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Israel’s Thin-Skinned Supreme Court Messes Up Twice

The country’s top legal authority compounds its worrisome anti-democratic tendencies by showing it is deaf to the national mood

Gadi Taub
January 16, 2024
President of the Israeli Supreme Court Esther Hayut, at center, and judges assemble to hear petitions against the law that blocks the court from potentially ordering the prime minister to recuse himself from office, at the court premises in Jerusalem, on Sept. 28, 2023

Mostafa Alkharouf/Anadolu Agency via Getty Images

President of the Israeli Supreme Court Esther Hayut, at center, and judges assemble to hear petitions against the law that blocks the court from potentially ordering the prime minister to recuse himself from office, at the court premises in Jerusalem, on Sept. 28, 2023

Mostafa Alkharouf/Anadolu Agency via Getty Images

If there was one positive development in the wake of the Oct. 7 horrors, it was the widespread call for unity among Israelis. People who were at each other’s throats over judicial reform, just over three months ago, are now serving together, risking life and limb united in the common cause. There’s even a “shut your mouths” video trend on social media: Reservists on active duty, recording themselves in battle gear and fatigues conveying short blunt messages, Israeli style, to journalists and politicians: “If you don’t have something unifying to say, then shut your mouths.”

But there are those who won’t shut their mouths because they don’t care about national unity. Prominent among these are our Supreme Court judges, who picked this of all times to drop two bombshells on the country’s emerging spirit of solidarity, in two controversial decisions, that are clearly political and that make little judicial sense.

Reigniting a controversy over legal reform that almost tore the country apart, in the midst of war, is bad enough. But the court did more than that. It attempted to use the war as cover for a final unilateral resolution of the country’s most controversial political question in a way that grants one side total victory and the other a humiliating defeat. It did so by striking down the only remaining element of the now-defunct reform, the constitutional amendment that forbade the court from using the “reasonableness” criterion to nullify political decisions.

Augmenting the power of judicial review to include the process of constitution-making means that the court has now appointed itself the complete master of the legislative function of government. In the process the court has offhandedly transformed Israel’s political system from a democracy into a juristocracy. As Supremre Court Judge Noam Sohlberg put it in his dissenting opinion, the court’s decision “de facto cancels the basic democratic element” of our government, “the sovereignty of the people through their elected representatives.”

Until recently, the court claimed to exercise its already vast authority of judicial review, which is unparalleled in any Western democracy, subject to the country’s Basic Laws—which function as Israel’s semiformal equivalent of a written constitution. Now, through a bizarre process of legal levitation, the court has granted itself the power of judicial review over the same Basic Laws from which it had claimed to derive its power of judicial review. Rudolph Erich Raspe’s Baron Munchausen was a parody. Our Supreme Court is a reality.

With the new judicial superpower that the judges have invented for themselves, they have created a situation in which no majority of the Knesset, not even a unanimous vote, can enact any law, about anything, if the court doesn’t approve of it, according to whatever criteria the court decides should apply. The court is now our sitting, permanent, unelected, ongoing constitutional convention. No less importantly, it has reaffirmed its power to invent more powers for itself, on a continuing basis, subject to its own reviews of itself. Forget about constitutions and Basic Laws: Israel’s Supreme Court has appointed itself to be the country’s living constitution, which is the kind of declaration that one can imagine Woody Allen issuing in Bananas.

If you think that’s as crazy as the country’s Supreme Court can get during wartime, you haven’t heard of last week’s second outrageous decision: Apparently, according to the court, the attorney general, who reports to the court, can remove Benjamin Netanyahu from the premiership at will, without the tedious bother of legal due process. This can now be done by stretching the incapacitation clause in our Basic Law: the Executive, beyond its original intention to something called “essential incapacitation.”

Now if you don’t recall hearing of essential incapacitation, that is because no such thing exists, except in the minds of Israel’s jurists. Incapacitation clauses, common in democracies, spell out what should be done when the chief executive is unable to perform his or her duties due to a mental or physical condition, such as being comatose, like Prime Minister Ariel Sharon was at the end of his career. Our former attorney general, Avichai Mandelblit, however, has invented “essential incapacitation” for cases where the prime minister appears to be physically and mentally fit to perform his duties, but is “essentially” not fit.

