The eight Israeli justices who struck down a key part of the judicial overhaul on Monday argued that they had little choice given the law’s potential danger to Israeli democracy.
On the other side were seven dissenting justices who saw overreach in the decision to annul a law curbing the judges’ ability to use “reasonableness” as a legal standard.
Each justice wrote an opinion, with the full decision topping 250,000 words. The ruling capped a landmark case in Israeli jurisprudence. For the first time in Israeli history, the Supreme Court has struck down a quasi-constitutional Basic Law.
The justices, led by departing Chief Justice Esther Hayut, argued that the standard of reasonableness was a key tool for judges to protect against arbitrary government overreach, particularly in Israel, which lacks a formal constitution.
In her opinion, Justice Hayut said the law curbing the judges’ ability to use reasonableness as a legal standard left the public with little protection from arbitrary government policies or politically motivated decisions to hire or fire civil servants.
“Given the fragile, lacking system of checks and balances that exists in Israel, the total cancellation of judicial review on the reasonableness of government and ministerial decisions renders meaningless a substantial part of the role of the court in defending the individual and the public interest,” Justice Hayut wrote.
Yitzhak Amit, a member of the court’s more liberal wing, wrote in his opinion that Israel had almost no checks and balances against executive overreach, making tools like the reasonableness standard especially important.
Stripping judges of the doctrine “harms several cornerstones of jurisprudence and democracy: the rule of law, the right of due process, the separation of powers,” Justice Amit wrote. “Given the heavy democratic deficit in Israel, as described above, such a cancellation of the reasonableness doctrine has much greater weight here than in other countries.”
In determining the case, the judges first had to agree that they could exercise judicial oversight over a Basic Law. The laws, which lay out the functioning of government and enshrine some fundamental rights, have been enacted piecemeal for decades in lieu of a formal constitution.
In court, the government’s lawyers and allies charged that the judges had no basis for exercising such power over Basic Laws, which enjoy a special status. The court ultimately overwhelmingly ruled they did have such authority.
Even Alex Stein, a conservative justice, concurred with Justice Hayut and the 10 other justices that the Supreme Court had the right to curb the hitherto unbounded power of Israel’s Parliament, or Knesset, to pass quasi-constitutional Basic Laws.
“The Knesset never received the authority to pass any law it pleased,” Justice Stein wrote in his ruling, adding that the legislature had to abide by Israel’s founding values as expressed in its declaration of independence.
But Justice Stein ultimately argued that while the law canceling the reasonableness doctrine could have been “better framed than it was,” he did not find that the court was obligated to strike it down. The current reasonableness doctrine was a judicial innovation from the 1980s, he said, and returning to not using it “violates no constitutional norm.”
For Noam Sohlberg — widely viewed as one of the court’s most conservative jurists — there was “no complicated question, the answer is ready-made before us.” He argued that the court had no right to review any of the Basic Laws passed by Parliament, denouncing such arguments as “frail legal constructs.”
The decision to strike down the law was carried by a razor-thin majority of eight justices in favor with seven opposed. But two of the justices with the majority — Justice Hayut and Justice Anat Baron — heard the case immediately before they retired in October, leaving them just three months to rule according to the law.
“It’s a small and fragile majority. Two of those justices are no longer presiding in the court — and today’s court would likely have a majority take the opposite view,” said Yedidia Z. Stern, a law professor who was involved in talks to broker a compromise on the judicial overhaul.
