An Overview of the “Reasonableness” Case (Column 615)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

This column is lovingly dedicated to my brother, as a brother to me, Dani, may he live long.

The day before yesterday, the ruling that had been leaked a few days earlier was published, in which the High Court of Justice (HCJ) by a majority of 8–7 annulled the amendment passed by the Knesset that narrowed the reasonableness doctrine. This ruling rekindles the debate over the judicial “reform” and the relationship between the HCJ and the government and Knesset. I have written extensively on these topics in the past and will not reopen them here. In this column I wish to examine the ruling a bit—not in its details but within the broader discourse. I was asked about it on the site, and the discussion already began there. I should disclose up front that I read only a précis of the justices’ reasoning, and I am writing based on that précis. My descriptions here will be entirely general—only what I need for the conceptual discussion.

The Reasonableness Doctrine and the Law

On Wikipedia you can find a description of how the reasonableness doctrine has been used to void statutes and decisions of governmental and administrative bodies. In general, until 1980 the reasonableness ground was used rather sparingly. In 1980, in the Dapei Zahav ruling, a dispute emerged between Aharon Barak and (then-President) Moshe Landau. Barak argued that this ground should be used as an independent basis to void governmental and administrative decisions (without relying on additional grounds), provided we are dealing with objective unreasonableness (?), where there is an extreme deviation from reasonableness, particularly when there is an imbalance among various interests. This is considered an important milestone in the use of the reasonableness doctrine, since from then on it became a more dominant tool that of course gave the Court more power vis-à-vis the executive branch and administrative bodies. This was seen as part of the process of judicial activism expanded under Aharon Barak as President.

In the past year, as part of the judicial reform, a proposal arose to amend Basic Law: The Judiciary, narrowing the reasonableness doctrine. From the outset this doctrine is not used to void statutes (even in the past), and now it was narrowed so that it could also no longer be used to void decisions of ministers and the government. Yet it would still be possible to void administrative decisions of other actors on its basis. The amendment passed before the recent war (in July 2023), and it is in fact the only component of the judicial reform that succeeded in passing. The sense was that this would also be the only part to pass—that beyond it the reform was dead. This is not only my impression; commentators and Likud MKs, among others, said as much (some said it critically and angrily).

We must understand that we are dealing here with a Basic Law; therefore, the question of its validity and the Court’s authority to annul or review it are not simple questions. Nevertheless, after the law passed, several parties filed petitions to the HCJ against it on various grounds. Some addressed the legislative process (its speed, the slim majority, and so forth), some the content and consequences of the law, and more. As noted, the day before yesterday the decision was published in which the Court accepted the petitions and annulled the amendment by a majority of 8 justices to 7.

A Description of the Public Dispute

The justices faced several questions on which they had to decide: first, whether the Court has authority at all to annul a law, and in particular a Basic Law. Second, even if it has such authority—whether in this case it is justified to exercise it (that is, whether the amendment is characterized by unreasonableness that is extreme enough). And, of course, the question of the reasons (on what basis the Court has such authority, and whether that basis exists here). Because this is a precedent with dramatic significance, the outgoing President Esther Hayut decided to convene all 15 justices of the Supreme Court to hear the case (for the first time in history). The pace from hearing to judgment was very quick, dictated by the requirement that President Hayut and Justice Baron, who had already retired during the process, be able to participate in handing down the judgment (the law allows this only up to a set time, which has now arrived). The timing of publication and the rapid work pace aroused claims of a lack of objectivity by the Court and especially the President, who was accused of wanting at all costs to participate in the ruling and not leave it to panels that would serve after the two retired, for fear that such a panel would reach a different outcome (recall that the decision here passed by a single vote).

