Conventional wisdom has it that within a week or two, Israel
may find itself in an unprecedented constitutional crisis since – for close to a year – Israel’s Supreme Court has not had a permanent president from among its members. The last president, Esther Hayut, retired on October 16, 2023, after reaching the age of 70.
An additional justice, Anat Baron, retired on October 12, 2023, and Justice Uzi Vogelman, current acting president of the court, is due to retire on October 5. Therefore, unless three new justices are selected and appointed soon, the Supreme Court will consist of only 12 justices, instead of the statutory 15.
This situation has emerged because Justice Minister Yariv Levin, responsible for convening the statutory Judicial Selection Committee – when new judges need to be selected or presidents of the various courts appointed – has refused to convene the committee to deal with the requirements of the Supreme Court.
The reason for Levin’s refusal must be viewed against the background of his failure to realize the judicial reform he had presented to the public on January 4, 2023 – soon after the formation of the current government. Part of his plan was to bring about a change in the membership of the Supreme Court, so that it would more accurately reflect the social and ideological makeup of Israeli society and, for this purpose, he had planned to change the makeup of the Judicial Selection Committee.
In addition, Levin planned to cancel the system of seniority, on the basis of which almost all of the presidents of the Supreme Court have been selected. The raison d’être of the seniority principle in this case – despite the fact that it completely ignores the qualifications or qualities of the justices – is to prevent politicization of the selection.
However, due to the extensive protests against the government’s judicial reform plan – which the opposition claimed to be designed to change Israel from a liberal democracy to an illiberal democracy – and the outbreak of war following the October 7 attack on Israel by the Hamas, the judicial reform came to a halt. Under the existing system and the makeup of the Judicial Selection Committee, Levin does not have the necessary majority to get either the Supreme Court president he wants or the major change in the makeup of the Supreme Court he seeks.
On July 18, the Supreme Court, sitting as the High Court of Justice (HCJ), began to deal with a petition by the Movement for Quality Government in Israel against Levin due to his stalling over the convening of the Judicial Selection Committee. Levin asked the court for time to try and reach compromises within the committee for the required selections and appointments and put forward what he referred to as a “compromise proposal.”
Levin proposed that Justice Joseph Elron – a conservative Supreme Court justice – be appointed president for a year, until his retirement in September 2025, then to be replaced by Yitzhak Amit – a liberal justice, who under the seniority system should have been appointed president last October – until his own retirement on October 20, 2028.
Most of the commentators appear to believe that Levin favors Elron being appointed president of the Supreme Court for a year because the coming year is critical for the Likud with regard to the appointment of a National Investigation Commission on the background to October 7 and responsibility for its outbreak, and Elron is much more likely than Amit to select members for this commission who will be more partial to the Likud’s basic approach on the question of responsibility.
Some have suggested that if Elron, who was the only Supreme Court Justice who supported the idea of canceling the seniority principle, were appointed president, even for a brief period, this would create a precedent, which could facilitate a permanent change in the system.
As part of his compromise, Levin proposed Aviad Bakshi and Rafi Biton as candidates to for Supreme Court justice. Bakshi is the director of the right-wing Kohelet Policy Forum’s legal department; Biton teaches at the Sapir College (Sderot) law school. Both were actively involved in preparing Levin’s legal reform. The other members of the Judicial Selection Committee would be free to select the additional two new justices.
The acting president of the Supreme Court, liberal Uzi Vogelman, rejected Levin’s proposal and complained of its content and timing, adding that despite numerous meetings held by both sides, no progress had been made. Last Tuesday, the court informed Levin that if he did not convene the Committee within the next few days – by the time the judicial year opened on September 6 – the court would publish a ruling obligating him to do so.
No one knows for sure how Levin will decide to act
Some commentators believe he will reject the court’s proposal, in which case a major constitutional crisis could erupt. Though this would not be the first time a Likud government has refused to abide by an HCJ ruling, it would undoubtedly be more dramatic than previous cases.
Others believe that though Levin is committed to his judicial reform on ideological grounds, he understands that there is a question mark over the prospect of the Likud forming the next government and being able to go ahead with the plan.
Though I differ with Levin ideologically, I happen to believe – on the basis of several constructive conversations I had with him several years ago about the book I was writing on the job of the MKs – that in the final reckoning, he is a pragmatic person, and does not seek a major constitutional crisis with ruinous consequences.
I hope I am right on this and that soon the Supreme Court will be able to operate fully manned and with a balanced makeup. Even today, believe it or not, half of the court’s justices are liberals and the other half are conservatives.
The writer worked in the Knesset for many years as a researcher and has published extensively both journalistic and academic articles on current affairs and Israeli politics. Her most recent book, Israel’s Knesset Members – A Comparative Study of an Undefined Job, was published by Routledge.