Will Israel’s Supreme Court Fight Back?

TEL AVIV, Israel—Israeli Prime Minister Benjamin Netanyahu is determined to curb the powers of the Supreme Court. Can the court itself stop him?

Earlier this week, the far-right government led by Netanyahu rammed a bill through parliament that undermines the court’s judicial review powers, escalating the monthslong crisis over its larger plan to overhaul the country’s legal system.

Now, as weekly mass protests on the streets continue, thousands of military reservists refuse to report for duty, and global credit rating agencies register deep concern, the showdown moves to the Supreme Court.

Petitions have already been filed by legal and civil society groups against the bill, an amendment to a quasi-constitutional Basic Law that eliminates the Supreme Court’s ability to strike down government decisions and appointments on the grounds of “extreme unreasonableness.”

“The law to abolish the ‘standard of reasonableness’ threatens to give the executive branch power that is not subject to judicial review, and to allow it to govern without restraints and limitations,” read the petition by the Israeli Bar Association. “It is part of the legal plan announced [by the government in January] … that outlined a road map for dismantling the judicial system as it was built in the 75 years of the state.”

The Supreme Court has said it will take up the petition in September, although legal experts believe that date may be moved up (on appeal) to August, with an expanded panel of nine or 11 justices likely to sit in judgement.

The stakes could not be higher: a court weighing in on the legality of a law limiting its own powers, passed in parliament with a clear albeit slim majority, amid a backdrop of hundreds of thousands of citizens on the streets demanding to save the country’s democracy.

“Each and every one of us has a tremendous obligation to continue to resist and to defend with our souls and bodies the Supreme Court so that it can protect us,” the protest movement’s steering committee wrote to supporters via WhatsApp  this week, vowing to escalate what is already the largest and most sustained civic rebellion in Israel’s history.

Such an intervention by the court would be unprecedented. Though justices have struck down regular laws in the past, they have never ruled on the legality of a Basic Law. Israel has a total of 13 Basic Laws, which many legal experts and politicians view as the basis of a proto-constitution—though passing a basic law or an amendment requires only a simple parliamentary majority.

Since the legislation in question is an amendment to a Basic Law, the court would be effectively ruling that the constitutional amendment is unconstitutional, a contortion that law professor Suzie Navot describes as “an unconventional weapon.”

“[The court] has the power to strike down a Basic Law, but it would be the first time. It will be a challenging petition,” said Navot, a vice president at the Israel Democracy Institute, a nonpartisan think tank, hinting at the larger political and social fallout likely at the forefront of justices’ minds.

Presiding over all this is Supreme Court President Esther Hayut, a steely, no-nonsense jurist who earlier this year publicly clashed with the Netanyahu government over its judicial overhaul agenda. Hayut and one other liberal justice are set to step down in October due to mandatory retirement rules at the age of 70, adding further immediacy to the proceedings since the court is then set to tilt more conservative.

Some experts believe that Hayut may, as a legacy move, try to steer the court in the direction of striking down the controversial law, known as the “Reasonableness Bill.”

“Historically, chief justices ahead of retirement are more activist. They may feel they have nothing to lose, and so we’ve seen instances of last-minute courageous rulings,” said Barak Medina, a law professor at Jerusalem’s Hebrew University. “This was in normal times. We’re far away from normal times right now.”

According to several legal experts, Hayut and her colleagues may rely on two relatively unproven precepts of Israeli constitutional law.

The first and more straightforward argument the court may make is on the substance of the law passed this week: that it is simply unconstitutional, despite the fact that Israel has no written constitution.

The court may decide that the law “infringes upon the basic values, the basic principles, of … Israel [as] a Jewish and democratic state,” Navot said.

“If [parliament] enacts a Basic Law that decides that Israel is no longer Jewish … we would have the same discussions that we’re having today. [Parliament] does not have the power, it’s not legitimate, to change the basic structure and values of the state.”

Medina, from Hebrew University, added that the court may view the recent law as undermining Israel’s “core democratic values, like the separation of powers, independence of the courts, and the power of judicial review.”

The second argument the court may deploy would be built not on the substance of the law, but rather on the context within which it was passed and the motivations behind it. In this scenario, according to Medina, the court would strike down the law as “an abuse of the constitutive and legislative power” of parliament, wherein it misused its power for its own individual or political needs.

Legal experts admit the above doctrines are still unclear and untested, although that may change—and soon.

The Supreme Court next week is expected to take up a different petition against another controversial amendment to a Basic Law passed by the Netanyahu government earlier this year. That law makes it harder to declare a prime minister unfit for his position and removed from office.

If the Supreme Court strikes down this law, Medina said, it would “give us a strong indication in which direction Hayut is pulling. It’s a testing ground for the ‘Reasonableness Bill’ petition and could create a precedent for the court.”

The reaction by lawyers representing the government’s position is instructive, arguing in an official written response to the Supreme Court that it does not have the power to strike down a Basic Law.

Netanyahu’s Likud party also deployed the analogy of an “unconventional weapon” in its statement to the media. “If the Supreme Court strikes down a Basic Law, that will be the straw that breaks the camel’s back, and will lead to utter chaos. That is a nuclear weapon that mustn’t be used.”

If the Supreme Court does ultimately strike down the Reasonableness Bill, tensions inside the country between the government and its opponents—already sky-high in the past seven months—would likely surge. Analysts believe the government might choose to not comply with the decision—or to escalate its war against the legal system, moving to legislate the entire removal of all review powers from the courts and government legal advisors. This would likely precipitate a complete constitutional crisis between the branches of government.

“It would bring us closer to an explosion, and a full-on collision,” says Medina, though he added that it may take some time until the government’s noncompliance materializes in practice.

If it does, the chiefs of Israel’s vaunted military, intelligence, and police organs might be forced to take sides—either with the government or the courts. The head of the Mossad foreign intelligence agency, David Barnea, was quoted by Channel 12 News on Monday as telling his subordinates: “If a constitutional crisis unfolds, I’ll be on the right side of history—but we’re not there yet.”

Navot, for her part, hopes that moment never arrives

“If the government does not obey the court, then why should … anybody else?” she said. “I hope we don’t get to that point. But we might.”

Appearing on CNN on Thursday, Netanyahu pointedly refused to say that he would.

“We’ll go into uncharted territory,” he said about the prospect of the Supreme Court striking down the bill. “I really would like to believe they won’t do that. We’re all subject to the rule of law—the prime minister, the parliament, and the judges … everyone is subject to the rule of law.”