As for the positions of the sides in the public debate, many supporters of the law argue that the Court has no authority at all to annul a statute, and almost all of them hold that it certainly cannot annul a Basic Law. The claim is that the constitution and laws in general should be determined by the legislative and constituent authority, not by the Court. Judicial intervention, according to this view, harms the independence of the legislative and executive branches and the separation of powers. There is also a problem of authority, since annulment of a statute is supposed to be based on a Basic Law, whereas annulling a Basic Law appears to be an action that cannot have legal justification. Beyond that, all supporters of the law claim that even if the Court had such authority, there is no justification to use it here. They argue that the law is reasonable—or at least not characterized by unreasonableness extreme enough to justify the Court’s annulment.

By contrast, opponents of the law and especially the petitioners of course argue that the Court has authority to annul laws, and most believe that includes Basic Laws. The reason is very logical. Today the government can label any law as a Basic Law (since there is no Basic Law: Legislation), thereby preventing judicial review of it. Without a law that regulates how a Basic Law is enacted (what majority, how many readings, from when it takes effect, whether it must be re-approved in a subsequent Knesset, and so on), and what its contents should be (what cannot be labeled a Basic Law), one cannot claim superiority of a Basic Law over an ordinary law. In the current situation the government effectively has a migo that prevents annulment of any ordinary law: it could arbitrarily decide to label it a Basic Law and thus preclude its annulment. This is an absurd situation, and therefore, in my view, those who claim that in principle the HCJ has authority to annul Basic Laws are correct on this point. It is important to understand that indeed this specific law belongs naturally by its content to the Basic Laws (it should be part of Basic Law: Legislation), but it is doubtful whether its manner of enactment fits Basic Laws (the size of the majority and the nature of the process). Beyond the principled question of authority to annul Basic Laws, that same group also believes that this specific law is extremely problematic, which justifies exercising that authority here. Their claim is that the law’s very existence threatens the separation of powers and the democratic (and perhaps also Jewish) character of the state. It gives unreasonable, essentially unlimited power to the executive branch (which in our system controls the legislature without restraint) and effectively topples the last protective walls for minorities and private citizens against the arbitrariness of various state authorities.

You can see that here too, as always, our public disagreements run to the extremes. Those who think the Court has authority in principle to annul also think that here it is appropriate to apply it (i.e., that this law is extremely problematic). Conversely, those who oppose annulling Basic Laws in principle add that there is no justification to intervene in this case even if the Court had such authority in principle. To annul the law you need both assumptions, of course; but to oppose annulment, rejecting even one suffices. Nevertheless, here the dispute is for all the marbles.

Spurious Correlations

We are dealing with two almost independent questions. In brief, the question of whether the Court has authority to annul a Basic Law is not a simple one. Annulment of an ordinary statute is done on the basis of Basic Laws. Therefore, annulling a Basic Law is logically hard to digest. On what basis can a Basic Law be annulled? Seemingly this is an arbitrary usurpation of power by the Court. The principle of legality says that a governmental authority (and the Court is such an authority) may only do what the law permits it to do (whereas a citizen is forbidden to do only what the law prohibits). This Court action appears to exceed the authority granted to it by law. Of course, conversely there are the arguments we saw above (that any law can be labeled a Basic Law—at least so long as we lack an orderly process that defines this). Regarding the extremity of the proposed law, there too there is a bitter debate. Opponents claim it changes the balance of powers between the branches in a substantive way and gives the Knesset and government unlimited power. Supporters claim the Court has many other grounds for supervising legislation and governmental/administrative decisions (proportionality, due process, ultra vires, extraneous considerations, and so on). The reasonableness doctrine is scarcely necessary in any case. Therefore, narrowing it does not substantially change the balance among the branches.

At first glance these are two different questions, almost independent (though not entirely). Therefore we would expect four different groups in the population: (yes, yes), (yes, no), (no, yes), and (no, no). But in practice you will not be surprised to hear that you will find only two. In public discourse it seems that anyone who answers “yes” to the first question (does the Court have authority to annul a Basic Law) also answers “yes” to the second (is the problematic nature extreme enough), and vice versa.

