High Court President Esther Hayut aims for a bombshell Bibi ruling

Illustration: Sivan Schwam

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No one who’s mingled with Israel’s governing elite gets over the shock at seeing the resources that go into planning their overseas trips. It seems that no luxury vacation can beat a work trip at taxpayers’ expense. If even a fraction of the meticulous attention to detail that goes into choosing flights and hotels went into the actual meetings themselves, Israel’s GDP would soar after every flight.

In that respect, Israel’s High Court justices are no different from their elected counterparts, who are always ready for a publicly funded “work trip” abroad.

The point of this lead-in is to drive home the significance of High Court President Esther Hayut’s rushed return from her official visit to Germany, the last of her tenure, along with six other High Court justices.

Every detail had been painstakingly arranged, but on the High Court president’s orders, the vacation was cut short. Hayut and her six colleagues packed their bags and returned home sooner than planned. Such a junket would not have been terminated unless Hayut saw her immediate return to Israel as the only way to stop judicial reform.

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The front line now moves from Kaplan Junction, Tel Aviv, where anti-reform protesters have gathered for the past 30 weeks, to Kaplan Street, Jerusalem, between the High Court and the Knesset. In a series of dramatic rulings presided over by Hayut, High Court justices and the Israeli government will decide together whether to plunge Israel into an unprecedented constitutional crisis.

One of the Court president’s key powers is choosing which judges will convene as a panel to hear any particular case. Meni Mazuz, who was appointed to the High Court after serving as attorney general, recounted in a candid post-retirement interview how surprised he was to discover that what he had considered a promotion was in fact a significant downgrade in terms of real responsibility.

Used to handling key national issues at his own discretion as AG, as a justice he found himself sitting on panels he hadn’t appointed, judging cases he hadn’t chosen, with his daily schedule dictated by the High Court president — like a football coach who decides which players will feature in that day’s starting line-up.

In a court divided between an activist left-wing majority and a conservative minority, the verdict in any particular case will often come down to the ideological orientation of the judges chosen to rule. But it’s not only the composition of the panel that the Court president decides, but its size as well — the president has the right to appoint a panel of three, up to 15 — the full Court.

In a consequential case, the president can appoint herself to the panel in order to set the tone throughout: in the hall and the hearings themselves, determining their timing, and of course in the verdict.

As part of the compromise talks held at the president’s residence, the right proposed that the power of deciding the composition of panels be stripped from the Court president in favor of a computer program that would choose at random. But the left rejected the proposals, and as of now, the president retains her full powers.

From her vacation in Germany, Hayut realized that the battle over the judicial reform was shifting from the streets and the Knesset to the High Court. With her full powers in hand, she entered the fray, as Netanyahu said of himself, in a statement that served the petitioners against him last week (more on that below).

Hayut’s first decision after her return from Germany was that the petitions against the reasonableness bill would be heard by a full panel of all 15 of the Court’s justices, for the first time in Israeli history.

With that, Hayut signaled that she’s angling for a dramatic ruling, her goal being to show the public that she’s giving every justice on the court say on the matter, regardless of political orientation.

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Esther Hayut will turn 70 — the mandatory retirement age for High Court presidents — on Rosh Chodesh Cheshvan, just two months from now. A retiring court president’s final ruling is usually a grave, ceremonious event, attended by all the judiciary system big-wigs.

But some Court presidents have used their final ruling to weigh in on a controversial national issue. For example, former president Dorit Beinish used her final ruling to strike down the Tal Law, which anchored the status of yeshivah bochurim. It seems that Hayut is going to send her own parting shot, torpedoing the judicial reform through the High Court.

Last week, Hayut presided over the hearings regarding petitions against the coalition’s amendment to the Basic Law: the Government, aimed at preventing Attorney General Gali Baharav-Miara from declaring Netanyahu unfit to fulfill his duties due to his legal situation.

The spirit of those hearings, as well as the expanded panel of 15 justices in the reasonableness case, testifies to the High Court president’s intention to weigh in regarding a Basic Law, for the first time in Israeli history.

And given that Israel’s Basic Laws were awarded constitutional status by High Court justices themselves, many on the right are asking more urgently than ever: Who will judge the judges?

Prime Minister Netanyahu is already bracing for a worst-case scenario. In a series of interviews to the foreign press, Bibi had a very clear message when asked if he would respect the High Court ruling in the event that they strike down the law.

“We respect the High Court, and the High Court must respect the principle of non-intervention in Basic Laws,” he responded.

In the Israel of 2023, there’s no adult in the room, and neither side can be relied on to recognize the limitations of power and pull the country back from the brink of anarchy.

Changing Fortunes

Among Israel’s High Court presidents, it’s hard to say that Hayut has left any particular mark. Her most significant impact on the Court came on the PR front: For the first time in the history of the High Court, she opened the gates to the public, with all special hearings being broadcast live from the hall on the High Court’s website.

Last week’s hearing, which was broadcast live, dealt with the recusal law, which stipulates that the prime minister can only be declared unfit to fulfill his duties on health grounds.

Just two weeks ago, Bibi bragged about his robust health and was pictured soaked with sweat after a run, or exercising at the gym in the Kiryah. In an ironic twist, Netanyahu’s health has deteriorated sharply since the passing of the law.

“They caused him ayin hara,” a source in Netanyahu’s office told me this week.

(Originally featured in Mishpacha, Issue 973)