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To sidestep right-wing pressure, High Court invites Israelis into the courtroom

The coalition deal between Likud and Blue and White has finally had its day in court. And the High Court of Justice, usually the staid and sober counterpart to the gregarious posturing of the political class, decided to put on a show.

Eight petitions were filed with the court against the deal: five demanded that the court rule Likud’s Benjamin Netanyahu unfit to serve as prime minister, the other three asked it to throw out the “anti-democratic” coalition deal.

Likud lawmakers, relishing the fight, openly threatened that any change imposed by the court would lead to a fourth election, a decisive Netanyahu victory, and new constitutional changes reining in the court’s authority.

The court was put in a difficult bind. A long-running fight over its authority was coming to a head — and at precisely the moment when profound constitutional changes were being shoved unceremoniously through an exhausted and compliant political system.

There are two competing narratives in Israeli politics about the High Court of Justice. One, held by much of the right, argues that the court regularly oversteps its authority in the service of a left-liberal worldview. The other, held by left-leaning political parties and advocacy groups, sees in the court a vital bulwark against a populist right purportedly unconcerned with democratic rights and freedoms.

Their fight has hurt the court, squeezing it between an insistent right-wing campaign that seeks to delegitimize its decisions, and an unceasing left-wing demand that it uphold liberal principles whenever the left believes said principles are threatened. Each side earnestly believes its narrative, of course: the left is convinced the right’s campaign, not the court’s decisions or activism over the years, has hurt the court’s standing, while the right insists it is the court’s fealty to the left that has diminished it.

On Sunday and Monday, both sides met before an unusually large panel of 11 justices to debate the constitutional validity of the new coalition agreement.

The agreement is a complex, sometimes sloppy rejiggering of Israel’s constitutional order. If carried out in full, it would establish a six-month “emergency government” that can veto all legislation and government action, and grant Netanyahu and Blue and White chief Benny Gantz the power to extend that “emergency” regime for as long as they like; it freezes senior appointments in the public service, including appointments that current law forbids delaying; it weakens the institution of the prime minister by handing control of half the government to an “alternate” prime minister; it even retroactively changes the results of the March 2 election, as the “skipping Norwegian law” would allow Gantz to bring MKs into the Knesset to replace those he appoints to the cabinet while skipping Yesh Atid and Telem candidates who were higher-placed on their formerly joint Knesset list.

“We don’t think the court has the authority to rule” on such provisions, many of which will be passed in constitutional Basic Laws, Likud’s representative in the deliberations, attorney Avi Halevy, told the court on Monday. After all, if the Basic Laws are a constitution, what basis can the court have to rule their stipulations “unconstitutional?”

“And what if the Knesset decides to cancel elections” via a Basic Law, wondered Deputy Chief Justice Hanan Melcer, suggesting there must be some red lines where even a conservative would welcome the court’s intervention in legislation.

“We’re not there yet,” replied Halevy.

The justices agreed. Israel’s democracy wasn’t ending, but it might be changing, and neither the right’s threats nor the left’s outrage diminished the court’s responsibility to consider some of the fraught issues raised by the coalition deal.

What’s a court to do?

‘Great cases’

One of the first axioms one learns in law school is that “hard cases make bad law.” What works in an especially complex case may not be a good rule for the majority of cases.

In a 1904 dissenting opinion, the famed American Supreme Court justice Oliver Wendel Holmes Jr. expanded that aphorism to include cases of great public interest.

“Great cases, like hard cases, make bad law,” he wrote in Northern Securities Co. v. United States. “For great cases are called great, not by reason of their importance… but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”

Courts usually don’t like to be the center of attention. The limelight can create pressures that lead to bad decisions. The more a case arouses the public’s interest, the more keen courts have been to protect their deliberations from contamination by the passions of the broader debate.

Israel’s Supreme Court justices don’t give interviews or write opeds. They don’t even publish legal writings beyond their court decisions for as long as they serve on the court.

And until last month, no television cameras were allowed into their deliberations.

No longer.

Esther Hayut changes the rules

The fears of contamination and spectacle have been overtaken by growing frustration that the court’s story was being told by others, by right-wing critics and left-wing moralists, that no one was left in the public debate to defend the court on its own terms, to argue its deliberations were earnest and exacting and its concerns legal rather than political.

And so Chief Justice Esther Hayut embarked on a “pilot” project in mid-April to broadcast many of the court’s hearings and deliberations to the outside world — just in time for the most contentious and politically significant hearings in the nation’s recent history.

The result has been a revelation. For the first time, Israelis could watch the proceedings in their entirety.