It thus seems we have what I have previously called a “spurious correlation.” In various columns (1, 41, 151, 517, and many more) I explained that it points to a lack of honesty in the discourse. It appears that people subordinate their judgment to their desired outcome, and therefore answer all the questions in ways that align with their pre-chosen goal. The indication is the absence of the side groups: (yes, no) and (no, yes). Almost everyone belongs to the diagonal groups: (yes, yes) and (no, no). It seems people harness the different questions to their preferred end. Those who want to show that the law is problematic and support annulling it attack it on both planes; those who support it back it on both planes. Below I will point out further indications of dishonesty in the discourse.

A General Description of the Ruling

In the Court the situation seems a bit better. The distribution of opinions appears fully correlated with the justices’ conservative or liberal leanings. Almost none surprised us. Those known as conservatives (usually appointed by figures on the right) opposed annulling the law, and those known as non-conservatives (usually appointed by center-left figures) supported it.

But that in itself is not necessarily problematic, for annulling a law—and especially a Basic Law—is indeed a prime example of the difference between conservatives and non-conservatives. This is not a spurious correlation, though it certainly says something about appointment policy (see below). If we examine the distribution of opinions in the Court across the two questions I described (the principled authority to annul a Basic Law, and whether abolishing the reasonableness doctrine is extreme enough to justify annulment), we will get a result that does not demonstrate full correlation (there is correlation, but it is not 1). As to the principled authority to annul a Basic Law, there was fairly broad agreement among the justices (12 out of 15, and one more—Elron—half agrees). As to whether the problematic nature of the law is extreme enough to justify intervention, only eight supported that.[1] That is, five (including Elron) of those who favor authority to annul a Basic Law think this is not the case to do so. This is a side group (not diagonal), and its existence is indeed encouraging and points to integrity in the judicial debate beyond what one finds in public discourse. On the other hand, note that, as far as I saw, no justice said he disagrees in principle with annulling a Basic Law but that the situation here would justify it if it were possible. The other side group does not exist in the Court (there is a logical reason for that, though not entirely).

I will touch further on the quality and integrity of the debate, but already here it is worth noting another important point that is easy to miss: there is no justice who felt a need to annul this law but could not find the mechanism to do so. Among the justices there was only the one side group but not the other. The conclusion is that if a justice thinks a law—even a Basic Law—should be annulled, he will likely find the legal path to do so (in our case he even succeeds in justifying the conclusion that Basic Laws may be annulled. Next to such activism, every other interpretive trick pales, however creative). This somewhat undermines the conclusion about integrity in the judicial debate,[2] but we will see the significance of this later on.

The Meaning of the Slim Majority

Criticisms were not long in coming. From the right, people pointed out that the annulment was by a majority of one justice. Annulment of a Basic Law by such a majority is highly problematic. The reason is simple. There is no dispute that to justify annulling a Basic Law—if at all—it must be extremely problematic. But if 7 of 15 justices do not see it as that problematic, it is hard to claim its extremity is unequivocal. This resembles convicting in criminal law “beyond a reasonable doubt,” when only a majority of justices supports conviction and a minority does not. The very existence of a minority that would acquit is itself an indication that guilt is not beyond a reasonable doubt. A skilled justice who acquits is in itself reasonable doubt. The same applies here.

In column 327 I discussed this problem (regarding the Zadorov case). There I distinguished between two different situations: (A) Two justices claim the defendant committed murder and the third claims he did not. (B) Two justices claim the defendant committed murder and the third claims there is reasonable doubt as to his guilt. In the first case it is difficult to convict, since one justice claims he did not commit murder, which surely counts as reasonable doubt. But in the second case the dissenting justice does not claim the defendant did not commit murder, only that he has reasonable doubt (say he is 80% convinced). In that case the disagreement among the justices is about the quality of the doubt (whether it is “reasonable” or not), not about reality itself; and in such a situation it is logical and appropriate to follow the majority and convict, since by most views the doubt here is minute (not a reasonable doubt). This differs from case A, where the argument is over reality itself and not the quality of doubt.

