Justices of Israel’s Supreme Court began on Wednesday what are expected to be months of deliberations on an appeal over a contentious law passed in July that diminishes the court’s own role, a day after a marathon session to hear petitioners.
The law was the first step in a plan by the government of Prime Minister Benjamin Netanyahu to restrict the influence of the Supreme Court, defying opposition movements that have organized months of protests.
Over 13 hours on Tuesday, the justices heard an appeal filed by groups opposing the law, which ruled that judges can no longer use the legal standard of “reasonableness” to overrule decisions made by government ministers.
Divisions over the government plan have led to what may be Israel’s gravest domestic political crisis since its founding 75 years ago.
The stakes could hardly be higher for Mr. Netanyahu, and for Israel. The government’s determination to press ahead with the judicial overhaul has disrupted Israel’s economy, strained Israel’s relations with the Biden administration, and led more than a thousand military reservists, a core part of Israel’s armed forces, to refuse to volunteer for duty.
Israel’s president, Isaac Herzog, has warned that the schism could lead to civil war. Mr. Netanyahu is caught between stabilizing his coalition, which includes far-right and ultra-Orthodox parties that have their own reasons for wanting to restrict the powers of the Supreme Court, and appeasing the fury of the more-liberal Israelis who oppose giving the government more control over the judiciary.
What’s at stake?
The dispute is part of a wider ideological and cultural standoff between Mr. Netanyahu’s government and its supporters, who want to make Israel into a more religious and nationalist state, and their opponents, who hold a more secular and pluralist vision of the country.
The governing coalition says the court has too much leeway to intervene in political decisions and that it undermines Israeli democracy by giving unelected judges too much power over elected lawmakers.
The coalition says the court has too often acted against right-wing interests — for instance by preventing some construction of Israeli settlements in the occupied West Bank or striking down certain privileges granted to ultra-Orthodox Jews, like exemption from military service.
Opponents fear that the measure will make the court much less able to prevent government overreach. They say that the government, unbound by independent courts, may find it easier to end the prosecution of Mr. Netanyahu, who is on trial on corruption charges.
In particular, some warn that the government would have more freedom to replace the attorney general, Gali Baharav-Miara, who oversees Mr. Netanyahu’s prosecution in an ongoing corruption case. Mr. Netanyahu has denied any plan to disrupt his trial.
Critics also fear that the changes might allow the government — the most right-wing and religiously conservative in Israeli history — to restrict civil liberties or undermine secular aspects of Israeli society.
What is the Supreme Court considering?
As part of its effort to to limit the Supreme Court’s influence, the government seeks to stop its judges from using the concept of “reasonableness” to countermand decisions by lawmakers and ministers.
The bill passed in July would strip the court of the right to use that standard when assessing decisions by government ministers.
Reasonableness is a legal standard used by many judicial systems, including in Australia, Britain and Canada. A decision is deemed unreasonable if a court rules that it was made without considering all relevant factors or without giving relevant weight to each factor, or by giving irrelevant factors too much weight.
The government and its backers say that reasonableness is too vague a concept, that it was never codified in Israeli law, and that judges apply it in subjective ways. The Supreme Court angered the government this year when some of its judges used the tool to bar Aryeh Deri, a veteran ultra-Orthodox politician, from serving in Mr. Netanyahu’s cabinet. They said it was unreasonable to appoint Mr. Deri because he had recently been convicted of tax fraud.
The bill was an amendment to a Basic Law — one of the body of laws that have quasi-constitutional status in Israel — and Israeli analysts say that the Supreme Court has so far never intervened in, or struck down, a Basic Law. The high court has discussed such laws in the past but never ruled on them.
From the judges’ questions and statements on Tuesday, it was clear that several members of the court had concerns about the law passed in July.
“The duty to act reasonably also applies to the government and its ministers,” the chief justice, Esther Hayut, said in one exchange. But if the court were barred from using the reasonableness standard, Justice Hayut added, “Who ensures that they do indeed act reasonably?”
How have the protests played out?
Powerful nonparliamentary groups — like military reservists, technology leaders, academicians, senior doctors and trade union leaders — have been trying to put pressure on the government to back down on its judicial overhaul plans. Hundreds of high-tech industry leaders said they are considering moving their businesses abroad or have already started the process.
Since the bill was passed, more than 1,000 reservists from prestigious units of the military have suspended their volunteer duty, according to reservist alliances, and doctors held a short strike.
Protesters are still gathering on Saturday nights for major demonstrations in Tel Aviv.
What’s next for the government’s plans?
Israel’s Parliament, called the Knesset, adjourned for its summer recess at the end of July and does not reconvene until October. But lawmakers from Mr. Netanyahu’s governing coalition have signaled that they intend to push forward with the next part of the process in the fall. They want to give the government greater control over the committee that selects new judges.
In July, Mr. Netanyahu suggested that his government could pursue more of its judicial overhaul plan in late November — but that he wanted to to allow time for talks about it with the opposition. There has been talk in the Israeli media about a compromise, but so far no deal has been reached.
Mr. Netanyahu’s government previously tried to take action on other parts of the plan. One measure would have allowed Parliament to overrule the court’s decisions, and another would have given the government more sway over who gets to be a Supreme Court justice. Those parts of the plan were put on pause in the face of protests, and Mr. Netanyahu has ruled out allowing Parliament to override the court. But both plans could still be revisited.
And Israel’s Supreme Court now faces a strange dilemma that could set two of the country’s branches of government squarely against each other: The high court’s justices have to decide how to handle a plan that would curtail their own power.
Gabby Sobelman and Hiba Yazbek contributed reporting.