The High Court of Justice decision to green-light Prime Minister Benjamin Netanyahu to form the next government, as well as the coalition deal between Likud and Blue and White, may have been its most important decision ever.
But the true, historic significance of that decision cannot be seen merely with the narrow lens of the legal principles that came into play in judging those issues.
Rather, the decision told us a lot about where the judicial system stands right now in its relationship with the other branches of government and with the general public – and about the longer-term battles on the horizon for the shape of Israeli democracy.
Of course, there will be battles between Blue and White and the High Court justices on one side, versus the Likud and any allies they have on the Judicial Selection Committee on the other side, over selecting several justices and a new chief justice by October 2023.
But the greatest battles will still be over whether the Knesset will finally give itself a veto over the High Court in the coming term – and whether it will, at any point in the foreseeable future, bind itself to a constitution or some permanent “rules of the game” that cannot be summarily swatted away every few years.
Until the Knesset has some way to override a High Court veto – and until the Knesset binds itself to some serious principles that a bare majority of the government cannot easily scrap – the tensions between the branches will continue.
Just as importantly, until some of these boundaries are set, the High Court will continue to be heavily impacted by public opinion in the rawest sense, and not merely in the natural way that any court made up of human beings reflects some trends of the society in which they live.
Make no mistake: Even if the court is less political than other branches, it can still be pressured by public opinion – sometimes to the Right and sometimes to the Left.
Going one step further, during the upcoming years when Netanyahu is on trial for bribery, absent creating a new set of boundaries, the attacks on the judicial branch are likely to skyrocket to new levels.
Those on one side of the spectrum will need to worry that the courts might be more likely to convict Netanyahu because of these attacks and so the justices can pave the way for a prime minister more friendly to them.
Those on the other side will need to worry that the courts may grant Netanyahu leniency out of fear that if they do not, he may radically alter and reduce the power of the judiciary.
THE DEBATE over judicial activism has been hot in both the US and Israel for some time now, since at least 1973 in the US and since at least 2006 in Israel.
In America, 1973 was the year of Roe v. Wade, the decision that legalized first-trimester abortion. In Israel, 2006 brought the retirement of Aharon Barak as president of the Supreme Court. Barak was viewed alternately as the father of Israel’s informal constitution (by fans) and of judicial activism (by detractors).
Barak used the Knesset Basic Laws in the 1990s to create an informal constitution and greatly expand the areas where the court would declare laws unconstitutional.
No counterattack could hold water while he was in office, either due to his hold on power or his singular brilliance as an interlocutor.
The last time the question of making more permanent boundaries between the judiciary and the other branches came close to Knesset legislation was in spring 2018. At that point, the Knesset actually held initial votes toward some kind of a 61-MK-vote Knesset override of the court.
However, before the bill got to any really advanced stage, Attorney-General Avichai Mandelblit and High Court President Esther Hayut had dramatic meetings with Netanyahu. They managed to convince him either not to move forward, or only to move forward if the magic number for a Knesset override was hiked up to 70 MKs.
MANDELBLIT AND Hayut’s implied agreement to a 70 vote override was likely a tactical retreat (other former justices have opposed any override without a constitution or said the override should be set at 80 MKs) based on two assumptions.
First, they recognized that their standing in public opinion was down after issuing a series of unpopular rulings regarding migrants’ rights (which the vast majority of the Israeli public has little sympathy for), as well as rulings that angered the haredi (ultra-Orthodox) political parties and other issues, and that agreeing to some kind of an override could regain them the high ground in the court of public opinion.
The general public majority is itself hard to pin down as it often disagrees with the court about striking down specific Knesset laws, but also dislikes the idea of a broad wipe out-style showdown with the court.
Incidentally, former deputy chief justice Elyakim Rubinstein in past interviews with The Jerusalem Post has said that critics ignore how many cases there have been where the courts take a backseat for years, trying to help coax rival sides to resolve their differences out of court on such issues as haredi conscription and conversion.
Sometimes, he said, the justices would literally plead with the government to resolve issues, especially those pertaining to the rights of non-Orthodox movements. But often, the government stubbornly avoided resolving such matters, Rubinstein said.
A SECOND reason Mandelblit and Hayut likely agreed to a 70 MK vote was a calculation that such an override might be a “poison pill,” since the then influential Bayit Yehudi Party would not agree to such a large number.