If we apply this here, perhaps we should distinguish between a situation in which the minority holds that the problematic nature is not extreme versus one in which the minority holds there is no problematic nature at all. But I think such a distinction here is implausible. Perhaps we should distinguish between a situation in which the minority holds the problematic nature is extreme but there is no authority to annul a Basic Law, and a situation in which the minority holds the problematic nature is not extreme. Our case is the second, of course. But note that in criminal conviction the dispute is usually over factual evidence (not always, of course), whereas here the dispute is legal and value-laden. Therefore such distinctions are hard to draw here. In my view it is very reasonable to require a significant majority that sees extreme problematic nature in order to annul a Basic Law.

Let me just recall that in the debate over the reform there was hardly any disagreement that Basic Law: Legislation should be enacted, and within it to set a special majority for annulling a statute (and certainly a Basic Law, if at all). The dispute was over what majority. But there was rather broad consensus—including among opponents of the reform—that even annulling an ordinary statute requires a special majority (see for example here the President’s framework, agreed by most discussants, in which annulling a Basic Law is not possible at all). Here, clearly that was not met, and therefore it is difficult for me to accept that even if the majority of eight holds the law should be annulled, they permit themselves to do so in practice. In practice they too should agree that a special majority is required, and there was almost full consensus for that (or at least there was, until this ruling). They should have backed down after seeing the distribution of opinions.

An analogy appears in that same column, 327, regarding the debate over renewing rabbinic ordination (semikhah). There I explained that Maimonides’ innovation is that a broad consensus (in the plain meaning of his words—virtually full) of the sages of the Land of Israel is required to renew semikhah. This claim gives a built-in advantage to opponents: even the proponents (the Safed sages) understand there are opponents (the Maharlbach and his colleagues in Jerusalem); therefore they lack the required consensus and thus—even by their own logic—cannot implement their position in practice. These are situations in which the very existence of a dissenting view reflects back on my view (see that column).

Supporters of the ruling argue that the Knesset majority by which the amendment passed was also slim (indeed the exact same percentage—53%—identical down to the last decimal place to the Court’s majority: 64/120 is exactly 8/15. So who said there is no divine providence—and didn’t accept it?!). If so, there is justification to annul it by a similar majority. There is substance to this argument, but I think there is nevertheless an asymmetry between passing the law in the Knesset and annulling it in court, where the very act is the subject of a major public controversy.

Some Notes on the Discourse

Legal reporters—most of whom are blatantly cheerleaders for the judiciary (like military reporters vis-à-vis the army)—repeatedly emphasized the identity between the Knesset majority and the Court majority, as well as the fact that the authority to annul a Basic Law was recognized in this ruling by a large majority (12 out of 15; the cheerleaders usually say 13, naturally recruiting Elron to the side they prefer). This is an attempt to obscure the problem of the slim majority on the reasonableness issue itself, and here is further evidence of bias in the discourse. Each focuses on what suits him.

No need to recall here the translation of the term “reform” to “coup,” and the way “narrowing the reasonableness doctrine” is casually turned in the media and public discourse into “abolishing the reasonableness doctrine” (a much more infuriating phrase—so who cares that it’s false?!). Again, I am not enamored of the reform, nor of narrowing the reasonableness doctrine, and even less of the current horror-show coalition; but the descriptions of these issues in public discourse are disturbingly demagogic and biased. I have written more than once that such distortions harm the very goal their proponents want. They only make supporters of the reform more determined and less willing to yield to what they rightly perceive as lies and propaganda.

The Degree of Problematic Nature in the Amendment

As for myself, my view is that the proposed narrowing of the reasonableness doctrine is somewhat problematic (if only because of the general message that the government is exempt from a duty of reasonableness in its actions), but in practice it is far from problematic to an extreme degree that would justify annulment by the Court (see the minority justices’ reasoning). It certainly does not threaten our democracy or the state’s values. These are wild exaggerations. Therefore, although in our current situation the Court does have authority to annul a Basic Law in certain cases, in my opinion this was not the place to do so (see, for example, Shahar Lifshitz’s remarks here). Moreover, just as narrowing the reasonableness doctrine gives the government significant power, restoring it gives the Court significant power. Both sides here are interested parties (since they concern their own authority). True, there is little choice (who else will adjudicate?), but clearly such a situation requires double caution and sensitivity (as Justice Solberg wrote in his opinion).

