Israel’s Supreme Court struck down the first, and most moderate, of Prime Minister Benjamin Netanyahu’s judicial reforms on Monday in a close 8-7 decision that risked dividing the country again in the midst of an existential war against Hamas terrorists.
The opposition and far left, including the U.S. State Department-funded Movement for Government Quality, celebrated the ruling and warned Netanyahu not to resist it. Netanyahu and his governing coalition said they would delay reacting until after the war.
Israel’s judiciary is the most powerful in the democratic world, and is virtually unchecked. Netanyahu and his government won an election in 2022 with a large majority, partly on the basis of a promise to reform the judiciary. Most of the proposed reforms were parallel to existing practices in other democracies. The left, relegated to the minority, took to the streets and organized massive protests that observers likened to a “color revolution,” aimed at ousting Netanyahu or at least making him completely ineffective.
The government delayed passage of the reforms to allow time for negotiation with the opposition. When talks failed, Netanyahu tried to pass the reforms piecemeal, starting with the least objectionable proposal, barring judges from striking down legislation or government action on the basis of “reasonableness,” a subjective standard that depends on the judge’s own, personal opinion.
Netanyahu had hoped to negotiate on the rest of the reforms, but the Supreme Court intervened, and Hamas attacked in October.
There were three issues at stake. The first was whether the Supreme Court had jurisdiction to hear the case at all. Israel does not have a formal constitution and has no real judicial review; the courts simply seized the power to review legislation in the 1990s.
In the absence of a constitution, Israel has relied on several Basic Laws that establish the structure of the government. But these can be amended by a simple majority vote of the parliament, or Knesset, which is how the judicial reform was passed last year.
The Supreme Court took the case eagerly, and heard oral arguments in September, before the war. Netanyahu and the coalition government said that the Court had no authority to nullify amendments to the Basic Law, from which it drew its own authority.
Ultimately, 12 of the 15 justices agreed with the argument that the Supreme Court could nullify amendments to the Basic Law, even the Basic Law governing the judiciary itself. (Conservative critics say that only underlines the need for judicial reform.)
The second issue was the judicial reform itself. The court split closely, but ultimately the outgoing Supreme Court president, Esther Hayut, ruled that “reasonableness” was appropriate, given the lack of other checks on legislative or executive power.
Part of Hayut’s argument was that the reform had only been passed by the governing majority in the Knesset in a party-line vote, suggesting it lacked broader political appeal — though there is no existing supermajority requirement for amending Basic Laws.
The third issue was whether Israel’s Declaration of Independence establishes a constitutional foundation for Israel. The document proclaims Israel shall provide equal rights for all, among other ideas, though the signatories did not think they were making law.
Hayut argued that the legislature cannot make changes that alter the character of Israel as laid down by the Declaration, though again this is a subjective standard, and the Declaration has many principles, including religious ones, from which to choose.
Curiously, Netanyahu’s government could effectively undo the ruling by passing the legislation again, because two judicial retirements have temporarily turned an 8-7 liberal majority into a 7-6 conservative majority. But it would risk public backlash.
Before the ongoing war, the Supreme Court’s decision would have led to a constitutional crisis, as the legislature faced off against the judiciary. However, Netanyahu’s government has taken the high road. Time will tell if the voters reward that sense of duty.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the 2021 e-book, “The Zionist Conspiracy (and how to join it),” now updated with a new foreword. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
This article has been updated to reflect that 12, not 13, justices said the Supreme Court could overturn amendments to the Basic Law.
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