TEL AVIV — Immediately after Israel’s government voted to weaken the Supreme Court in July, the legal challenges started pouring in. Those petitions, eight in total, will be the subject of an unprecedented hearing on Tuesday — when the country’s highest court will consider a direct challenge to its own power.
The judicial overhaul measure, ratified on July 24, in defiance of mass street protests and warnings from Washington, was the first in a set of sweeping, fast-tracked bills intended to curb Israel’s courts. It eliminated the judicial doctrine of “reasonableness,” which the Supreme Court has invoked on rare occasions to block government decisions and appointments.
The historic nature of the case has compelled all 15 judges to be present at a hearing for the first time. The judges include secular liberals, religious conservatives, West Bank settlers and a Palestinian citizen of Israel.
Israeli Prime Minister Benjamin Netanyahu — embroiled in three separate corruption cases — has denounced the Supreme Court as an illegitimate and insular club of left-wing elitists, denying his far-right government the ability to implement its agenda. Progressive and secular Israelis fear a hamstrung court will allow extremist ministers to push through their most radical policy proposals, like the annexation of the occupied West Bank or a military exemption for the ultra-Orthodox minority.
The Supreme Court has denied two government requests to postpone the hearing, which is expected to be unusually long, possibly stretching into the evening. A decision could take weeks or months, but must be handed down by Jan. 16.
Here’s how the case could play out.
The Supreme Court upholds the law
At a conference of the Israeli Association of Public Law in January, Supreme Court President Esther Hayut said the judicial overhaul legislation “is designed to deal a fatal blow to the independence of the judiciary and silence it.”
But the law in question is known as a basic law, a protected category, equivalent to a constitutional amendment. The Supreme Court has never struck down a basic law and may be wary of setting that precedent.
The court could determine that the law does not meet the threshold for invalidation, while signaling to the Knesset that future measures more obviously in violation of democratic principles might be overturned.
The judges adopted a similar strategy when considering the nation-state law, passed by a Netanyahu-led government in 2018, which formally prioritized Israel’s Jewish character over its democratic one.
The court allowed the law to stand, but narrowed its reach, ruling that it could not be used to deny Israelis their rights as citizens.
“The implication of the ruling was that it was never used to justify discrimination, and ultimately the damage was minimized,” said Noa Sattath, the executive director of the Association for Civil Rights in Israel, which will be involved in Tuesday’s court hearing.
The Supreme Court overturns the law
The Supreme Court could decide to overturn the law on procedural grounds, pointing to the fact that it was fast-tracked to ensure passage before the end of the Knesset’s summer session, and voted through without input from critics or opponents.
The judges could provide instructions to the Knesset on how to adjust the law to be constitutionally compliant, at which point lawmakers could rework the bill or table it to pursue other parts of the judicial overhaul package.
The court could also deem the law to be unconstitutional, amounting to a fundamental breach of Israeli democracy. Under the country’s parliamentary system, in which the executive controls the legislative branch, the Supreme Court acts as one of the sole checks on government power.
Israeli Attorney General Gali Baharav-Miara said last week that “this most unusual situation” leaves the court “no choice” but to strike down the law, which she described as “a fatal blow to the foundations of the democratic system.”
Many of the petitions call on the court to consider not only the law passed in July, but the broader government push to weaken the judiciary. They cite proposals to give ministers greater control over judicial appointments, and calls to reinstate Aryeh Deri, leader of the ultra-Orthodox Shas party, to Netanyahu’s cabinet after he was declared unfit to serve earlier this year by the Supreme Court — which used the now-defunct reasonableness standard in its decision.
Several of the petitioners will argue that the government is using so-called “salami tactics” — a term believed to have been coined in the 1940s by a Hungarian dictator who passed piecemeal laws that, taken together, granted him absolute power.
But courts are not built to consider things that have not yet happened, said Issachar Rosen-Zvi, a professor of law at Tel Aviv University, allowing similar efforts to rein in the judiciary to succeed in recent years in countries like Poland and Hungary.
“The government is looking at the experiences of all the other countries going toward authoritarianism and they are saying, ‘we think we can pass this reasonableness clause, and then pass more problematic legislation,’” he said. “It’s very frightening.”
The Knesset ignores a Supreme Court reversal
Though the Supreme Court has long been a target of conservative ire, governments have always abided by its rulings. For the first time, there are real questions over whether Netanyahu and his allies would acknowledge a decision that goes against them.
If the government refused to honor the ruling, legal experts agree, it would be the start of a constitutional crisis without precedent or parameters.
The result, said Sattath, would be “anarchy.”
Netanyahu has evaded questions on the subject. But he has hinted, through his allies, that the court should not overstep its authority.
On Thursday, he retweeted a speech from Knesset speaker Amir Ohana, who said the Supreme Court “does not have the power to make decisions instead of elected officials.”
The fact that the Supreme Court hearing will take place at all, said Ohana, is a “new, dangerous crossroads that is liable to send us tumbling into the abyss.”