Q&A: What is the Rabbi’s opinion on the Supreme Court ruling striking down the law reducing the reasonableness standard?
What is the Rabbi’s opinion on the Supreme Court ruling striking down the law reducing the reasonableness standard?
Question
Answer
My opinion is that this is a very, very problematic ruling.
I tend to agree that in extreme cases the Court has the authority to strike down Basic Laws for various reasons. But I really do not see why this case is extreme enough. Problematic decisions can be invalidated on other grounds, and I have not seen an example of a blatantly problematic decision that only the reasonableness standard could address.
Beyond the problem with the ruling itself, the very fact that it was handed down by a majority of 8 to 7 is doubly problematic. If there is something clearly and manifestly wrong here, it cannot come by a vote of 8 to 7. You can see how dependent it is on the Court’s composition: if it had been different by even one justice, the result would have been different. That is truly an excellent reason to change the way judges are appointed.
And at this timing—not specifically because of the war, but because of the public rift over the past year surrounding separation of powers—this is, in my opinion, a really stupid ruling.
I think this ruling has brought the late judicial reform back to life. Now we’ll once again hear about an override clause, about judicial appointments, and this time it seems it will come with self-evident justification.
Discussion on Answer
And by the way, what the Rabbi wrote—that it was struck down 8:7—is true, but it is not precise. Several of the justices who did not strike it down (if I understood correctly, four) refrained from doing so because they gave the law a saving interpretation, according to which it merely came to cancel Barak’s version of reasonableness and return to reasonableness in the original British model. The majority justices simply thought no such interpretation was possible from the wording of the law.
True, I only read the summary of the ruling, but those examples are really not convincing, as the minority justices wrote. All of these can be invalidated on other grounds without any problem. One must understand that when there is an appointment that is blatantly unreasonable, or unreasonable measures by a caretaker government, it can be assumed that improper motives are involved even without proving them. I was not convinced. Not at all.
So what? It is still 8 to 7.
If they can strike down a Basic Law on such shaky grounds, I have not the slightest doubt that they will strike down any decision they consider unreasonable, including the three types you mentioned, despite the law abolishing the reasonableness standard. In the worst case, all 15 will adopt a narrow interpretation of the abolition of the reasonableness standard, and that will be that. Everyone understands that this is what would happen in practice. Therefore this reasoning is disingenuous and gives off a strong political odor.
By the way, one or more of the minority justices wrote that one could consider striking down the law abolishing the reasonableness standard when a concrete case comes before them that requires invalidation and they are unable to do so. By the way, that is usually how the Supreme Court works. Since it is completely clear to everyone that there will be no such case (for the reasons I listed above), they preferred not to wait and to strike it down now.
I partly agree with the criticism, in the sense that I trust legal imperialism to find another remedy if there is a corrupt caretaker government or if they fire the legal adviser.
But I have to say that I get the impression this ruling also stemmed from the reform as a whole and from the salami method that was on the way (that is the impression I got from a few sentences written by some of the justices who struck it down).
That consideration is definitely not a “legal” consideration in the usual sense, but I can understand fear of salami tactics.
As for the saving interpretation, they had to decide it at the time of the petition itself and argued that it could not be fitted onto the language of the law (I admit that here I agree with the majority. The law is very unequivocal in its wording). Beyond that, Rotman himself said exactly that during the Supreme Court hearing when asked about it: not to deal with reasonableness, period. Not in Barak’s formulation, not in the original British formulation, not regarding a caretaker government, not regarding delegation of the minister’s powers, etc. Rotman was asked about this explicitly during the Supreme Court hearing. The government’s lawyer said similar things when they asked him his view of the saving interpretation (if I remember correctly).
This fear of that salami tactic is very problematic. It is not their role. When the problematic point arrives, they should intervene then, not in advance. All the more so since everyone knows that this was the first and last remnant of the dead reform. This is especially true in light of what Solberg wrote, that there is an institutional conflict of interest here (the Supreme Court is looking after its own powers). Of course there is no avoiding that, but one must be a thousand times more cautious in such a situation and not act rashly. But now, because of their foolishness, the reform may come back to life, and this time it will be justified. Absurdly enough, the fear of the dead salami tactic is what may bring upon us the continuation of the salami tactic—something that without this would not have been expected to happen.
As for a narrow interpretation, I already wrote about that. First, what Rotman says is irrelevant. What matters is the language of the law. Second, even if the language of the law is unequivocal, the Court would manage to interpret it narrowly when necessary, just as seven justices have already managed to do now. And I have not even mentioned the other grounds that can invalidate everything.
In short, nothing here holds water. This is an outrageous step by the Court, and it is evident that it is completely political. It further advances its own end and the end of public trust in it, and encourages a significant reform that perhaps alone could restore its standing.
I agree that the ruling is a shame (though I do think the original reform is completely dead and I do not see any revival for it). And all this דווקא because I truly think we have a relatively restrained court with integrity.