For example, if the prime minister is alleged to have a conflict of interest or is too busy defending himself in court against invented charges that the same attorney general indicted him on, the AG can skip the legal processes required to demonstrate his claims by suggesting to the Supreme Court that the prime minister is essentially incapacitated. Together, they can remove the prime minister, without ever winning—or bringing—a case to court, and over the objections of the government and the elected legislators.

The story of the court’s new decision is no less Munchausenesque than this bizarre new doctrine. It began in 2020 when AG Mandelblit first aired his innovative thoughts about “essential incapacitation.” Things got more complicated when, in January 2023, Netanyahu’s government presented the plan for legal reform, designed to curb the excessive powers of the Supreme Court. Netanyahu wanted to insure himself against removal by a rogue AG, in the person of Gali Baharav Miara, who is strongly associated with the anti-reform crowd. Based on that reasonable-enough concern, his coalition made the mistake of trying to beat Israel’s “judicial junta” at its own game, by amending the Basic Law: the Executive to make clear that incapacitation has no other meaning save mental or physical incapacity; and that when such a condition exists, only the prime minister himself, his ministers and the Knesset, can put the Basic Law into action.

But the court always has a pseudo-judicial trick up its sleeve exactly for such cases, where other branches of government attempt to exercise any real authority. So, it reasserted the power of the AG to remove our elected chief executive. How? Well, this time it didn’t exactly strike down the amendment; it just declared that the amendment would come into force only in the next Knesset, and that it therefore does not apply to Netanyahu.

One can close one’s eyes and imagine the Red Queen shouting “Off with his head!” Because in truth, it’s no less arbitrary. The reasoning in this decision offers a penetrating insight into the court’s utter lack of self-awareness. The amendment, the court said, was “personalized”: It was passed in order to take care of the specific personal case of Mr. Netanyahu, and is therefore not kosher.

This is, of course, ridiculous. In the first place, laws designed for the case of a specific person, though undesirable, are not unconstitutional. In the second place, the law never gave the court any authority to decide when legislation should start taking effect; the court simply arrogated that authority to itself. In the third place, the law—the amendment in this case—is not personal, but generally applicable. The court itself made that clear by approving it for all future Knessets. In fact, as legal scholar and former president of the College of Law and Business, professor Moshe Cohen-Eliya, observed, it is the court’s ruling that is personal, because while the law will be applicable to all future prime ministers, the ruling applies only to Netanyahu.

It is also transparently political. After the AG failed to hurt Netanyahu’s electoral prospects by initiating controversial criminal procedures, he came up with a new method to cancel the results of Israel’s elections. So now, besides the power to write our constitution, the “judicial junta” can nullify an election if it doesn’t like the results.

Why do all this in a time of war? There seem to be two reasons. One is that Esther Hayut, the former president of the court, had only 90 days after retirement to participate in court rulings. The decision was given a mere fortnight before that time elapsed. Without her and Anat Baron, another retiring judge, there would not be a majority among the judges to strike down the “reasonableness” amendment. Secondly, she and her associates knew that the supporters of legal reform, who wanted to limit the court’s power and now see it augmented beyond their worst nightmares, will not move against the court in the midst of a war, obeying, as all patriots should, the dictum of unity.

But public anger is seething beneath the surface. It found one expression in a cartoon by artist Or Reichert, who drew Hayut standing on a dead soldier’s body, planting a flag in the soldier’s back. While reminiscent of Israel’s flag, it is not in Israeli blue; the flag is in Hamas green, and instead of the Star of David it features the scales of justice. In other words, a political cartoon.

If you want to know how far the hubris of our court has progressed, here’s the latest: The legal adviser to the courts issued a stern letter to the paper that planned to run the cartoon, that the work was an “incitement to violence,” and therefore possibly merits criminal prosecution, a threat that was scary enough to cause the paper to remove it from its print edition. Apparently as one wit on social media put it, cartoons are a great medium for political satire, except in the cases of the Prophet Muhammad and Judge Esther Hayut.

George Orwell once said that if you want to identify where real political power resides, ask whom you are not allowed to criticize. In the case of Israel, that’s an easy enough question to answer.

Gadi Taub is an author, historian, and op-ed columnist. He is co-host of Tablet’s Israel Update podcast.