A position on this matter is of course a question of balance: where the proper line lies. Many think the Court is unelected and therefore, fundamentally, its hand should be lower. But as I have written more than once, I consider it far more important to check the government than the Court, for several reasons: the government makes far more decisions than the Court (hundreds daily), and if there is no effective review of those decisions, this is a mandate for the government to do as it pleases. In addition, the government takes active decisions, while the Court at most voids them. It does not initiate on its own (it does not spend money, appoint people, etc.), and therefore cannot cause harms like a government that does not act properly. Finally, the government has far more interests (appointing cronies, transferring funds to certain places, etc.) than the Court, whose justices are appointed for life, appoint no one, and are subject to fewer interests (of course they have worldviews, but I am speaking here of biases stemming from interests).

On the other hand, the reasonableness doctrine is not very significant, since as I have explained, the Court will always find a way to void decisions and laws that, in its view, must be voided—with or without the reasonableness doctrine. On one hand, this means the legislation is not that important—but the Knesset passed it. On the other hand, the Court needs very good reasons to annul it if it is not that important, particularly since at the level of problematic nature of this law it truly lacks such substantial reasons. The examples I found in the ruling for the necessity of the reasonableness doctrine were: appointing cronies, actions by a caretaker government, and dismissing gatekeepers. All of these can easily be voided on other grounds (proportionality, extraneous considerations, due process, etc.), and in my view these examples only show that the justices do not actually manage to present a case that necessarily requires the reasonableness doctrine. Even in the past its use was usually in addition to other grounds (as with Deri). So too was my impression from conversations with legal scholars who opposed the reform even before the war. I could not extract even one clear counterexample from them. The closest was Hen Ma’anit of Haaretz (whom I mentioned in a previous column). He suggested a case where a local authority decides to place a waste transfer station next to my house, for no reason. There is no law contradicting that, and if the Court cannot void an unreasonable decision, then such a decision would stand. But of course even in that case you can void the decision due to extraneous considerations and lack of proportionality (in its harm to me), etc. Even there there is no need for the reasonableness doctrine (and in any case this is not a ministerial decision, so even after the amendment it could be voided for unreasonableness).

This joins what we saw above: when the Court decides there is justification to void a law or decision—it always finds a way to do so. We saw in the distribution of opinions that this happened even with a Basic Law like the one before us. Moreover, the very expansion of the reasonableness doctrine (in 1980) and most other grounds for voiding are expansive interpretations by the Court. There is no reason to think that in the future we will face a situation in which the Court believes there is a blatantly unreasonable decision that must be voided but will find no ground or mechanism to do so. The degree of creativity required of the Court to annul this amendment to the law is no less than the creativity that would be needed to void future laws or decisions; and we can trust the justices to find the way. The conclusion is that narrowing the reasonableness doctrine hardly changes the status quo, and at most prevents the Court from voiding a decision for which there is no other concrete ground (and even that only for government or ministerial decisions). But that, in my opinion, is entirely reasonable and appropriate. Therefore, the “extremity” of the problem in the amendment and the alleged threat it poses to democracy and the state’s character strike me as baseless claims.

Another indication is that the HCJ usually voids a decision when a concrete case is before it that presents the problematic nature of the decision in question. Here, by contrast, the Court hurried to annul the amendment without such a case before it. Why? As we have now seen, in a sober assessment it seems highly unlikely that such a case will come before it in the future (since the Court will always find a way to address it, as it did here). If so, the haste to annul the law now was not to address future problems but because it was important to them to void this law and send a political-normative message to the system and the public (perhaps a warning against continuing the reform). That is a highly problematic act as a basis for a judicial ruling.

