Israeli Supreme Court Turnover: A ‘Win-Win’ for the Public and for Policy
JNS.org – Rising political star Ayelet Shaked just confirmed the fifth and sixth Israeli Supreme Court justices in her short tenure as justice minister.
In a historical anomaly, within a span of only two years, six different Supreme Court justices of the 15 who sit on the court reached the mandatory age of retirement at 70 — or retired for personal reasons.
Shaked single-handedly took advantage of the opportunity to do what no right-wing government had been able to achieve in the seven decades since the state was founded: fundamentally change the makeup of Israel’s Supreme Court.
Four of the six new justices are significantly more conservative in their approaches than their predecessors.
For decades, Israel’s court has been widely known as one of the most activist courts in the Western world; some also claim that it is the body of government with the broadest powers and fewest checks on those powers.
The court regularly overturns legislation passed by the Knesset. Not bound by the interpretations of a constitution — as Israel does not have one — the high court proceeds to judge the cases it selects in accordance with a limited set of basic laws, in addition to its own set of self-determined ethos, often established on a case-by-case basis.
Until Shaked’s sweeping reform, the court has routinely replenished itself through a self-selecting process that advanced the candidacies of like-minded justices. Israel’s heterogeneous court often represented a left-wing elite minority that ruled contrary to the Israeli public’s sentiments on critical issues.
In the view of some, the court routinely favored, for example, petitions raised by a network of dangerous, nongovernmental organizations that receive funding from the New Israel Fund.
In recent years, the court has also set back critical commercial advances made by the government, and has worked to prejudice the government’s abilities to deal with difficult questions of Jewish sovereignty in the disputed Israeli territories of Judea and Samaria.
In 2016, the court set a precedent in Israeli politics by ruling that a 10-year natural-gas supply contract signed between the government, and Nobel and Delek energy companies — the conglomerate responsible for exploiting Israel’s offshore natural-gas resources — was illegal because the agreement locked the price of gas for the entire period.
The agreement provided the conditions necessary to gain the foreign investment and expertise needed to turn a once resource-starved Israel into an energy exporter. The ruling nearly derailed the government’s partnership with Noble and Delek, which had already invested billions of dollars into Israel’s gas infrastructure.
At the time, Israeli Prime Minister Benjamin Netanyahu said that “the High Court of Justice decision severely threatens the development of the gas reserves of the State of Israel,” noting at the time that “the gas is liable to remain in the depths of the sea, and the hundreds of billions of shekels will not reach the citizens of Israel.” He sharply criticized the court, stating that Israel was “seen as a state with excessive judicial interference in which it is difficult to do business.”
The court’s overturn of the agreement sent a direct message to multinational corporations within and beyond the global energy sector that a contract signed with Israel’s government was not worth the paper it was printed on — unless the court felt in its own judgement that such a contract was in the best interests of the country.
In addition to the fact that there was no precedent for such a ruling, which otherwise appeared to be out of the bounds of the court’s authority, there was similarly no legal mechanism in place to overturn or challenge the court’s ruling.
Hearing petitions on one of the most sensitive diplomatic and security issues facing the state, the court has ruled time and again in favor of plaintiffs represented by Israel’s most extreme left-wing elements that settlement housing not built on land registered to the state should be demolished, even when the houses sit well within the long-established borders of Jewish communities.
The court has refused to accept the notion that property disputes of this nature could be solved by monetary or other means, as Palestinian claimants are unable to their sell properties to Jews or receive compensation under the threat of death. It is of little interest to the court that in almost every case, the land on which the houses were built was never going to be turned over to Palestinian claimants due to security considerations.
In several settlements across Judea and Samaria, piles of rubble — the remains of houses once were filled with Jewish children — lay just meters away from houses on the other side of an invisible an irrelevant property border. Other hilltop communities have been completely removed, only to be rebuilt by the government as new entities sometimes less than a few kilometers away on state-owned land. The net effect of populations in Israel’s settlement enterprise is seemingly unaffected by each ruling, while each demolition makes international headlines with photos and video that send a message to the world that Israel’s building rights — within areas it controls militarily and administratively in the only province in the world historically named Judea (and Samaria) — are irrelevant and illegal.
Upon explaining the absurdity of one of the impending demolition cases to a senior adviser to Netanyahu several years ago, the adviser told me that while the government wholeheartedly agreed with the facts on the ground as presented by homeowners — facts that bared little interest to the court — the administration was unable to challenge the ruling unless a legal “silver bullet” could penetrate and deflate the court’s verdict.
Legislators have received legal opinions in favor of laws that would officially legalize existing settlements and halt the practice of demolishing existing Jewish home. Yet the threat that the court would overturn such legislation, and not rule according to the international community’s view of Israel’s settlements, keeps such legislation from passing.
Shaked’s successful and surprising initiative to change the composition of the Supreme Court is a tremendous win for Israel’s public and will have a profound effect on the government’s ability to advance the will of the public that voted them (and not the judges) into office.
Like Donald Trump’s nomination of Supreme Court Justice Neil Gorsuch, the Netanyahu government’s confirmation of six — yes, six — new justices will not only diminish the influence of Israel’s extreme-left elements and bring the court in line with the will of the general public, but will stand among this governing coalition’s greatest accomplishments.
Alex Traiman is the managing director of JNS.