They watched the justices push back against all sides, saw their frustration with the sloppiness and grandstanding of the left-wing petitioners and their pinpoint questions to the representatives of the right that forced unexpected compromises.

Again and again, the justices interrupted attorneys’ speeches prepared not for the courtrooms but for the cameras.

“I know this honorable court has already said that ‘the land shall be filled with the law,’” quipped Netanyahu’s representative, attorney Michael Rabello. It was a riff off the verse in the biblical book of Isaiah that reads, “for the land shall be filled with the knowledge of the Lord, as the waters cover the sea.”

But no court ruling ever filled the land with the law. That phrase, expressing unabashed support for almost unlimited judicial activism, was coined in an article penned by former chief justice Aharon Barak after he left the court.

“The court never said that,” Hayut shot back, accurately.

“It did,” insisted Rabello.

“It did not and it’s a shame the gentleman is turning to populism,” Hayut replied.

Rabello, realizing his posturing had backfired — even his supporters must acknowledge his facts were wrong — quickly changed the subject.

The justices were just as unforgiving with the petitioners.

When attorney Eliad Shraga of the Movement for Quality Government tried to quote from former chief justice Meir Shamgar’s opinion in the 1990 Jerjevsky case concerning judicial review of coalition agreements, Hayut and Melcer chimed in simultaneously to note that Shamgar wasn’t on the panel that heard the case. Shraga was left visibly bewildered.

When attorney Dafna Holz-Lechner, another petitioner, questioned the intentions of Likud and Blue and White in signing the deal — “if this is a time of emergency, why do they say that if the court has some criticism then we’re all going to elections?” — it was Justice Menahem Mazuz, considered among the more activist judges on the court, who interrupted and chided her for raising an “ethical, public question, not a legal argument.”

And when another petitioner slammed the coalition agreement for altering the constitutional Basic Law: The Government for momentary political gain, it was Mazuz again, a former attorney general and legal adviser to the government, who dismissed the argument, noting that “the Basic Law: The Government has always been subject to changes according to political necessity. There’s nothing new in that.”

“We asked yesterday, and we’re asking again today, please, spare us these populist arguments,” an exasperated Hayut said on Monday afternoon.

‘Then why is it in the agreement?’

As Monday’s discussion progressed, Hayut’s publicity strategy came into focus. Something more important was happening than the justices’ evisceration of the attorneys before them for sloppy legal work or grandstanding.

The right, led by Netanyahu, had threatened to weaken the court if it struck down anything at all in the coalition agreement. The left seemed eager to force the court over that precipice. Hayut responded by opening up her courtroom to the cameras — by turning, in effect, to the public.

The cameras offered a new source of leverage for the chief justice, delivering the first real chance for Israelis to hear serious challenges to the problematic agreement, and to hear the agreement’s proponents attempt to respond.

In fairly short order, Likud and Blue and White both promised to amend parts of the supposedly unchangeable agreement.

When the perturbed justices asked Netanyahu’s attorney Rabello why his client felt the need to shut down legislation in the Knesset (“What’s the connection between the coronavirus emergency and the Knesset’s power to legislate?”), Rabello’s contortions ended with the first signal from Likud of a willingness to compromise.

“We do intend to allow legislation during this period,” he assured the court — on the record and in front of the cameras.

“Then why is it in the agreement?” asked Hayut.

The justices asked Blue and White’s representative, attorney Shimon Bar-On, how the party could justify the “skipping Norwegian law,” which allowed people into the Knesset in an order different than what the voters approved on election day. Didn’t that amount to retroactively changing the voter’s decision, asked Melcer.

It was Bar-On’s turn to struggle with a response. And Likud, ever helpful, to offer to remove the “Norwegian law” from the agreement if Blue and White agreed.

It was a different tack from Likud’s repeated insistence, including on Monday night, that any change to the agreement could bring about its collapse and send Israel tumbling to elections.

The right has often warned that the court’s activism was creating a time bomb of public anger and frustration that would eventually explode in the court’s face. Public opinion, it said, would force a change in judicial policy.

But maybe the opposite is true as well. Hayut wants to avoid a confrontation with the political echelon while still reining in the constitutional fallout of their politicking. Perhaps two can play at the public opinion game. When it comes to earning the public’s trust, the justices, now visible, may have the advantage.

Header: Eleven justices of the High Court of Justice attend a hearing on petitions filed against the proposed government, at the Supreme Court in Jerusalem on May 3, 2020. (Yossi Zamir/Pool)

Original: Haviv Rettig Gur -TOI