The day Israel’s highest court tried to do the impossible

The start of the hearings on the petitions against the coalition’s abolition of the reasonableness standard made for compelling viewing and had Israelis glued to their screens


President of the Israeli Supreme Court Esther Hayut and all fifteen judges assemble to hear petitions against the 'reasonableness clause' at the court premises in Jerusalem, on September 12, 2023. The petitions call to strike down the clause passed by Israel's hardline government through parliament in July, a major element of a controversial judicial overhaul that has triggered mass protests and divided the nation. The amendment limits the powers of the top court to review and sometimes overturn government decisions, which opponents say paves the way to authoritarianism. (Photo by DEBBIE HILL / POOL / AFP) (Photo by DEBBIE HILL/POOL/AFP via Getty Images)

September 14, 2023 10:36

There were so many unique and bizarre moments in the 13-and-a-half-hour-long Supreme Court session on Tuesday, in which it started to hear the petitions against the coalition’s abolishment of the “reasonableness standard”, which will remain with me and hundreds of thousands of Israelis who were glued to their televisions throughout the day.

It was a fascinating legal drama, only more compelling because it was over the future of Israel’s democracy.

It was the sight of that crowded bench, for the first time all of the 15 justices sitting squashed together on one case, butting into each other and trying hard not to knock over cups of water.

Seeing them all together on the screen, for jousting for hours with the petitioners and the government’s lawyers, was also the first time that the divides within the court, the activist, moderate and conservative wings, were out in force for all to see.

It was a day on which the Supremes almost came down among us, very conscious of the television cameras and prepared to put on a bit of a show for the Israeli public. They also exposed themselves in an unaccustomed way. It will be hard to forget the malevolent smile of Knesset Law Committee chairman Simcha Rothman as he looked straight at the judges and called them “a judicial oligarchy”.

It contrasted with the look of sheer liberation on the face of Aner Helman, the lawyer from the attorney-general’s office who for once, instead of having to defend a government policy he disagreed with, had been directed by his boss, attorney-general Gali Baharav-Miara, to support the petitioners.

And then there was the lawyer hired by the government to argue its case, instead of the absent attorney-general.

Star litigator Ilan Bombach, who is the kind of attorney who can hold his own on the Supreme Court stage and attract the limelight away from the judges, which is probably why he was chosen, rather than for his not inconsiderable legal knowledge.

But Bombach, probably because of lack of time, seemed to have arrived unprepared and was repeatedly shown up without answers to the judges’ challenges.

Surprisingly perhaps, it was one of the leading conservatives on the court, Alex Stein, who caused him the most damage with the theoretical question on the source of the Knesset’s authority to pass quasi-constitutional basic laws.

Surely, asked Justice Stein, the original source was Israel’s Declaration of Independence. Bombach, whose line of argument was that only the elected Knesset had any law-making powers, flippantly responded, “Just because 37 people hurriedly signed the Declaration of Independence, should that tie the hands of the Knesset?”

His argument had both historic and legal merit, but he had failed to realise in advance how his answer sounded, loftily dismissing the sacred Declaration of Independence in a televised proceeding with the nation watching and in his role as representative of a government seeking to make sweeping constitutional changes.

It was a mistake that he would unsuccessfully try to backtrack from and it overshadowed the government’s case.

After two and a half hours arguing that case, President Esther Hayut called time. “It’s unreasonable to give me so little time,” he weakly said.

“Don’t say ‘unreasonable,’ we’re not allowed to say that,” she said, allowing herself a joke at his expense.

This was President Hayut’s moment. With a month to go until her seventieth birthday, when she must step down from the court, she had presided over the Supreme Court’s most fateful and momentous hearing.

In the full gaze of the nation, she and her colleagues had finally forced the government’s representatives to give a full reckoning of their judicial overhaul.

For the past eight and a half months, the mild-mannered and softly-spoken judge had found herself in a role she had never sought, as protector of Israeli democracy against a radical government seeking majoritarian powers.

Back in January, she had surprised many with the fierceness of her opposition, just five days after Justice Minister Yariv Levin presented his “legal reform” in a speech where she called it “a fatal blow to Israeli democracy”.

Eight months later, facing Levin’s lieutenant Simcha Rothman’s taunts, she responded clearly: “We are not dealing with our own powers or status, but with the public interest, so that our hands are not tied in protecting the public.” She was having her day in her court.

And for all that, court insiders who claim to know the judges’ thinking say that the last thing they want is to rule in this case. “Hayut and her colleagues had their moment of glory when they heard the petitions for an entire day and the whole country watched on television,” says one jurist. “But a ruling on this case is another matter. They would much prefer a compromise which would allow them to reserve their judgment.”

Another lawyer who is a regular in front of the court said: “They have an impossible decision.

"They can’t accept what the government is doing to the court but to shoot down a ‘Basic Law’ has never been done before.

"It’s difficult to justify and would almost certainly cause a constitutional crisis with the government. This isn’t how Hayut wants to go out. The ideal outcome is now for Netanyahu and Benny Gantz to find a way out of it.”

Both men realise that they must now reach a compromise together. Netanyahu has reached the conclusion that to continue fighting for his justice minister’s grand constitutional design will drain his government’s time and energy and make it much more difficult to work with the Biden administration on the coveted deal with the Saudis.

For Gantz, now leading Netanyahu in the polls, it is crucial to prove to his potential voters that he can force the prime minister to compromise, relinquish the Levin Plan and perhaps even jettison some of his radical coalition partners.

For both of them, it is a legacy-defining moment and there are signs that they are prepared once again, despite all the suspicion lingering between them, to enter talks under President Isaac Herzog’s auspices.

If those talks succeed, President Hayut will not have to issue an earth-shattering ruling along with her colleagues and she can retire next month with her legacy intact.

September 14, 2023 10:36

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