I will go further. What is the basis for annulling this very amendment to the reasonableness doctrine? Seemingly it was done because it is unreasonable. As far as I saw, that ground does not appear by name in the justices’ reasoning; that is, no justice wrote that he was annulling the amendment because it was unreasonable (as is accepted, the reasonableness doctrine voids administrative decisions, not statutes). Be that as it may, it turns out one can void even an unreasonable statute—and certainly unreasonable decisions—without explicitly using the reasonableness doctrine. It seems to me that this ruling demonstrates its own nullity.[3]

There was another disingenuous claim in the majority’s reasoning on this point. Some minority justices wrote that there is no problem with the amendment because it can be interpreted as referring only to the broad reasonableness (that created in 1980). If so, the amendment merely returns us to the pre-change situation (and even that only regarding the government and ministers; for administrative decisions the current activist situation remains unchanged), and one cannot say that is an unreasonable situation. Against this, some majority justices wrote that such a narrowing interpretation does not accord with the language of the enacted amendment, and they argue that in its sweeping meaning it threatens democracy and the state’s values, and therefore must be annulled. That is, out of their concern to preserve the exact wording of this problematic law, they explain that it must be voided. This strikes me as utterly bizarre, for several reasons. First, the minority justices were indeed prepared to interpret it narrowly; that is an available interpretation, even if strained. And if that interpretation would leave the law intact—it should be adopted instead of annulling the law (see in column 440 on the principle of charity in interpretation). Second, I would expect those who think so to return the amendment to the Knesset and recommend changing the wording so that it voids only the broad reasonableness. But they chose to annul the law entirely. That is plainly illogical. In addition, as I wrote earlier, the creativity required to read such an interpretation into the amendment does not exceed that required to annul it (inventing various far-fetched bases for authority to annul Basic Laws, which are anchored in no statutory language—and again, in my personal view this is actually a correct claim). And it certainly exceeds the creativity that will be needed in the future for courts to void decisions under the narrowed reasonableness.

We cannot escape the conclusion that this interpretive claim by the majority justices is merely a tool to reach the decision to annul the amendment. For that purpose they are even prepared to be “orthodox” in interpreting the wording of this very problematic law, to forgo a reasonable measure of interpretive creativity, and to cling to its language even more than those who support it. That is downright absurd. I was reminded of the well-known joke about the yeshiva student who discovered he was a gentile. When his friend asked how he allowed himself to keep Shabbat (a gentile may not keep Shabbat), he answered that he always keeps a key in his pocket so that he won’t fully keep Shabbat. The friend wondered: but there is an eruv in the city! The gentile replied in astonishment: You rely on the eruv? What are you, modern-Orthodox?! In this story, the gentile becomes more “orthodox” than the Jew—only in order not to observe the law.

In the discussion on the site another claim arose: that this law is problematic specifically during war, because if our legal system is weakened then international legal bodies will feel obliged to intervene and investigate and try politicians, officers, and soldiers for their wartime actions (under the principle of complementarity in the Rome Statute). That is, it is argued that the HCJ majority’s goal was to protect IDF soldiers. This argument is remarkably tendentious. Somehow, all those who oppose the government, the reform, and these laws on substantive grounds are also more sensitive to the need to protect IDF soldiers. And those who support these laws and the government somehow tend to downplay the need to protect them. This spurious correlation begs explanation. I do not buy this claim (though it has some merit). The question is not what the law says but what the Court will do. And since the Court will continue to be activist even if the reasonableness doctrine is narrowed (use of other grounds, or a narrowing interpretation of the narrowing), I do not think international law would treat us differently.

A First Reflection Following Justice Stein: “Rock, Paper, Scissors”

Justice Stein used an argument that drew on the children’s game “rock–paper–scissors,” writing that it is not right to run a state’s system of government by the rules of that game (power struggles). But this prompted an opposite thought in me. Perhaps that is precisely the best way to balance three branches. Without that circular logic, one branch’s hand will always be uppermost. The game is thus a tug-of-war among them, each wanting to ensure that too much power is not given to the other. So instead of deciding which branch to privilege, we might think of a way to resolve the struggle by building a three-headed system without transitive power relations—just like rock–paper–scissors. In this logic each branch can act as it deems fit, then another branch will constrain or void its action. If the first dislikes that, it will legislate around the second, and so on. Once there is a three-sided cycle (yes, yes!) there is even a greater chance of reaching an equilibrium—i.e., a situation in which no branch has an inherent advantage. True, we have only two branches rather than three, which is not ideal; even here there will be an unceasing struggle—but its rules are fairly clear, and the situation will oscillate in an unstable equilibrium yet always around a reasonable balance point.

