A Coup in Review
September 8, 2023
This week seemed ripped straight from the script of a high-stakes political thriller, complete with constitutional drama and clashing ideologies. The scene is set for a showdown between Israel’s judiciary and Prime Minister Benjamin Netanyahu’s coalition, which is advancing an anti-democratic judicial coup.
In an extraordinary move, Attorney General Gali Baharav-Miara took a firm stand on two critical cases before the Supreme Court, directly opposing the government’s position — an occurrence that, while rare in the past, is becoming increasingly common.
In the case against the constitutional amendment that abolished the “Reasonableness Standard,” the Attorney General sided unequivocally with the petitioners. Baharav-Miara argued that the law effectively “shuts the courthouse doors to any individual or group harmed by extremely unreasonable governmental actions.”
Efforts to delay the proceedings were swiftly rejected. The private attorneys representing the government sought to postpone oral arguments before a historic full panel of the Supreme Court, but Chief Justice Esther Hayut promptly denied the request.
MK Simcha Rothman, a key architect of the judicial coup, failed in his attempt to disqualify Chief Justice Hayut from the case.
Rothman claimed that Hayut had already made up her mind on the matter, pointing to a speech she gave six months ago in which she criticized the judicial coup. The speech had been delivered prior to the submission of the bills of the judicial coup. The court clarified that Hayut’s pre-bill criticisms were a defense of judicial independence, not a comment on pending legislation.
Oral arguments are scheduled for Tuesday and will be live streamed on the court’s website.
In another dramatic case slated for Thursday, the Attorney General endorsed the petitioners’ argument that Justice Minister Yariv Levin must immediately convene the Judicial Appointments Committee to fill dozens of vacant judicial positions. Levin, who seeks to change the composition of the committee to enable the coalition to appoint like-minded judges, lambasted Baharav-Miara for her opposing view and opted for private representation. As a result, the Supreme Court postponed the initial oral hearing by two weeks, and it is now set for September 19.
Earlier this week, a compromise proposal entered the public discourse, which suggested an 18-month delay on the controversial bills in exchange for modification of the traditional principle of seniority in the appointment of the Chief Justice. But both coalition and opposition leaders rejected the proposal. Opposition leaders claimed that the proposal was yet another trick by Netanyahu in an attempt to postpone the court hearings.
Amid these legal maneuvers, overt threats against the Supreme Court by coalition leaders reached an unprecedented level. Speaker of the Knesset MK Amir Ohana (Likud) warned that the Knesset “will not be submissively trampled on” if the court invalidates Basic Laws. Netanyahu retweeted this threat, signaling endorsement of this sentiment. Indeed, the message of the speech was echoed by other coalition leaders repeating the claim that the Supreme Court has no authority to invalidate Basic Laws.
Although the court has never invalidated a Basic Law before, it has laid the theoretical groundwork for such a move. Prior rulings suggest that the court retains the power to invalidate Basic Laws that compromise Israel’s foundations as a Jewish and democratic state.
The stage is set for what promises to be Israel’s most consequential constitutional case to date.
Dr. Ido Baum is the legal commentator of the daily newspaper TheMarker. He is an associate professor of law at the Haim Striks Law Faculty at the College of Management in Israel and heads the Louis Brandeis Institute for Society, Economy, and Democracy. He is also a contributor to USA for Israeli Democracy.