How Israel’s Supreme Court Might React to the Challenge to Its Power

As protesters continue to pour into the streets throughout Israel, condemning a bill passed on Monday by the right-wing government to blunt the power of the country’s judiciary, the Israeli Supreme Court faces a momentous decision: How should it respond to a challenge to its own power?

The new law limits the rationale the court can use to strike down decisions by the government. Yet as soon as it passed, petitions asked the justices to do just that, by voiding the law itself.

Analysts said the court has essentially three choices: 1) strike down the law; 2) narrowly interpret it to curb its impact; or 3) simply not decide by refusing to hear any of the petitions.

The bill was passed by the Knesset, Israel’s Parliament, as part of a broad plan by Prime Minister Benjamin Netanyahu’s government to overhaul the judiciary by taking control of how judges are selected and eliminating the power of the courts to review certain cases.

The protesters say the bill, and the broader plan, are an attack on democracy because the courts are the primary check on the Knesset and the prime minister in Israel’s parliamentary system. Mr. Netanyahu and his allies defend the law as a protection of democracy, a necessary means of preventing judges from interfering with the decisions of elected lawmakers.

Any decision by the court — including a refusal to hear a challenge to the new law — has implications for the waves of protest, and counterprotest by the law’s supporters, engulfing the country.

Demonstrators blocking the traffic on a highway crossing the city during a protest against plans by Netanyahu’s government to overhaul the judicial system, in Tel Aviv, on Monday.Credit…Oded Balilty/Associated Press

“If the court dismisses the petitions, that could deflate the protests” against judicial overhaul, said Adam Shinar, a law professor at Reichman University in Herzliya, Israel. “But if the court acts against the government, that will inflame its critics. So you have all these strategic political considerations.”

Law and politics inevitably become entangled when a high court is faced with a serious challenge to its own authority, other analysts said.

“In these potentially revolutionary moments, it’s really unclear what courts should do,” said Kim Lane Scheppele, a sociologist at Princeton University. “There are two theories. One is that the court should strike back hard against the government. But this can risk confirming the perception that the court is out of control. So the other theory is that the court should be cautious and follow the law to show the criticism is exaggerated. And then maybe that makes the government back off.”

But in Israel the justices have never faced a challenge from the government like this one.

Monday’s bill says the court may no longer use the legal standard of “reasonableness” to overturn government decisions. It was enacted as an amendment to one of Israel’s Basic Laws, which the justices have never previously struck down.

Israel was founded in 1948 without a constitution. Ten years later, the Knesset began passing what are known as the Basic Laws, at first to set forth the powers of the country’s governing bodies. Originally, Basic laws, which can be passed by a simple parliamentary majority, were not necessarily superior to other laws. Then in 1992, the Knesset passed a Basic Law that guaranteed dignity and liberty. Supreme Court Justice Aharon Barak, one of the country’s most influential jurists, proclaimed a “constitutional revolution,” and the court established the supremacy of the Basic Laws and gave judges more sway to interpret them.

Israel’s Prime Minister Benjamin during a parliament session in Jerusalem on Monday.Credit…Ronaldo Schemidt/Agence France-Presse — Getty Images

Since then, the court has laid out paths for striking down a Basic Law without actually doing so, legal experts said. “For example, the court said that it could strike down a Basic Law if it impinges on the core nature of Israel as a Jewish and democratic state,” said Professor Shinar of Reichman University.

If the justices do not want to strike down a Basic Law now, they could narrowly interpret the limit on the reasonableness standard by using another standard they have developed — for example, that of “proportionality,” or evaluating the fit between the means and the ends of a statute and its costs and benefits.

“Proportionality is a balancing test,” said Rivka Weill, another law professor at Reichman University. She added: “It’s not like the government has taken away all the power of judicial review.”

The current petitions before the court challenge the law in the abstract, and so the judges could decline to hear those cases, and wait for a concrete case to accept for review. One such case could materialize if, as Mr. Netanyahu’s critics fear, the government tries to replace the attorney general, Gali Baharav-Miara, who is overseeing the prime minister’s prosecution in a continuing corruption case.

Mr. Netanyahu has denied any plan to disrupt his trial. But if the government removed Mr. Baharav-Miara, it would “cross a red line for the court,” Professor Weill said. So would passing the planned bill to give the government control over how judges are selected, she added.

Israel’s Attorney General Gali Baharav-Miara arriving to the weekly cabinet meeting at the prime minister’s office in Jerusalem in July.Credit…Pool photo by Gil Cohen Magen

“The court will not cave on judicial independence,” she said. Either scenario would give the court a vivid set of facts for considering the elimination of the reasonableness standard, which would be its usual tool for reviewing the dismissal of a government official or a change to Israel’s system of checks and balances.

Earlier this year, the court angered its critics by holding that it was not reasonable for Mr. Netanyahu to appoint Aryeh Deri, a longtime ultra-Orthodox politician, to his cabinet because Mr. Deri had recently been convicted of tax fraud.

“It’s hard to explain in a nontechnical fashion why what the prime minister did here is unreasonable,” said Professor Scheppele, the Princeton sociologist. “The word itself seems fuzzy from its ordinary use, even though it’s a clear and constrained doctrine that other countries like Britain also use. And you might ask, why should the courts tell Netanyahu who he can have in his government?”

In other countries, the check on a chief executive’s power to appoint the members of his cabinet would not come from the courts. In the United States, for example, the Senate has the power to confirm a president’s appointees.

But the comparison isn’t apt, Professor Scheppele said. Israel lacks the checks and balances of the American system. The country does not have two houses of Congress that can block each other, or a clear separation between the executive and legislative branches, or a federalist system of states or provinces that retain significant powers.

Protesters at a demonstration following a parliament vote on a contested bill that limits Supreme Court powers to void some government decisions, in Jerusalem on Monday.Credit…Ronen Zvulun/Reuters

The fragile nature of Israel’s checks and balances explains why the stakes for judicial independence are so high in this controversy. It also means that the court can only do so much to preserve its own powers.

“You reach a point where judicial interpretation of the law runs out,” Professor Scheppele said. “A court can’t really fix what’s wrong by interpreting a Basic Law” if the government continues to undermine the court or tries to pack it with new judges. “When the threat is to the fabric of the democracy, you have to win an election and change the laws.”

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