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JERUSALEM — In what is being described as the most important judicial proceeding in its history, Israel’s Supreme Court on Tuesday heard petitions about whether the court itself could have its powers of legal oversight stripped away by the legislature.
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The hearings, which will last for months, come as the deeply polarized country has been racked by protests and teeters on the edge of a grave constitutional crisis as its most right-wing government in history seeks to change how the country’s institutions function.
The arguments, which started just after 9 a.m. local time, are being heard by all 15 justices, an unprecedented seating of the entire court. A Tuesday editorial in the daily Haaretz called it “the most important Supreme Court hearing in Israel’s history,” yet it is not even clear that the government will respect the final decision.
What to know as Israel’s Supreme Court takes up the judicial overhaul
Following eight months of mass street protests, strikes and road blocks — including tens of thousands outside the court the night before the hearing — the issues are now distilled into legal arguments over the division of powers in a country with no written constitution and a system of legislative oversight that almost exclusively relies on the Supreme Court.
The court has effectively been asked to judge its own fate by petitioners who claim a government vote in July was a power grab at the expense of judicial independence. Specifically, the ruling coalition decided to rescind the court’s power to annul government actions that it deemed “unreasonable.”
Simcha Rothman, the Knesset member who spearheaded the legislation, argued during Tuesday’s hearing that the justices were acting as “privileged elite,” working to overturn the will of the people.
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“It is clear to me that your honors believe that you are acting properly,” Rothman said. “But if you will be the final arbiters on this question, where are the balances and where are the brakes?”
Supreme Court President Esther Hayut responded that the hearing was not about the members of the court, but this specific legislation.
“We are not concerned with our dignity or our status,” she said. “We are addressing the public’s vital interests when duties that oblige the administrative authority, in this case, the government, are violated.”
Israel's new government, led by Prime Minister Benjamin Netanyahu, is prioritizing a reform of the country's judiciary, a move that has divided the nation. (Video: Joe Snell/The Washington Post)
Whichever way the court rules, the prospects for a crisis in governance are high. Some key ministers have said they will not obey a ruling that reverses their July vote to trim the court’s powers of judicial review. Prime Minister Benjamin Netanyahu has refused to clearly say he would comply. Last week, Netanyahu retweeted a video of a speech by the Knesset speaker, who said that “the Knesset will not surrender and accept being trampled upon.”
If the court strikes the law down, it will be the first time it has reversed a legislative change to a “basic law,” a protected category of statute that is equivalent to a constitutional amendment. It may also uphold the law but attempt to limit its application. In either scenario, it is unclear if the majority government will abide by the decision.
“The constitutional crisis is already here,” Tzipi Livni, a former justice minister and opponent of the judicial changes, said at the mass rally outside the court Monday night.
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The controversy has wreaked havoc on Israeli stability, causing the currency to drop, investors to flee and a split in military ranks that led commanders to warn of a readiness crisis in meetings with ministers.
Demonstrators filled central Jerusalem the day before the Supreme Court session, pouring out of the train station and packing the streets around the court, the parliament and the prime minister’s office. Police pushed back on their attempts to surround the court Monday.
Some had camped near the court. Amid heavy police presence, Tuesday’s smaller crowd pounded drums and blew vuvuzelas — prompting return honks from supportive motorists — and vowed to continue to fill the streets and fight against the government.
“Now we wait for the Supreme Court,” said Eyal Jaffe, 71, a retired colonel who leads a group of veterans of the 1973 Yom Kippur war that had been keeping vigil outside the court for the past 24 hours. “And if this revolution continues, we will continue to protest.”
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The hearing began with extra security around the court building and inside. The government is presenting its arguments first, followed by lawyers for the opponents.
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Ilan Bombach, a lawyer for the government, told the justices that high court lacks the authority to second guess a change to a basic law voted on by the Knesset and that the current arguments were for elected legislators to decide.
A judge then asked what would happen if the the Knesset legislated away rights the Supreme Court has been ensuring.
“That is an extreme scenario,” Bombach said. “The government and the Knesset expect the Supreme Court to trust them, that they will not use what could be considered a nuclear weapon.”
Unusually, the government is not being represented by Israel’s own Attorney General Gali Baharav-Miara, who not only opposes the change to the law but sent her own lawyer to argue against it.
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“When the government tells us ‘trust us’, we have to be very careful,” Anar Helman, the attorney general’s representative, told the court after a lunch break.
Government supporters, opponents and international diplomats packed into the narrow hearing room.
Among them was Amit Becher, the head of the Israel Bar Association and one of the petitioners against the judicial law, who said Tuesday on X, the social media platform formerly known as Twitter, that “the struggle is long but in the end democracy and Zionism will win.”
Justice Minister Yariv Levin, a staunch advocate of judicial overhaul, posted on Facebook that the Supreme Court hearing itself was a “a fatal blow to democracy and the status of the Knesset. … The people are the sovereign, and their will is expressed in the basic laws enacted by the Knesset.”
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The debate inside and outside the court walls illustrated the pervasive split in how Israelis view the high court. The right denounces the court as an elitist, leftist, secular institution that has acted as an obstacle to government policies that it says reflect the will of the voters.
The left sees it as one of the last democratic pillars, a guardian of minority rights.
Netanyahu was not at the court Tuesday, instead convening an unusual session of the full cabinet, a meeting that included his chief legal adviser.
The prime minister has said that he has spent the past week in search of compromise that would head off the need for a controversial court ruling, or at least postpone it. The longtime leader has seen his standing in polls, and among the international community, erode significantly amid the controversy.
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He is scheduled to travel to New York next week and hopes to receive a belated invitation to meet with President Biden, who has been critical of the judicial overhaul. On Monday, Israel’s Channel 12 announced that Netanyahu would meet with X owner Elon Musk in San Fransisco before addressing the U.N. General Assembly on Friday.
Tzachi Hanegbi, Israel’s national security adviser and longtime Netanyahu ally, said last month that Netanyahu’s office expected an invitation to the White House. But on Sunday, he simply stated in an interview with 103FM, a local radio station, that the two leaders would be in New York at the same time.
Rubin reported from Tel Aviv.
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