Would the High Court dare strike down the coalition’s judicial appointments law?

With Prime Minister Benjamin Netanyahu reiterating Thursday night that the coalition will next week push to enact the first part of its judicial overhaul agenda, namely the law to take control of judicial appointments, the question of whether or not the High Court of Justice will strike down such a law is becoming increasingly important.

Such a ruling would be unprecedented in Israel’s history and, with the deep suspicion of the current coalition and significant sections of the right-wing public towards the court, would create a potentially catastrophic constitutional crisis.

But a scenario of this kind is becoming ever more possible, with senior legal scholars arguing that the legislation about to be passed by the coalition would severely harm the separation of powers in Israel and the independence of the judiciary.

Under such circumstances, the High Court may rule that the law undermines Israel’s character as a democratic state, determine it therefore to be unconstitutional, and strike it down.

Such a ruling would take Israel into unchartered legal waters regarding the rule of law and the very ability to govern the country, yet it is a situation that could unfold any day now.

The proposed law

The bill in question is being legislated as an amendment to Basic Law: The Judiciary, one of Israel’s 13 quasi-constitutional Basic Laws which set out the fundamental aspect of the country’s governance, democratic regime, and civil rights.

The proposed legislation would give a governing coalition, starting from the current one, control of six spots on the 11-member Judicial Selection Committee. Three positions would be allocated to the Supreme Court justices, including the president of the Supreme Court, and two for opposition MKs.

Critically, the coalition also intends to change the manner in which the president of the Supreme Court is elected, from the seniority system used until now whereby the justice who has served the longest on the bench is appointed president, to a vote by simple majority of the Judicial Selection Committee.

This would in theory give the current coalition control of seven out of the 11 spots on the committee if the Supreme Court president voted in accordance with those who appointed them.

Under the law, judicial appointments to family, labor, magistrate and district courts would need seven votes on the committee, meaning the coalition government could have full control over all appointments to the lower courts.

For the selection of Supreme Court justices, the first two spots to open up on the bench during a Knesset term would need a simple majority, meaning the coalition will be able to control those first two appointments.

The third spot to open up would need the backing of at least one opposition MK, and the fourth would need the backing of an opposition MK and a Supreme Court justice.

Although this version of the bill is slightly more moderate than a previous draft, legal scholars have pointed out that the system would greatly politicize the judicial appointments system.

All lower court appointments could be made simply by the votes of the coalition representatives and the coalition-appointed Supreme Court president, unlike the current system where elected officials do not have a veto over lower court appointments.

And since usually only two or three Supreme Court appointments are made every Knesset term – which lasts a maximum of four years but very frequently is dissolved early – the large majority of appointments will be made by coalitions alone, be they right-wing or left-wing.

Currently, consensus is needed between the coalition representatives and those of the judiciary, the Israel Bar Association, or the opposition on the committee in order to make a Supreme Court appointment.

Why would the High Court intervene?

The High Court has never yet struck down a Basic Law due to its constitutional weight. But it has asserted its right to do so in very narrow circumstances.

The most significant ruling on this issue is the court’s decision over the Basic Law: Nation State in 2021. Although the court declined to annul that law, Supreme Court President Esther Hayut outlined the very narrow circumstances in which the court might strike down a Basic Law.

“In my approach, at this stage of Israel’s constitutional endeavor, there is one restriction, exceedingly narrow, which is incumbent on the Knesset in its function as the constituent authority, that it is unable to revoke Israel’s essence as a Jewish and democratic state through a Basic Law,” wrote Hayut in her ruling.

“We are talking about cases in which a constitutional provision deals a mortal blow to the Jewish or democratic character of the state, to the point that there is no way to conceptually and practically reconcile this provision with these elements of the state’s identity,” she continued.

Hayut went on to specify what kind of democratic principles would need to be harmed by a Basic Law in order for the High Court to strike it down, writing that such a law which “dealt a mortal blow to free and fair elections, core human rights, the separation of powers, the rule of law, and an independent judiciary” would not be commensurate with Israel’s democratic character.

Arguments for the motion…

Prof. Mordechai Kremnitzer, an emeritus professor of law at Hebrew University and a senior fellow at the Israel Democracy Institute, argues that the coalition’s proposed amendment to Basic Law: the Judiciary could be seen to violate both the separation of powers and the independence of the judiciary.

