Irael’s Highest Court Strikes Down Contreversial Law to Curb Its Power

The much-anticipated decision is overshadowed by Israel’s continuing war with Hamas militants in the Gaza Strip. But analysts say it could have substantial consequences for postwar domestic politics, including any inquiry into the intelligence failures leading up to the Oct. 7 Hamas-led assault on southern Israel, which left about 1,200 people dead—most of them civilians—according to Israeli authorities.

By Carrie Keller-Lynn and Anat Peled
Updated January 1, 2024, 2:32 pm EST

Israel’s Highest Court Strikes Down Controversial Law to Curb Its Power
The law was a centerpiece of the judicial overhaul pursued by the Netanyahu government before the Gaza war erupted

TEL AVIV—Israel’s highest court has struck down a controversial judicial overhaul law enacted last year by the government of Prime Minister Benjamin Netanyahu that would have limited the justices’ power.
Israel’s Supreme Court ruled against a central piece of a judicial overhaul that Netanyahu was pushing before the war in Gaza erupted last October. The court struck down a law, which was passed in July and was akin to a constitutional amendment, that would have taken away the court’s powers to abrogate government decisions it deems to be “unreasonable in the extreme.”

The ruling could revive the deep political and social strife generated by the judicial reform last year, just as the country reels from the Oct. 7 attack by Hamas militants on southern Israel and is embroiled in a devastating war in Gaza.

Before the Oct. 7 attack, hundreds of thousands of Israelis came out weekly to protest against Netanyahu’s push to limit the powers of the court and give more control to the elected government.
Eight justices ruled in favor of striking down the law, with seven against.

The much-anticipated decision is overshadowed by Israel’s continuing war with Hamas militants in the Gaza Strip. But analysts say it could have substantial consequences for postwar domestic politics, including any inquiry into the intelligence failures leading up to the Oct. 7 Hamas-led assault on southern Israel, which left about 1,200 people dead—most of them civilians—according to Israeli authorities.

The ruling also has potential to reignite a divisive national debate and provoke a constitutional crisis.
The law, passed last summer by Israel’s parliament, the Knesset, was part of a broader package of legislation aimed at limiting the court’s power and giving more control to lawmakers. Netanyahu has argued that activist, liberal judges control the court and that the legislation seeks to restore a proper balance of power. Opponents charge that the legislation would undermine the court’s role as a check on executive and legislative power and would erode Israel’s liberal democracy.

Israel has no written constitution like the U.S. and relies on a series of basic laws, which have special, quasi-constitutional status and delineate the basic tenets of the state such as electoral procedures, minting currency, and individual rights. Since the mid-1990s, the court has interpreted them as the country’s constitution.

In a decision that could have wide repercussions, the court also ruled 12 to 3 that it has the right to strike down a basic law in “unusual and extreme cases” when it goes against the core principles of Israel as a Jewish and democratic state.

“This is really an unprecedented decision because it is the first time in the history of the state where the court strikes down a basic law” that is equivalent to a constitutional amendment, said Yaniv Roznai, a law professor at Reichman University in central Israel.

The court has never struck down one of the basic laws, but has opined in various decisions that it has the authority to do so if the laws would alter the basic democratic character of the country.
Netanyahu’s Likud party criticized the court’s ruling, saying that “it is unfortunate that the Supreme Court chose to issue a decision at the heart of Israel’s social divisions, precisely when [Israeli] soldiers” from across the political spectrum “are fighting and risking their lives.”

Justice Minister Yariv Levin, considered the judicial overhaul’s chief architect, said the court’s ruling “takes away from millions of citizens their vote and the basic right to be equal partners in decision-making.” Levin has long argued that elected leaders should have more influence over the courts and their authority.

Opposition Leader Yair Lapid praised the decision as protecting Israeli democracy. “If the Israeli government again starts the fight over the Supreme Court,” Lapid said, then “they learned nothing on Oct. 7.”

The Netanyahu government’s judicial overhaul plan divided the country before war, with some arguing that it conveyed weakness to Israel’s enemies and influenced the timing of the Hamas attack.
The ruling coalition has several options if it chooses to oppose the ruling, say legal analysts. This includes passing a more nuanced version of the reasonability amendment or passing basic law legislation that would limit the ability of the court to strike down basic laws.

President Biden had urged Netanyahu to slow down and seek a consensus with the political opposition on changes to the country’s Supreme Court.

Monday’s ruling comes at a critical time for Netanyahu, who has faced blowback at home about Israel’s failure to prevent Hamas’s Oct. 7 attacks. The longtime leader has pushed back, saying that questions about his own personal responsibility would be dealt with in a postwar inquiry.

Without Monday’s ruling, courts would have little recourse to force the government to create a state commission of inquiry into Israel’s intelligence failures, said Barak Medina, a law professor at the Hebrew University in Jerusalem. Only a state commission of inquiry can issue recommendations with serious weight, he added.

If Netanyahu takes steps to oppose the top court’s ruling, it could undermine the working of the emergency government that was formed after the Oct. 7 attack.

Former Defense Minister Benny Gantz, who is part of the opposition National Unity alliance, was against the judicial overhaul. If Gantz leaves the war cabinet, Netanyahu’s coalition, widely viewed as the most right wing, nationalist and religious in the country’s 75-year history, would be in charge of making decisions about the war. The emergency government was formed to establish some unity in the country after a period of polarization in Israeli society and politics.

“The verdict must be respected, and the lesson from the conduct of the last year must be internalized—we are brothers, we all have a common destiny,” Gantz said after the ruling was announced.

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