What I think the Supreme Court did here was make a fairly aggressive attempt to force the Knesset to enact a Basic Law: Legislation.
And as Hayut made sure to emphasize in her opinion:
It is also important to emphasize that my conclusions regarding the question of judicial review over the Knesset’s constituent authority rest on the existing constitutional situation. And as has already been clarified in this Court’s case law: “The legitimacy of judicial review is connected, at least in part, to the process that led to the constitutional amendment. That is, the more the work of the constituent authority is complex, inclusive, and comprehensive, the more democratic legitimacy its products will enjoy, and correspondingly the willingness to exercise judicial review will diminish” (ibid., paragraph 2 of Justice Baron’s opinion; see and compare: Roznai, pp. 220–219). Therefore, if in the future a rigid and unique framework is established for the enactment of Basic Laws and their amendment, ensuring that their enactment is based on broad public agreement, it will be possible to revisit the issue of judicial review regarding Basic Laws adopted under that framework. But so long as this is not the constitutional reality, I believe this Court’s authority to intervene in those exceptional cases in which the Knesset exceeded its authority as a constituent body must be recognized.
Striking down the law was necessary because of the war.
For anyone who does not know, the war is unpopular in the world and complaints have begun to be filed against Israel for war crimes.
There is a principle that prevents an external tribunal from investigating or judging if an independent court has already investigated/judged.
The crushing of the Supreme Court by Levin and Rotman leads to a situation in which even if the Court investigated and judged war crimes in Gaza, it would not be accepted internationally as an independent court, and therefore every Israeli soldier could find himself in The Hague, and of course the State of Israel would be subject to sanctions like Russia.
The Court came to its senses and restored its own power and independence so that it could protect the state and its soldiers.
Interesting that the line between those who care about our soldiers and those who do not runs exactly between conservatives and liberals, and between supporters of the protest and its opponents. The principle of complementarity is in a splendid correlation (correlation 1.00) with one’s legal-political outlook. Curious indeed!
That is not true in this case. Conservatives care about soldiers’ lives over the “human” rights of the Palestinians. The “liberals,” who as stated are progressives, only care that soldiers (that is, they themselves) should be able to travel abroad and continue living at the same standard of living they are used to, and they do not care if other soldiers die—a meaningless death—for that.
The meaning of an organism (mutual responsibility) is not only that the individual sacrifices himself for the collective, but also that the collective goes to war for the individual, just as a person would go to war with his whole body even over those who threatened only to cut off his little finger. So it is actually the conservatives who truly care about soldiers’ lives. The conservatives would bomb Gaza and kill half a million Gazans, and if necessary eliminate Hamas (which, as stated, is not the real enemy; the Gazans themselves are), without endangering even one soldier—among conservatives, when soldiers die, they die a meaningful death—a death for the Jewish people and not for the “state” (which is simply a collection of progressive bureaucrats earning high salaries and having no loyalty to the Jewish people).
Besides, the world will ignore that principle as usual and we will be put on trial in The Hague no matter what the Supreme Court does. Is the Supreme Court now going to put the entire IDF on trial for war crimes? What a joke.
Beyond that, this ruling has no legal and/or moral validity whatsoever, and no one is obligated to obey it, so nothing really happened here except exposing the inflated arrogance of the empty clowns on the Supreme Court.
By the way, if you think about it, beyond the fact that the ruling has no legal validity, those 12 judges are basically criminals and should be put on trial for sedition. Well, that will come after the reform. The Supreme Court did us a huge favor without realizing it, because this will basically be the issue in the next elections. What is the point of investigating the failure if there is no democracy here at all?
https://news.walla.co.il/item/3632869
The judges are not criminals or rebels. But the Supreme Court really did piss from the diving board, and proved to anyone who had been sitting on the fence that giving up judicial reform means giving up a significant part of democracy. Luckily for us, the people currently on the Supreme Court do not have the patience and strategic vision of Aharon Barak, who turned constitutional law upside down by the salami method. Hubris got the better of them, and they did the public-explanation work better than twenty articles by Daniel Friedmann or Gidi Sapir.
Now we need to bite our lips, fight Hamas (the real enemy, let me remind you), and after the war and the recovery from it are over, return to the reform and do it wisely this time.
In the ruling they bring several examples of problematic decisions that could be made without the reasonableness standard.
A. Corrupt appointments in the public service, where it is hard to prove improper motives.
B. Dismissal of gatekeepers.
C. Corrupt economics by a caretaker government: several of them argued that if the reasonableness standard had applied to a caretaker government, things would have been different. Their concern is that a caretaker government could make decisions that are blatantly unreasonable and populist, like corrupt distribution of funds to sectors that make up its political base. According to them this is especially problematic because a caretaker government does not enjoy the confidence of the Knesset, and this could significantly distort the election results.