WSJ calls for checks on High Court, says Deri ruling flies in face of voters

The Wall Street Journal published an editorial defending the Israeli government’s planned judicial overhaul and slamming the dramatic High Court decision last week to bar Shas leader Aryeh Deri from serving as a cabinet minister.

The WSJ editorial board charged Friday that the High Court is more powerful and less restrained by checks than the United States Supreme Court, and “strikes down laws that it finds merely ‘unreasonable,'” referring to the court’s ability to use the test of “reasonableness” to approve or cancel government decisions and legislation.

“Israel’s court even has a veto on the appointment of new justices, in contrast to the US where the President and Senate share the appointment power,” the WSJ wrote, referring to the nine-member Judicial Selection Committee.

The committee is composed of an equal share of ministers, lawmakers, and judges, and requires a seven-person vote to approve new judges, generally leading to a consensus on fresh appointments.

Justice Minister Yariv Levin has proposed weakening the Supreme Court so that it will not be able to veto legislation and policies deemed unconstitutional, and also wishes to grant the government control over the panel that selects judges. Critics say that along with other planned legislation, the overhaul will impact Israel’s democratic character by upsetting its system of checks and balances, granting almost absolute power to the executive branch, and leaving minorities undefended.

Over 100,000 protesters rallied against the proposals in Tel Aviv on Saturday night, and thousands more demonstrated in towns across the country, including in Jerusalem, Haifa, Beersheba, Herzliya, and Modiin.

Tens of thousands of Israelis protest against the government’s planned judicial overhaul, in Tel Aviv, January 21, 2023. (Avshalom Sassoni/Flash90)

Reforming the court has been a major conservative goal for over a decade, with many on the right and among the ultra-Orthodox frustrated by what they see as an activist bench made up of progressives undermining the country’s right-wing majority.

“The wisdom of the reform proposals varies, but it isn’t ‘antidemocratic’ to think Israel’s Supreme Court needs democratic checks on its power. The danger is that the court will next reject as unreasonable any reforms to the court itself,” the editorial said.

“Eminences in the West might cheer such a move all the way to a constitutional crisis. They would do better to concede that Israeli democracy has proved to be resilient, often under the most trying circumstances. If [Prime Minister Benjamin Netanyahu’s] government overreaches, the voters will get their say again,” it added.

The business daily slammed the 10-1 High Court ruling Wednesday that determined that Deri’s dual appointments as health and interior minister were “unreasonable in the extreme” as a major example of judicial overreach.

The court made its decision due to Deri’s recent and past financial crimes, and also because he had misled a magistrate’s court into thinking he would retire from political life in a plea bargain that saw him evade a custodial term and a determination that his recent tax fraud conviction carried “moral turpitude” — which would have required him to withdraw from public life for seven years.

Shas leader Aryeh Deri seen outside his home in Jerusalem, January 19, 2023. (Yonatan Sindel/Flash90)

“The court can point to no law that keeps Mr. Deri out of the cabinet, but it still decided to abrogate the democratic process, decapitating the new coalition government that made court reform a campaign issue,” the editorial board wrote, echoing a refrain by Netanyahu and his allies that they were given a mandate by voters in the November election.

“The court may be making the sounder judgment on character, but in a democracy, that decision is left to voters and the politicians they elect,” they added.

“The justices also argued that Mr. Deri’s prior statements to a court suggesting he was retiring from politics might have influenced his sentencing. Well, politicians lie, and political retirement wasn’t a condition of his plea deal. If it had been, there could be a criminal remedy, not a political one.”

Netanyahu was expected to dismiss Deri from his ministerial roles during Sunday’s cabinet meeting, ending his term after only 26 days in office.