Update: Historic Supreme Court Hearing Underway in Jerusalem
September 12, 2023
Key Points
A major Supreme Court hearing began in Jerusalem today. The case is being heard by all 15 judges of the country’s highest court, which is unprecedented.
The Court has been petitioned by multiple parties to strike down the first (and so far only) measure of the government’s proposed judicial reforms that has been passed into law.
At issue is the constitutionality of the new law that limits the Supreme Court’s power to overturn government decisions on the basis that they are “extremely unreasonable.”
Should the Supreme Court strike down the law, it would be the first time in Israel’s history that one of the country’s semi-constitutional Basic Laws will have been overturned by the Court.
Dear Friends,
As we wrote yesterday, a major Supreme Court hearing began in Jerusalem today. For the first time in Israel’s history, the case is being heard by all 15 judges of the country’s highest court. The Court has been petitioned to strike down the first (and so far only) measure of the government’s proposed judicial reforms that has been passed into law. In this case, the new law limited the Supreme Court’s power to overturn government decisions on the basis that they are “extremely unreasonable.” For details and background on the case, see Jewish Federations’ update here, and for an explainer of the “Reasonableness Standard,” see here.
While a decision in the case is not expected for a few weeks, the Court could render one at any point. In an unusual move, today’s proceedings were broadcast live, and comments and questions made by the judges are being carefully parsed to try to formulate a sense of the direction that the Court may be heading. Before the hearing began, Justice Minister Yariv Levin, (who is seen as the architect of the government’s judicial reforms), said that the court “lacks all authority to review the law.” He also called any attempt to overturn the law, “a fatal blow to democracy and the status of the Knesset.”
Should the Supreme Court strike down the law, it would be the first time in Israel’s history that one of the country’s semi-constitutional Basic Laws will have been overturned by the Court. See here for a deeper understanding of a possible constitutional crisis.
In another unusual move, the government was represented by private attorney Ilan Bombach, rather than by the Attorney General, as would typically be the case. The reason for this is that the Attorney General’s office does not agree with the government’s position, feels that the new law should in fact be overturned by the Court due to the danger it presents to Israel’s democratic nature, and has therefore refused to represent the government. See here for more on the clash between the various branches of government in Israel.
In the hearing, Attorney Bombach asserted on behalf of the government that the Knesset, as the representative of the people, had full power to legislate new laws. In response, Justice Anat Baron asked whether it would be legitimate, for example, for the Knesset to legislate that Arab citizens could no longer vote. To this point, Constitution, Law and Justice Committee head and Religious Zionist MK Simcha Rothman answered that “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.”
MK Rothman also said that the Court would be overruling the democratic will of the people if it overturned the new law. In a sharp comment, he also referred to the judges as a “privileged elite.”
Suggesting that the Court did need to act as a counter-balance to the Knesset, Justice Yitzhak Amit said that “democracy doesn’t usually die all at once. Democracy dies in small steps.” In response to that comment, Likud MK Tally Gotliv temporarily disrupted the hearing in an outburst condemning the Judge, shouting that “the Knesset sanctifies democracy and preserves it.”
In another dramatic moment, Attorney Bombach questioned the notion that the Declaration of Independence was legally binding, saying, “Because 37 people were authorized to sign the hasty Declaration of Independence, which was still in draft stage until the last moment, this should bind people who came later?” Bombach noted that the Declaration’s signatories were unelected, and that it was “unthinkable” to say the document must “bind all future generations.”
Citing the situation in the United Kingdom and in Australia, Supreme Court President Esther Hayut argued that the newly passed law restricting judicial oversight goes against a global trend toward expanding judicial review. Nonetheless, Judge Hayut said that there would need to be a “mortal blow” to democracy to justify the Court striking down a Basic Law.
As the hearing continues, the petitioners will begin presenting their arguments which focus on their position that the law threatens Israel’s democratic nature.
Jewish Federations are closely monitoring developments and will update as needed.
Rebecca Caspi
Senior Vice President Israel and Overseas
Director General, Israel Office