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Esther Hayut’s Parting Shot

One person who did not get the message of preserving social unity is High Court President Esther Hayut


fter the defeat of Hamas and the return of the hostages, the most fervent wish of Israelis since October 7 has been that we not return to the bitter divisions of the ten months that came before. Two weeks ago, I arranged a meeting between a leading proponent of the judicial reforms and someone who was active in the opposition. Both are religious, highly intelligent, and very impressive in every respect.

In the course of the meeting, that anti-reform activist — who in the wake of the Hamas attack immediately joined with other high-tech experts to help with the logistics of getting needed supplies to soldiers and using AI to locate both hostages and those murdered — predicted that the pre-October 7 demonstrations will not return when the war is over: “Perhaps the Balfouristim [those from Tel Aviv’s Balfour Street], for whom Motzaei Shabbos demonstrations against the government are a secular Melaveh Malkah, will return. But the massive crowds that filled Kaplan Street will not. After you have lived in the same tank with someone for months in Gaza, the desire to demonstrate against them is lost.”

Let’s hope he’s right.

But one person who did not get the message of preserving social unity is High Court President Esther Hayut. Just eight days prior to her retirement from judicial service, the Court she headed struck down an amendment to Basic Law: The Judiciary passed by the Knesset that forbade the High Court from using “unreasonableness” as grounds for overruling government actions. The vote was eight justices to seven.

In the midst of Israel’s longest war since the War of Independence, Hayut chose to lob an incendiary bomb and finalize the naked power grab that began with former High Court president Aharon Barak’s declaration of a constitutional revolution on the basis of two Basic Laws passed in 1992, each with less than half of the Knesset members voting and neither commanding the support of even one-third of the Knesset members.

As works of legal craftsmanship, the majority opinions in the recent decision could not have been shoddier. As a number of commentators noted, if the sources of the High Court’s authority to strike down Basic Laws were clear, there would have been no need to spill over 700 pages of text to justify the decision. But Hayut does not speak the language of samchut (legal authority based on statute), but rather that of hatzdakah (fitting, proper, just). That is of a piece with her declaration at a legal conference that she views her role as conforming the law to the dictates of justice. About her own ability to determine what is just, as opposed to what the representatives of the population voted on, she is not plagued by any self-doubt.

Her prime justification for her decision was that once favored by parents around the world: “Because I said so.” No fewer than 62 times in her opinion did she write, “in my opinion.” When looking for a source for the High Court’s authority to strike down a Basic Law, which the Court itself has defined as having constitutional status, the best she could do was to cite six previous instances in which she or one of her colleagues has asserted as obiter dicta (incidental, non-binding judicial opinions) that the High Court has such power, even though it declined to exercise it in those cases. And when she grew tired of citing herself, she cited her predecessor as Court president and mentor, Aharon Barak.

Had the High Court wanted to avoid triggering another round of social discord, it had the means to do so. As Dr. Yaakov Ben-Shemesh, a senior lecturer in public law at Ono Academic College, pointed out, courts typically give the narrowest possible reading of a statute to preserve its constitutionality, and the High Court has employed that technique many times to avoid striking down a statute. In this case, the Court could have noted that the so-called “unreasonableness clause” amendment to the Basic Law did not affect in any respect the High Court’s ability to overrule executive or administrative actions on a host of other grounds, most notably a lack of proper legal authority for the decision in question, and therefore was of little impact on the High Court’s powers.

But Hayut has no interest in judicial diplomacy and has never heard of any of the virtues of judicial restraint outlined by the great constitutional scholar Alexander Bickel in The Least Dangerous Branch. She wanted to leave the bench with a bang and total victory in expanding the Court’s powers.

Her principal substantive objection to the Knesset’s amendment to the Basic Law on the use of reasonability as a legal standard for government and administrative actions was that 64 MKs, a majority of all MKs, is simply inadequate for the enactment of a Basic Law of constitutional status. In and of itself, that is not an unreasonable guideline for constitutional draftsmanship, though it is a rule of the High Court’s own creation. A Knesset majority should not just slap the title Basic Law on any piece of ordinary legislation it wants to immunize from judicial scrutiny. Indeed, a key provision of a compromise worked out last March between proponents and opponents of judicial reform was that no Basic Law could be enacted or amended without either a supermajority of the Knesset or the approval of two successive Knessets.

Hayut seemed blissfully unaware of how her reasoning completely undercuts the basis for her decision. For if a Knesset majority is insufficient to enact or amend a Basic Law, what are we to say of the 1992 Basic Laws passed with less than half the Knesset voting and only a little more than a quarter voting in favor? Yet those two 1992 Basic Laws constitute the entire basis of former Court president Aharon Barak’s assertion of the High Court’s power to strike down Knesset legislation, much less Basic Laws.

Further, the Basic Law on reasonability was passed after long months of debate, both within and outside the Knesset. No one voting on the 1992 Basic Laws contemplated that they were handing the High Court the right to strike down Knesset legislation. The issue is nowhere mentioned in the two statutes, and was not discussed in the debates.

And if 64 votes are insufficient to enact a Basic Law, even though the statute covering Basic Laws makes clear that they are, how can an 8-7 vote of the High Court, with two retiring judges in the majority, be sufficient to strike down a Basic Law? The aforementioned compromise, which would have recognized for the first time in statute the Court’s authority to strike down Knesset legislation, nevertheless provided that doing so would require a two-thirds majority of a full panel of the High Court.

FOR NOW, JUDICIAL REFORM appears dead in the water, with the High Court left wielding even more power than it possessed at beginning of the process a year ago. Proponents of reform have eschewed renewing the fight in the middle of a war.