He said the government’s proposed law “harms the independence, professionalism, and apolitical nature,” of the judiciary, and that striking it down could therefore be justified.

“It undermines the very weak system of checks and balances on executive and legislative power in Israel, which is dependent on an independent judiciary,” said Kremnitzer.

“Without it, the coalition will have unlimited powers, meaning the rights of citizens will be dependent on the good graces of the coalition and God, and I do not have confidence in such a system.”

Dr. Amir Fuchs, also of the Israel Democracy Institute, said that in petitions to the High Court against the law, the petitioners “will need to prove that there is a severe and destructive violation of the separation of powers and and the independence of the judiciary.”

But both Fuchs and Kremnitzer also acknowledged that not all the justices of the High Court may see the law in such a light, however, for a few reasons.

Arguments against the motion…

Many countries involve politicians in the election of judges to their highest courts, and proponents of the government’s legislation have argued that numerous liberal democratic countries give such authority to politicians alone.

The law’s architects, Justice Minister Yariv Levin and Constitution, Law and Justice Committee Chairman MK Simcha Rothman, who has shepherded the bill through committee, have made just these arguments.

In addition, the proposed law does theoretically give the opposition and judiciary the ability to have some influence over Supreme Court appointments, since at least a small proportion of appointments will need their support.

Against such a background, some of the more conservative justices on the court may not agree that the law does such serious damage to judicial independence and separation of powers as to justify the unprecedented and radical step of striking down a Basic Law.

Fuchs pointed to Supreme Court Justices Noam Sohlberg, David Mintz, Yosef Elron, and Alex Stein as more conservatively-minded members of the bench, who might rule against invalidating the legislation, while at least two other justices also have conservative leanings and may decline to insert the court into the constitutional dispute.

And Attorney Ze’ev Lev of the conservative Movement for Governability and Democracy organization made further arguments in favor of an outcome in which the law survives judicial review.

Lev argued, similarly to Levin and Rothman, that since other democratic countries have political and even governmental control over judicial appointments, it would be difficult for the petitioners to prove that the coalition’s law amounted to a “mortal blow” to Israeli democracy.

“From all the proposed reforms, this is the hardest one for the court to cancel because this is how judges are appointed all around the world in all democratic countries,” said Lev.

As such, he said he believed there was “zero chance” the High Court would strike down the legislation.

But Fuchs argued, as did Kremnitzer, that the claims about political control over judicial appointments in other democracies are not wholly accurate.

Fuchs noted that in Germany appointments to the Federal Constitutional Court are made by the two elected houses of the German parliament, as pointed out by advocates of the government’s legislation.

But an appointment to that court requires a two-thirds majority in both houses, which inevitably needs the support of some members of the opposition.

In Canada, another country cited as having political control over judicial appointments, the prime minister does select the judges but in practice does so from a list of candidates drawn up by an independent committee that comprises only a minority of politicians.

Lev noted however that the arrangement in Canada is not a permanent fixture of its constitutional setup, and could be changed by the next prime minister.

Other countries such as the UK and Sweden have similar arrangements to Canada, although with differing circumstances regarding the composition of advisory boards for drawing up candidate lists, and how strictly the government needs to adhere to such lists.

The Israeli government’s law by contrast would give the coalition a direct majority in the Judicial Selection Committee.

As a result, the new arrangement grants the coalition total control over two Supreme Court appointments, and possibly full control over all appointments to the lower courts should the coalition-appointed Supreme Court president vote with the coalition.

Fuchs argued that such a situation would dramatically limit the independence of the judiciary, especially in the lower courts, pointing out that judges in those courts may well be concerned about their careers when dealing with criminal cases against politicians.

“The judges won’t want to rule against coalition politicians,” said Fuchs, out of concern for their future careers.

Such a prospect might be enough to garner a majority on the High Court to strike down the law.

But Lev raised another difficulty with arguments that the coalitions under the new law would nominate the lion’s share of Supreme Court justices.

He pointed out that although on average only between two and three justices have been appointed per Knesset, which would in theory give coalition governments the large majority of Supreme Court appointments, those averages do not tell the whole truth.