The 70-vote number also would mean that the coalition at the time would have needed to win over opposition MKs to use the override since it had far less than 70 MKs.
In addition, the 70-vote number had been supported by Rubinstein in previous interviews with the Post and by the committee of a former respected justice minister of Netanyahu: Yaakov Neeman.
Former justice minister Ayelet Shaked and her camp say this is too onerous. They say that it is extremely difficult to get the entire coalition of at least 61 MKs to all vote for the same thing. Requiring a 70 MK vote she says would be unrealistic and render the Knesset’s override ineffectual.
Proponents of the 70-vote number say that any time a coalition invokes coalition discipline, it can pass a law with at least 61 votes. They add that such a low vote cut-off would essentially end judicial oversight and could undermine Israeli democracy itself by reducing the judiciary’s ability to protect minority and human rights and power grabs beyond the pale.
No one wished to comment to the Post this week on the 70 MK number with the current constellation where the government itself will have a 72 MK majority.
In any event, Netanyahu decided to keep the issue potentially alive in spring 2018, but put it on indefinite pause, which took much of the air out of it.
Was Netanyahu convinced by the legal establishment? Did it just not happen because Shaked and Bayit Yehudi opposed a 70-vote override? Or did Netanyahu possibly think such a delay of the issue might get him more lenient treatment around half a year later when Mandelblit was expected to decide whether to indict him or not?
We may never know.
IN ANY EVENT, Mandelblit still indicted Netanyahu – and few observers now doubt that he would have gone to a fourth election if the High Court had disqualified him from being prime minister. Also, he would have run on a promise to bring about a 61-MK override to nix the court’s nixing him and to radically limit the judiciary’s powers.
Many on the Right were still unsatisfied with the High Court’s 11-0 vote to green-light Netanyahu because they were disturbed that the justices even viewed the issue as something they had the power to review.
Those on the Right were also upset that the justices threatened the coalition into making changes to the deal and implied that they would force some additional changes after the government is sworn in.
On the Left, the High Court is criticized as having left their legal minds at home to desperately search for any way they could to clear Netanyahu out of fear of what he would do to them if they gave him a red card.
But this is only half of the story.
Even Aharon Barak has said he would support a Knesset override if it comes as part of a constitution.
In Barak’s reading of the conflict between the branches of government, the reason that fear of the public and of threats between the judiciary and the political class play an out-sized role is because the High Court has had to invent checks and balances which most countries have set in their constitutions, their culture or both.
SPEAKING TO the Post after the High Court ruling on Netanyahu, former High Court justice and current head of the Israel Press Council Dalia Dorner said that all of the hoopla surrounding the decision, “raises the problem… that we don’t have a constitution or set rules of the game. You cannot make rules addressing a situation on the spot.”
She quoted Netanyahu himself, who had demanded Ehud Olmert resign as prime minister simply because Olmert was under investigation, but then refused to resign himself when an indictment (far more serious than a probe) was filed against him.
“The court expects the Knesset to weigh the public faith and the public’s interests – like in England – but our nation doesn’t have these concepts. In this country, anything that is not illegal, people will do it,” said Dorner.
The former justice said, “The Knesset must set some principles which they can’t change even when they want to change them.”
“I still expect in my lifetime that they will set rules in advance: Not everything should be a personal law and based on the need at the time,” with no thoughts about future implications and long-term stability, explained Dorner.
“Our democracy is weak because we have no constitution, or even a set of rules,” she said.
Maybe Dorner is on to something with the idea of a set of rules.
The Basic Laws were an attempt to slowly piece together a quasi-constitution without having to deal with all of the country’s complex issues at once.
But one reason they have failed to set clear boundaries is because they can be changed by a bare majority vote of any new government.
Even without a constitution, a set of some rules which could not be changed except by a super-majority of 70 or 80 MKs could stabilize relations between the branches, increase judicial consent to a Knesset override law and reduce public pressure on the courts in the rawest sense of the term.
But who has an interest in such rules in a new government that changed more Basic Laws for personal reasons than any other – and as the prime minister goes on trial?
At least until the Netanyahu legal saga resolves – one way or the other – the instability between the branches and the mix of public pressure into those relations will likely continue, and potentially continue to deteriorate.