Israel’s government is again trying to hobble its Supreme Court
For nearly a year Israel’s Supreme Court has been without a president, as the country’s right-wing government has tussled with the judiciary over the court’s powers. As soon as it was elected at the end of 2022, the government of Binyamin Netanyahu presented plans for “judicial reforms” which would limit the powers of the Supreme Court and give politicians control of the appointment of judges. The proposals prompted huge protests and were abandoned when the war in Gaza began. But they are back on the agenda.
The justice minister, Yariv Levin, has provoked the new crisis. Mr Levin wants the judicial-appointments committee, which he co-chairs, to abandon the tradition whereby the senior serving judge on the Supreme Court is appointed president. His reason? He is determined to keep the current top judge, Yitzhak Amit, a vocal opponent of his reforms, from the job.
Having tried—and failed—to change the make-up of the committee, Mr Levin has refused to convene it since the previous president retired. The Supreme Court has now ordered him to present his candidate by September 22nd and then convene the committee. So far, he has refused to do so, accusing the judges of “an unlawful usurpation of the minister’s powers”.
Mr Levin and other members of Mr Netanyahu’s government have long sought to rein in what they regard as an activist court. In the past it has overridden government decisions and laws on grounds of constitutionality. With Israel now at war, the role of the Supreme Court has become even more contentious. It is the only forum where questions about how Israel is conducting the war, such as its obligations to supply humanitarian aid to the civilian population in Gaza and the treatment of prisoners, are being investigated, a fact that has not endeared it to hardliners in the governing coalition.
The court’s president has a crucial role in scheduling such hearings, and in appointing any national commissions of inquiry. So far Mr Netanyahu has withstood public pressure to create such a body. If the prime minister were to relent, perhaps to fend off his possible prosecution in the International Criminal Court, the president would decide who is on the commission.
If Mr Levin persists in his obstructionism, the court could order the other committee members to convene without him. But that would be an unprecedented clash between the branches of government and could in turn provoke other ministers to defy legal rulings. That is already happening. Itamar Ben-Gvir, the hard-right politician in charge of the police, has proceeded with the promotion of a police officer accused of throwing a stun-grenade at protesters, despite instructions from the attorney-general and a court order to wait until an investigation is concluded.
The government and court are also at odds over a ruling to draft rabbinical students into the army and end funding for their seminaries. This is a red line for the ultra-Orthodox parties in Mr Netanyahu’s coalition and his ministers are in no rush to carry out the court’s orders.
“The Supreme Court judges created this confrontation at a time of war,” insists Simcha Rothman, chair of the law committee in the Knesset, Israel’s parliament and one of the architects of the coalition’s judicial reforms. “Instead of trying to reach a compromise with the justice minister, they are forcing a vote. This constitutional crisis is on their heads.”
Others disagree. Yaniv Roznai, an expert in constitutional law at Reichman University in Tel Aviv, says: “Beneath the radar, while the guns are firing, the government is taking advantage of the lack of attention to legal issues to try once again to achieve the objective of the legal reform—power without limits.” ■
Sign up to the Middle East Dispatch, a weekly newsletter that keeps you in the loop on a fascinating, complex and consequential part of the world.