Israel’s Supreme Court again Chose Increasing Its Power over Compromise

January 18, 2024 | Yonoson Rosenblum
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On the first day of this year, the Israeli Supreme Court issued a ruling overturning an amendment to the Basic Law that passed the Knesset in July, which states that the court cannot overturn a law on the grounds that it is “unreasonable.” In a separate, parallel ruling, the court granted itself the power to overturn Basic Laws. Yonoson Rosenblum comments:

As works of legal craftsmanship, the majority opinions in the recent decision could not have been shoddier. As a number of commentators noted, if the sources of the High Court’s authority to strike down Basic Laws were clear, there would have been no need to spill over 700 pages of text to justify the decision. But [the outgoing court president Esther] Hayut does not speak the language of samkhut (legal authority based on statute), but rather that of hatsdakah (fitting, proper, just). That is of a piece with her declaration at a legal conference that she views her role as conforming the law to the dictates of justice. About her own ability to determine what is just, as opposed to what the representatives of the population voted on, she is not plagued by any self-doubt.

No fewer than 62 times in her opinion did she write, “in my opinion.”

Had the High Court wanted to avoid triggering another round of social discord, it had the means to do so. . . . In this case, the court could have noted that the so-called “unreasonableness clause amendment” to the Basic Law did not affect in any respect the High Court’s ability to overrule executive or administrative actions on a host of other grounds, most notably a lack of proper legal authority for the decision in question, and therefore was of little impact on the High Court’s powers.

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