Israel’s Supreme Court is poised to overturn the first of Prime Minister Benjamin Netanyahu’s judicial reforms by an 8-7 margin, according to a leaked version of the decision that is set to be handed down formally on January 12.
The reform is a change to one of Israel’s so-called Basic Laws, stripping the judiciary of the ability to overturn legislation or state action on the basis of “reasonableness.” Critics say that the “reasonableness” standard is subjective and allows unelected judges to rule on the basis of their personal views.
Of all the reforms initially sought by Netanyahu’s conservative government, the end of the “reasonableness” standard was the most moderate, and widely accepted. It passed the legislature, or Knesset, on a party-line vote after months of opposition protest.
A left-wing group that helped organize protests in the streets of Israeli cities, and which has received funding from the U.S. State Department, challenged the new reform. Netanyahu’s government protested that the Supreme Court lacks jurisdiction to overturn Basic Laws, which are the source of the courts’ own authority.
In a sign of the dysfunction within the Israeli judiciary that Netanyahu’s reforms sought to address, the draft opinion of the majority rested its argument on the idea that proponents of the judicial reform should have won a bigger majority, the Times said:
In her written opinion in favor of striking down the legislation, as reported by Channel 12, former Chief Justice Esther Hayut — who retired a month after the hearing — was quoted as having written that the law “represents a deviation from the ‘outline constitution’ and therefore should have been passed with broad agreement, and not with an insubstantial coalition majority.”
There is no supermajority required for the amendment of a Basic Law, and it is inconceivable that an American court would invalidate legislation because it passed by a slim majority rather than by an overwhelming one. By the same argument, the Israeli Supreme Court’s own slender 8-7 majority should also be viewed as illegitimate because it was not closer to unanimity.
As with the Dobbs decision striking down the right to abortion in the United States, which also leaked before it was delivered, the leak of the Israeli Supreme Court’s decision was widely condemned, with left-wing groups alleging that conservatives were trying to undermine the decision before it was delivered.
It is unclear whether the Supreme Court’s decision will be accepted in any case, because it may not have authority to overturn a Basic Law. The result could be a constitutional crisis, with competing branches of government claiming ultimate authority.
Some argued that the decision should be delayed, given the divisive nature of the debate over judicial reform, and the fact that the nation needs to stay united in pursuing its war against Hamas terrorism.
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 new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. 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.