Yet the power seized by the High Court over the last 30 years is so vast, and so out of sync with all international norms, that the issue is sure to rise again. Even should elections take place shortly after the conclusion of the war and the Likud-led coalition be defeated, the issue will not die.

Most Israelis know that there is something wrong with the powers the High Court has usurped without any statutory basis. Were Prime Minister Netanyahu forced into retirement, the red herring that the judicial reforms are only a means of saving Netanyahu in his ongoing trials would be removed, as would the personal animus to Netanyahu that has fueled much of the anger of the anti-reform protests.

The claim the judicial reforms were designed to further the prime minister’s personal interests was always nonsense: If anything, the reforms would have only damaged Netanyahu by raising the hackles of the judiciary, including the judges in his cases. But were Netanyahu to depart the scene, it would undoubtedly be easier to reach agreement on judicial reforms.

One of Court President Aharon Barak’s most stunning power grabs was imbuing the attorney general with new powers not contemplated in any statute. (Barak had himself served as attorney general before ascending to the High Court.) For instance, he ruled that the attorney general’s determination whether a certain governmental action was legal or not was absolutely binding on the government. If the attorney general refused to defend the government’s position before the High Court, that was the end of the matter.

Thus, in a country in which any citizen with a grievance against the government can be assured of a hearing before the High Court sitting as the “Bagatz” (Beit Din Govoha l’Tzedek) — at least after Court President Aharon Barak unilaterally did away with the traditional legal doctrine of standing in 1986 — the one party that cannot have its legal position heard is the government itself. Since every attorney general aspires to be on the High Court one day, and since the three sitting justices on the Judicial Selection Committee control the process of selection, the attorney general is effectively the High Court’s watchdog over the government.

Which brings us to a second critical decision issued by the Hayut court, in her waning days in office. The High Court did not strike down an amendment to the Basic Law: The Executive enacted by the current government, which dealt with prime ministerial incapacitation. But it said that the amendment could only go into effect in the next Knesset, because in the present Knesset it is “personal” to Prime Minister Netanyahu. That was but one more novel new power the High Court assigned to itself: the power to decide when a statute goes into effect.

Note that the amendment, which specified that the prime minister can only be declared incapacitated for reasons of mental or physical health, as determined by the Knesset, added little to the current Basic Law on incapacitation. It was enacted only because of widespread rumors that Attorney General Gali Baharav-Miara was contemplating declaring Prime Minister Netanyahu “incapacitated” to serve for not adhering to his conflict-of-interest agreement with respect to involvement in issues that might affect his trial, including judicial reform. The Knesset sought to clarify that she had no such power to decide he was unfit to serve. Hayut and friends, however, preferred to leave the Sword of Damocles swinging above Netanyahu’s head.

THE JUDICIAL REFORM PROPOSALS first introduced a little more than a year ago were generally portrayed in both the foreign and Israeli media as an attack by barbarians on an independent judiciary and a grab for unchecked power. But that is like starting the play in Act V. The reforms were rather an attempt to claw back from the High Court a small fraction of the immense power it amassed during the three-decade tenure of Aharon Barak.

In sheer brazenness, Barak would be hard to top — he jettisoned traditional legal curbs on judicial power, such as standing and justiciability, declared a constitution by prestidigitation out of two Basic Laws passed in the middle of the night, after scant debate, and with not even half the MKs present. Not for nothing did Judge Richard Posner term him a “legal buccaneer.” And in a candid moment, Barak himself might have accepted the title “enlightened despot.” (He has, after all, frequently written that the ideal judge represents the views of the “enlightened population” in which he dwells.)

True, Israel does not have all the checks and balances familiar to Americans — a bicameral legislature, federalism, and a clear delineation between the executive and legislative branches, with legislators chosen by the voters and not by party leaders. (The latter would be true of all parliamentary democracies.)

Nevertheless, to describe a Knesset majority as having potentially unlimited power in the absence of a strong High Court does not take into account the reality of coalition governments, composed of many disparate parties. No religious party, for instance, can successfully pass religious legislation that is anathema to a large chunk of Likud voters. Holding those coalitions together is frequently an exercise in herding cats.

At the same time, few, if any, of the restrictions on the power of the High Court familiar to Americans exist. By doing away with standing requirements and justiciability (e.g., the political question doctrine), the High Court has ensured that it can eventually review every government decision. As the great Israeli constitutional scholar, the late Ruth Gavison, frequently observed, no high court in the world determines every national norm to the same extent as Israel’s.

Even without actually ruling upon complaints brought to Bagatz, the High Court has its tentacles in every governmental decision through the attorney general and the legal advisors to each ministry, who view their task as predicting what Bagatz would rule.

Among legal experts, even those opposed to the specific reform proposals, the outsized power of the High Court is generally recognized. That is why, according to those close to the negotiations, compromises were reached on every one of the original proposals of Justice Minister Yariv Levin, except for judicial selection, and even there, progress was made. (For a rough outline of the compromise agreements, see Professor Moshe Koppel’s February 5 article in the Times of Israel.)

Neither Levin nor Simcha Rothman, the chairman of the Knesset Law Committee, proved an obstacle to compromise. Rather, the great obstacle was that the opposition’s legal experts could not deliver the heads of the opposition parties — none of whom would sign any agreement without the approval of Aharon Barak or Esther Hayut — and all of whom viewed the demonstrations against judicial reform as their best chance of toppling PM Netanyahu and thus their ticket to power.

Hopefully, when the dust has cleared from the current war, cooler heads will prevail and not plunge us back into the situation of October 6.


(Originally featured in Mishpacha, Issue 995. Yonoson Rosenblum may be contacted directly at rosenblum@mishpacha.com)

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