceed these boundaries, and only resolved that question last Monday.

“This is a second constitutional revolution,” said Rozani, the first being developments in the 1990s when the High Court asserted the power of judicial review over regular Knesset legislation through the landmark Bank Mizrahi ruling of 1995, based in large part upon two Basic Laws passed in 1992 and 1994.

“Here the court is saying that not only are Basic Laws part of the constitution, but that Basic Laws themselves are subject to something even higher, which are the values of Israel as a Jewish and democratic country,” he said.

This is a controversial step, which the deeply conservative justices on the court, Noam Sohlberg and David Mintz, strongly objected to in their rulings, arguing that the second revolution contravenes the first.

But 12, if not 13, of their colleagues on the 15-justice panel that heard the petition against the reasonableness law took a less rigid interpretation of that original judicial revolution, and agreed with Hayut that there are circumstances when even the Basic Laws themselves are subject to a higher authority (though not all those justices agreed that the reasonableness law was the right case to assert this principle).

In the recusal law ruling, the court established once and for all that there is also a limit to the manner in which the Knesset can tamper with constitutional arrangements for narrow and short-term goals.

As Hayut pointed out during the hearing on petitions against this law, the court had warned on numerous occasions against manipulating Basic Laws to suit the political needs of the time, but said that those warnings had “fallen on deaf ears.”

It came very close to intervening over such abuses in 2021 when reviewing an amendment to Basic Law: The Knesset that extended the deadline for passing the state budget (to enable the troubled Netanyahu-Gantz coalition at the time to overcome its political differences).

The High Court ruled then, in the so-called Shafir case, that the amendment was in fact a misuse of constituent authority by the Knesset — that is, it had abused its power to make Basic Laws for a short-term political goal — and the court issued a “warning of cancellation” but did not strike the law down.

Then in January 2023, Hayut described another amendment, this time to Basic Law: The Government designed to enable Shas leader Aryeh Deri to serve as a cabinet minister despite a recent criminal conviction, as “a nadir” in the legislative abuse of Basic Laws.

Instead of taking the step of striking down that amendment, though, the court ruled that Deri’s appointment itself, following the passage of that problematic law, was unreasonable in the extreme.

But for six of the 11 justices on the court, the recusal law — an amendment to Basic Law: The Government whose proponents declared that it was aimed at shielding Prime Minister Benjamin Netanyahu from the theoretical possibility of being ordered to stand down by the attorney general due to a conflict of interests over his ongoing criminal trial — was a step too far.

The Basic Laws need to look like Basic Laws, must be worded in a nonspecific manner, must have general applicability, and must not be motivated by political considerations, as the recusal law had been, they ruled.

In the 2015 to 2019 Knesset, the Basic Laws were amended no fewer than 14 times, while an entirely new Basic Law, the Nation State law, was passed with a small majority in the face of widespread opposition

More fundamentally, the decision actualized the not-especially-revolutionary concept the court had put forward in the Shafir and Deri decisions, that the Basic Laws cannot be used as putty in the hands of lawmakers for political expediency.

In the 2015 to 2019 Knesset, the Basic Laws were amended no fewer than 14 times, while an entirely new Basic Law, the Nation State law, was passed with a small majority in the face of widespread opposition.

This phenomenon is the result of the extreme ease with which it is possible to pass, and tinker with, Basic Laws, almost all of which require just a simple majority to amend, and with no more rigorous process than that of a regular law.

Now, regarding the recusal law, amending another of Israel’s quasi-constitutional laws because the prime minister was in legal trouble was not an appropriate use of the Knesset’s power, the court insisted on last week.

Although there was only a narrow majority for the decision, Justice Yael Wilner, a  moderate conservative who ruled in favor of upholding the law, nevertheless appeared to accept the broader principle of the misuse of constituent authority doctrine. Two other moderate conservatives, along with two liberal justices, were not part of the 11-justice panel that heard the case.

You say you want a revolution?

The question that remains is how deep and long-lasting will this so-called second judicial revolution be.

Prof. Yoav Dotan, a constitutional scholar in the Faculty of Law at the Hebrew University, believes that the constitutional impact of last week’s two rulings will be enduring and difficult to reverse.

Dotan is himself strongly skeptical about the court’s ruling on the reasonableness law, and does not agree that the law did such terrible damage to the constitution as to justify striking it down.

But he sees the two rulings not in legal and constitutional terms alone, but within the framework of a titanic power struggle between the judiciary and the government over the broader issue of whether there are limits to the Knesset’s power over the constitution.

Dotan said the judicial overhaul program upon which Justice Minister Yariv Levin embarked in January had “attacked all components of judicial review, the appointment of judges, the constitutional authority of the court, and its independence.”

Said the professor, “The High Court said to the government, ‘If you can tear up the rulebook, we can tear up the rulebook too.’ The judicial system stood up for its independence, and won, and this will be hard to revoke in the future, unless there is great consensus for it.”

The constitution exists in the heart of the people, and the people of Israel showed it has very deep democratic roots. That is what helped the court do what it did

But he insisted that the strength of Israeli democracy had not come to its fullest expression in the rulings of the High Court last week, but rather in the outpouring of opposition by large sections of the public to the government’s plans.

“Legal struggles are not decided by texts, but rather by the balance of powers within the public. The strength of Israeli democracy is in the protest movement. The constitution exists in the heart of the people, and the people of Israel showed it has very deep democratic roots. That is what helped the court do what it did. ”

This, for Dotan, is the only long-term guarantor of the judiciary’s independence and the longevity of Hayut’s revolution.

And Hayut herself added a critical caveat to her revolutionary rulings in her written opinion on the recusal law.

“If, in the future, a rigid and unique framework is established for legislating Basic Laws and their amendments that guarantees that legislating them will be based on broad public consensus, there will be space to examine again the question of judicial review of Basic Laws that are adopted in such a framework,” wrote the recently retired Supreme Court president.

Hayut was saying that passing judgment on the constitutional foundations of the Jewish state is not something the court necessarily needs or wants to do.

If a system is put in place where democratic principles and the rule of law are not subject to the will of every fleeting, narrow coalition majority, then the court would likely not need to arrogate to itself this immense and controversial power.

That would be the ultimate constitutional revolution.