This is only a first reflection and needs refining. But that logic seems promising. Every other solution is based on granting power to one branch and relying on its goodwill not to abuse it (which likely does not really happen in any of our three branches). Think of it as stabilizing a small ball on a mountaintop. Instead of placing it precisely at the summit (the balance point), and risking that it falls entirely to one side and the balance shatters, we can allow it to vibrate back and forth around that point—so long as it remains nearby.

The Timing: Political Considerations

After the substantive discussion, it is important to touch on timing and the extra-legal considerations repeatedly raised in the debate. Many note that in wartime it is inappropriate to publish a ruling so rending and divisive (see, for example, here). I think there is definitely something to that. But in my view the timing is poor even aside from the war. The deep social rift that nearly tore us apart in the past year could now return to center stage with a vengeance. Therefore even before the war I would not have recommended publishing—and certainly not adopting—such a ruling.

Earlier I mentioned the claim that this ruling was handed down as a warning shot against continuing the reform. I explained that in my view this is unnecessary and not the Court’s role. It is unnecessary because the reform is likely dead; it is not the Court’s role because it is supposed to examine laws for what they are, not annul laws to send messages about the future. But I would add another point. In my assessment, this ruling will actually reignite the dispute over the reform in full force. It has now been made clear (beyond a reasonable doubt?) that the Court’s composition is critical to the decisions it makes, and that representation is needed in its composition. The myth of professionalism and objectivity has shattered with a bang. From this you will understand that this ruling greatly strengthens supporters of the reform, and will prompt them to renew the process after the war (here is one example among many). Now it will be clear to all that the mechanism of the Judicial Appointments Committee must be changed; in addition, it is quite reasonable now to think that perhaps the override clause should be reconsidered; and of course Basic Law: The Judiciary should set how, if at all, laws and decisions are passed and annulled. Thus, annulling the amendment does not prevent the continuation of the reform but actually returns it in full to the center of the arena and fuels its supporters. Those who wished to prevent it should have refrained from this problematic ruling.

In public debate there are also claims that the timing was compelled by the law stipulating that retired justices cannot participate in the ruling after a certain time. Against that, claims are raised (see the thread on the site) that this itself is tendentious: they rushed the hearing and the writing only so that Hayut and Baron would participate and produce the desired outcome (annulling the law). They could have proceeded at the usual pace and empaneled the next bench (without Hayut and Baron) to decide. From this they wish to show that Hayut acted to reach a pre-desired outcome rather than fairly. This claim I do not accept. Recall that Justice Minister Yariv Levin is not convening the Judicial Appointments Committee because he is dissatisfied with an appointment process that does not allow him to appoint those he wants. If so, had Hayut postponed the reasonableness case until another full bench existed, a very long delay could have ensued. Therefore, precisely here I fully understand her wish to get to the heart of the matter and reach decisions with the current composition. This does not mean she was unbiased, but it does mean her rushing the process is no proof of bias.

In general, I am under the impression that both sides in the reform dispute are behaving unintelligently. Ben-Dror Yemini wrote thus about the HCJ’s handling of the Deri case that brought the reform upon us, and now I saw he wrote similarly about Yariv Levin and Rothman’s conduct, which brought upon us upgraded judicial activism. But equally, the HCJ’s current activism may bring upon us an upgraded reform. This is the “game of chicken” (see column 287 on the same topic—teaching that “there is nothing new under the sun”). And as the saying goes: don’t be right—be wise. Of course, best is to be both right and wise.

