The Supreme Court of Israel’s Judicial Decision Risks Unnecessary Turmoil

Edited by: TJVNews.com

Israel, in the midst of a wartime unity government and facing external threats, finds itself entangled in a controversial judicial decision that risks destabilizing the nation. The Supreme Court’s hasty move to strike down the “reasonableness” law passed in July has stirred concerns about the potential consequences of rushing a significant legal decision during a period of heightened tension.

The concept of “United we win” has been a prevailing slogan on the Israeli home front, symbolizing a unified front against external threats. However, the recent 8–7 decision by the Supreme Court to overturn part of a Basic Law, comparable to a constitutional amendment, raises questions about the timing and prudence of such a move. This decision marks what can be termed as Israel’s second “judicial revolution,” with potential ramifications for the delicate balance between the judiciary and the political sphere.

The first judicial revolution in the 1980s and 1990s, led by Chief Justice Aharon Barak, expanded the court’s powers to interfere in political decisions, as was reported by the Wall Street Journal. However, at that time, Chief Justice Barak pledged to rule “in complete subservience to the words of the Basic Laws,” emphasizing the supremacy of these foundational legal principles. The recent decision indicates a departure from this commitment, as the justices now not only evaluate when regular laws violate the rules but also define the rules themselves.

Chief Justice Esther Hayut, in justifying the court’s newfound powers, referred to the principles of Israel’s Declaration of Independence. However, the hurried nature of the decision, particularly during a period of wartime unity, raises concerns about the potential impact on the nation’s stability, as was noted in a recently published editorial in the NYT. The decision comes at a time when the Israeli home front should ideally prioritize unity, given the external threats facing the country.

The timing of the ruling is particularly noteworthy, as two justices, Hayut and Anat Baron, who played a role in the decision, retired in mid-October. Their ability to influence decisions is limited until mid-January, creating an unusual scenario where outgoing members cast significant deciding votes during a period of conflict.

The concerns expressed by critics highlight the potential for divisiveness and internal strife at a time when national unity is crucial. The WSJ editorial opined that delaying such a contentious decision and fostering a sense of cohesion within the nation would likely have served Israel’s interests better, especially considering the impending retirement of key justices.

If the government were to exhibit a similar disregard for institutional conflicts of interest, rushing past them during wartime, it is conceivable that the court would have deemed such actions “unreasonable.” The irony lies in the fact that the very institution tasked with upholding the principles of justice and fairness is now facing scrutiny for its own hurried decision-making.

The government’s initial reform proposals faced significant public resistance, leading to only token changes passing through the Knesset. The primary alteration was the prohibition on using “unreasonableness” as the sole factor to block government decisions. However, as Justice Yael Willner points out in her dissent, the court’s standards of legitimate authority, valid process, good faith, pertinent considerations, proportionality, nonarbitrariness, and antidiscrimination would still apply to government decisions, as discussed in the WSJ editorial. The court, in essence, would not have been left defenseless against executive overreach.

Despite having other options, the court chose to reject a more measured approach. Some of the justices who claimed the right to overturn Basic Laws voted against exercising it, opting instead to interpret the new law narrowly. This would have mitigated perceived dangers while upholding the principle of judicial review. However, the majority chose to take an uncompromising stance, potentially harming the judiciary’s standing in the long run.

The timing of the decision during a wartime unity government is particularly concerning. Critics argue that the court’s actions, while rewarding in the short term, may contribute to domestic disorder, undermining the ongoing war effort and potentially emboldening groups like Hamas and Hezbollah.

In the aftermath, the court may find that its decision has not only killed a politically stagnant reform package but also harmed its own reputation. Benny Gantz, a key political figure and potential future Prime Minister, has expressed the need to reevaluate the relations between branches of government post-war. Gantz’s call for a new “Basic Law: Legislation” that anchors the status of Basic Laws may find broad consensus—a consensus that the government lacked before and that the court failed to achieve with its unwarranted wartime decision.

In the pursuit of judicial authority, the Supreme Court risks losing public trust and exacerbating existing divisions. A more judicious approach that prioritizes unity and stability, especially during times of conflict, would have better served the interests of Israel and its citizens. The court’s decision raises fundamental questions about the role of the judiciary in a democratic society and the need for restraint in wielding judicial power, particularly in sensitive political contexts.