This Editor’s Note was sent out earlier Wednesday in ToI’s weekly update email to members of the Times of Israel Community. To receive these Editor’s Notes as they’re released, join the ToI Community here.
Much of Tuesday’s 13-hour-plus Supreme Court hearing on petitions against the first, and so far only, law enacted in the coalition’s bid to drastically constrain the judiciary was broadcast live on Israel’s main television channels.
In addition to the precedent of having the entire 15-strong Supreme Court bench convened for the first time in the nation’s history, the extensive, live coverage was itself somewhat historic: TV channels are in the ratings business, and evidently recognized that the sight of a room full of largely drearily dressed middle-aged people discussing complex principles of law, without even the prospect of a definitive conclusion in the near future, would nonetheless prove a more riveting must-watch for a substantial proportion of the Israeli public than the usual non-primetime daily fare of singing, dancing and dating shows, cooking contests and sitcoms.
And they were right. There was little of what would count for conventional visual TV action. But the verbal equivalent was in plentiful supply. And the drama was high-stakes, indeed — a ferocious tussle for the future of Israeli democracy, with the executive summoned to justify its opening salvo in curbing judicial oversight. Summoned, that is, by the very institution it aims to subjugate.
The prime architect of the bid to give the governing majority in Israel almost untrammeled power, Yariv Levin, did not put in an appearance. Instead, he attempted to preempt the entire spectacle by declaring, shortly before the court convened, that the judges had no authority to so much as review the “reasonableness” law, and that their very readiness to hear the petitions against it constituted “a fatal blow to democracy and the status of the Knesset.” Also off-screen was Prime Minister Benjamin Netanyahu, Levin’s enabler, once a firm public supporter of our (for now) independent top court, who has conspicuously refused to promise that he will accept its ruling in this fateful case.
But the justice minister’s chief henchman, Simcha Rothman, who steamrolled the amendment to Basic Law: The Judiciary through his Knesset Constitution, Law and Justice Committee, was a prominent presence — and delivered a speech designed to insult the justices before the watching nation, deriding them as an oligarchal elite, and asserting that they were in breach of a conflict of interest in the very fact that they were sitting in judgment on legislation that harms them, and therefore could not be trusted to reach a decision untainted by personal interest.
Quite the powerhouse argument, Rothman must have thought, going in, until Supreme Court President Esther Hayut shot it down with the instant rebuttal that the court was not here to protect its own interests but, rather, those of the public, members of which could henceforth find themselves defenseless victims of unreasonable government and ministerial decisions.
And while Levin and Netanyahu were absent, they and their coalition’s legal representative was at center stage — in the robust shape of Ilan Bombach, a private attorney hired because the government’s usual representative at such hearings, Attorney General Gali Baharav-Miara, opposed the legislation as it was proceeding through the Knesset, and then issued a position urging that the court strike it down.
Bombach supplied much of the day’s most compelling drama, most notably by trashing Israel’s core foundational document, the Declaration of Independence — the 1948 framework for the nascent state, compiled while Israel was fighting for survival in the War of Independence, and, until Tuesday, widely assumed to be a guiding manifesto for our democratic and tolerantly Jewish nation and the closest thing we have, if not to a constitution, then to a consensual formula for non-extreme Israel to unite around.
For Bombach, however, the Declaration of Independence is an unrepresentative rush job — a “hastily” compiled document, endorsed by 37 unelected signatories, that cannot legally obligate future generations. Leaving aside the issues of the speed with which the Declaration was put together, and the status of its signatories, its legal centrality and weight have been legitimately debated for decades. But it plainly has a central place in Israeli law — including as a stated basis for Basic Law: Human Dignity and Liberty, which specifies: “Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.”
Bombach is not some rookie lawyer who slipped unprepared into an ill-conceived argument likely to harm his client, and he didn’t drop the subject when the justices challenged him. He is, rather, the carefully selected and carefully briefed voice of the government in this case, and he appeared to be sending a message to the nation, live on TV for all to see, about this government’s vision for Israel’s future ethos and orientation.
The justices, for their part, came across as a formidable and fairly diverse cast — not arithmetically representative of Israel’s ethnic mix, but featuring Mizrahi, Arab and substantial female representation. Six women out of the 15 — 40 percent, double the proportion in the current Israeli cabinet. They manifestly disagreed with each other on numerous occasions during the marathon session, but did so without the viciousness that characterizes our politicians’ interactions, and between them gave all petitioners and responders a civil but hard time.
Based on their questions and their discourse, a majority of the justices would appear to feel strongly that, in contrast to Bombach, Levin and Rothman’s stance, they do have the right in principle to review and strike down Basic Laws — the more so since most of these quasi-constitutional laws do not require an enlarged parliamentary majority to pass and/or amend, and, to put it mildly, do not always appear to be treated with quasi-constitutional respect by their enactors and amenders.
Whether a majority of the justices are inclining, too, to strike down the reasonableness law is harder to assess, but that they may, in a majority ruling, require the Knesset to relegislate a less draconian limitation on the courts’ use of the reasonableness standard, or void the law altogether, would appear to be a distinct possibility.
On one hand, Hayut stated tellingly that “we can’t nullify Basic Laws every other day. There would need to be a mortal blow to the basic tenets of the state as a democratic state.” But on the other, her colleague and presumed successor, Isaac Amit, warned that “democracy dies in a series of small steps.”
And there was a resonant exchange when Rothman, denying the court’s right to intervene, was asked if that would apply even were the Knesset to pass a law to hold elections only once every 10 years or to ban Arabs from voting. Rothman replied mildly that an errant government could always be ousted by the electorate. “If we make a mistake, we can correct it when we are made aware of it, and if we don’t, we can be replaced via the ballot box.”
Well, not easily Mr. Rothman if you’re limiting elections.
It is not impossible, of course, that the court will not be required to rule at all. Netanyahu insists he’s continuing to seek consensus with the opposition, and the latest set of proposals conveyed via President Isaac Herzog, and reportedly signed by Netanyahu’s own lawyer Michael Rabilo, are said to provide for the relegislation of a milder reasonableness law.
But Netanyahu has no coalition majority for a constructive, broad approach to judicial reform, and for all Benny Gantz’s readiness to partner Netanyahu in forging consensus, the National Unity party doesn’t have enough seats to compensate for Netanyahu’s implacable coalition hardliners. As has been the case from the start of this devastating overhaul process, Netanyahu cannot both foster consensus and retain power.
And thus Tuesday’s enthralling daylong constitutional drama will have many fateful future episodes, doubtless also screened at length, less edifying and civil, within the courtroom and without.