Surprisingly, it seems that the vast majority of coalition members are now behaving with surprising statesmanship, and many of them assess that even after this ruling the reform is still a dead carcass (some say so in acceptance of reality and others as a principled stance). But I doubt that at six o’clock after the war that will still hold. I must say that the party that appears more responsible in the game right now is actually the coalition and not the HCJ. If the legislative process of the reform returns, we already know the other side’s response (Kaplan and its offshoots) will be to sell us the baseless demagoguery about the “end of democracy” and other nonsense; and all the wars we just left for the war in the south will return to full strength. This ruling has struck a match inside a powder keg, and I find it hard to understand this terrible irresponsibility by the justices who are usually very restrained and do not intervene even where intervention is warranted. Somehow I am left with the impression that this was really a political move against the current coalition. The only way the future will not deteriorate is if the coalition continues to behave responsibly after the war as well—foregoing its honor and the Court’s problematic conduct. But I doubt that will happen, and in particular I doubt the coalition’s voters will allow it; and now, it seems, that would be entirely justified from their perspective.

The reasonableness doctrine is truly the “poor man’s ewe lamb,” the only thing left from a reform that began with fanfare. Sensible people would have left it intact, if only as a peace offering to the coalition and the right. But the HCJ decided to fight with full force—without any justification—even over this ewe lamb. It reminds me of a joke and a yeshiva vort. The joke is about the Muslim caliph, the Pope, and the Chief Rabbi of the world, who convened to promote peace among religions. The imam solemnly announced they were renouncing their belief in Muhammad. The Pope said they were renouncing the Trinity. And after lengthy deliberations the Chief Rabbi proudly announced that he hoped to pass the renunciation of the second Yekum Purkan this coming Shabbat (the Reform removed that prayer because it speaks of the Exilarchs in Babylonia). And the vort is on the midrash in Hullin 139b:

Where is Haman in the Torah? “Ha-min ha-etz” (“from the tree”).

Homileticians explained the connection between Haman and the Tree of Knowledge (I once heard this in the name of R. Aharon Kotler). All bowed to Haman except Mordecai. But that one little ewe lamb tormented him to death, and he was unwilling to concede the last non-bowing person in the kingdom. This brought about his end. So too Adam, who could eat of every tree in the garden except the Tree of Knowledge—and that drove him to sin in that very matter, which decreed death upon him and all of us.

Regrettably, this ruling is the consummation of shortcomings: it is neither just (legally) nor wise (socially and politically).

[1] Incidentally, this is a classic case where the “judgment paradox” can appear (see column 257 and elsewhere): a situation in which there is a majority for each of the two questions separately that would lead to the law’s existence, and yet a majority in the bottom line to annul it. The fact that this usually does not happen hints in itself at dishonesty and spurious correlations.

[2] I previously mentioned Miriam Ben-Porat’s statement that the “grocery stores” ruling had nothing to do with worldviews and was entirely professional. But somehow the two religious justices were in favor and the three secular ones against. And so with many other legal disputes, chiefly on religion-state issues, all of which mirrored exactly the justices’ a priori value conceptions. There is almost no exception. Again, this is perfectly legitimate—only the naïve think rulings are not influenced by a justice’s worldview and values—but the justices themselves repeatedly deny it, and they know why. If indeed this is the conclusion, it is fitting to build a judicial appointment mechanism that takes worldviews into account and not only professional considerations. This brings us straight to the demand for “representation,” so loathed by the Supreme Court justices.

[3] When the Court came to annul the law, it was still in force (until annulled). That is, when it sat to hear the case, the reasonableness doctrine had been narrowed, and it returned to its original state only as a result of the decision. One may wonder how it is possible to annul it itself on the ground that it is unreasonable, so long as the reasonableness doctrine itself is not in force. It seems to me this itself is use of the reasonableness doctrine (and to annul a statute, not only an administrative decision—which is really not customary and not reasonable). There is some logical problem here (though it can be resolved with difficulty), but it follows that the reasonableness doctrine is not necessary in order to annul a law or decision that ought to be annulled.