He noted that during the last Knesset, four justices were appointed by the Bennett-Lapid government, and five were appointed in the Knesset before that. In the next Knesset after new elections, more than four spots on the Supreme Court bench might become open.

This means that any given Knesset might more frequently make third, fourth and possibly more appointments in which the opposition and judiciary have a key vote, allowing for a more balanced court and negating the claims that the law would reach the threshold of violating the separation of powers.

Lev also contended that although the current coalition was unusually homogenous in its ideology, previous coalitions — and by extension the Judicial Selection Committees they have formed — have included parties with a diversity of ideological positions, such as the committee in the Bennett-Lapid government which was led by the right-wing former justice minister Gideon Sa’ar but which also included left-wing coalition MK Efrat Reitman from Labor.

The committee during the right-wing Netanyahu government of 2015 to 2018 was led by the right-wing justice minister of the time Ayelet Shaked, but included the more centrist leader of the now defunct Kulanu party Moshe Kahlon, noted Lev.

“People talk about the coalition as one voice but if you look at most coalitions, they are very varied and are often not one bloc,” he said.

“This means that negotiations and compromises over judicial appointments happen inside the coalition,” he argued.

Lev conceded however that political control over the lower courts was not an ideal situation, and said that ideally two separate committees would be established, one for appointments to the Supreme Court with a preponderance of politicians, and one with more professional input for the lower courts.

He argued, though, that the mere fact the coalition could appoint the Supreme Court justice did not mean that they would automatically vote with the coalition on judicial appointments.

Another difficulty in striking down the judicial appointments law is the manner in which the government is advancing its overall judicial and legal overhaul package.

Kremnitzer and Fuchs both asserted that the government’s strategy of passing the different aspects of its overarching reform plan piecemeal would make it harder for the High Court to strike down each part of the legislative program, particularly the judicial appointments bill.

The High Court would be much likelier to see the entire plan, which also includes the bill to radically reduce judicial review and allow the Knesset to make legislation immune to judicial review; a bill to ban the High Court from striking down Basic Laws; and proposals to dramatically reduce the authority of the attorney general and government legal advisers, as an attack on Israel’s democratic character.

“If there is a holistic picture of what happens when all this legislation is passed, then the case to annul it gets stronger. If the court deals with these reforms as a whole, then the picture is more severe regarding the damage to democracy,” said Kremnitzer.

The possibility therefore exists that the court may want to wait until other aspects of the sweeping reform package are passed before ruling on any part of it.

By that point however, the current government may have already created facts on the ground, says Fuchs, by filing the two spots on the High Court bench which will open up later this year when Hayut and Anat Baron reach the mandatory age of retirement and have to step down.

What happens then?

But Fuchs adds another dimension to the constitutional conundrum. When petitions are filed against legislation, the High Court will often issue a temporary order freezing implementation of the new law in order to allow itself time to rule on its constitutionality before its effects can be felt.

Given the fact that the coalition intends to pass the judicial appointments law next week, the country could well see a constitutional showdown not in a few months or even years, when the court gives a final ruling on the issue, but in a few days.

At that point, Israel would stand at a momentous crossroads: Would the government ignore the court order and convene the new Judicial Selection Committee and appoint new judges to replace Hayut and Baron, or would it comply with the interim order and back down?

Levin highlighted exactly this danger earlier this week when he said that the High Court invalidating the law would be “completely unjustified,” and “We certainly won’t accept it.”

Kremnitzer opined that, given the consequences for the rule of law and the fabric of Israeli society, the very possibility of the government ignoring the court order may even act as a consideration for the court not to strike down the judicial appointments legislation.

It is also by no means certain that the court would issue an interim order against the law.

“I don’t think the government would dare not comply with the court,” said Kremnitzer, however, “because of the economic, diplomatic, and internal societal consequences of a government rebelling against the court.”

Additionally, Kremnitzer noted that if the court invalidated the law, the Knesset could always go back and legislate something similar and slightly more moderate, while bearing in mind the specific objections of the court, in order to pass something which achieves most if not all of its original goals.

The government might see this path as preferable, he said, to the nuclear option of disobeying the court, with all the daunting consequences that would accompany such a decision.