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Seeking the lonely center
After ruling on Bibi, Edelstein and the Shin Bet, where will Chief Justice Esther Hayut take the country next?
Perhaps it was inevitable that High Court of Justice President Esther Hayut would disappoint critics on both the political Right and Left. Like her predecessor, Miriam Naor, Hayut is viewed by many as a moderate activist: a judge who is ready to strike down Knesset laws and state policies in particular circumstances, but who tries to avoid wading too deeply into issues with larger political overtones.
She is not a conservative like Asher Grunis, who preceded Naor, but certainly not an unapologetic activist like Aharon Barak and Dorit Beinisch, who preceded Grunis.
Hayut herself disavows any category or label. She would view a label as stuffing thousands of her decisions into an oversimplified slogan based on a few well-known judgments. And yet a series of decisions that came down in her era and the toxic political atmosphere have ignited greater frustration with her among her critics on both sides than with Naor. The Magazine understands that Hayut would likely view criticism from both sides (always by the losing side) as a sign of being even-handed and balanced.
It is likely that the defining decision of her era will be her vote – with an 11-0 vote of the High Court – green-lighting Prime Minister Benjamin Netanyahu in early May to form a new government.
Hayut will run the High Court of Justice until October 2023 – and those six years will be longer than that of her two predecessors combined
From the Left
This will always be seen on the Left as an unforgivable shirking of moral authority and responsibility: the moment when the guardians of justice let a man indicted for bribery continue to run the country.
There are other complaints from the Left against Hayut. Some criticize her for voting in the minority to try to disqualify Joint List MK Hiba Yazbek from running for the Knesset. A majority of five justices cleared Yazbek, but Hayut’s minority vote was seen by leftist critics as a betrayal acquiescing to populist hatred of Arabs.
Interestingly, although Hayut and the High Court belatedly exercised some oversight over the government’s use of the Shin Bet (Israel Security Agency) to conduct surveillance of coronavirus infected persons, many critics on the Left panned her performance as too little too late. They say that the High Court did not issue any ruling on the issue for six weeks and that when it finally did, it side-stepped confronting the fundamental issue of balancing health security and privacy rights. Instead of handing down a framework for how to view the competing principles, Hayut and the High Court were accused of shielding themselves with procedure and passing the ball to the Knesset to make any hard calls.
Attorney Dr. Hassan Jabareen, general director of Adalah – The Legal Center for Arab Minority Rights in Israel, said, “When the government is taking aim at the justice system as a whole and threatening to limit its powers – for political reasons and to counter Netanyahu’s legal troubles – the court’s top priority is survival. As the government grants itself unprecedented powers, the High Court has failed to employ judicial intervention even in extreme cases where the government acted unconstitutionally using emergency regulations during the COVID-19 period. The justices… employ an arsenal of procedural techniques that allows them to avoid making principled decisions.
“Hayut’s Israeli High Court has, essentially, ceased operations and exists in survival mode under constant government attack.”
From the Right
Critiques of Hayut from the Right are at least as withering.
The two greatest recent “sins” of Hayut and the High Court were the firing of the Likud’s Yuli Edelstein from the post of Knesset speaker and their loud condemnations of Netanyahu even as they allowed him to form a new government. Ideological conservatives were furious that the High Court even agreed to hear the case. They viewed it as entirely a Knesset matter with an open-and-shut Basic Law that permitted Netanyahu to continue until conviction.
It appeared that High Court Justices David Mintz and Noam Sohlberg agreed with this criticism, even as they joined their more activist brethren for the full 11-0 result of greenlighting Netanyahu. This is part of a broader ideological battle in which figures like former justice minister Ayelet Shaked say the High Court should never hear cases regarding Basic Laws.
In contrast, Hayut and the majority of the current court believe the justices have the authority to hear cases regarding Basic Laws in cases where there is a dispute over interpretation or when two Basic Laws contradict each other. It would seem that Hayut will go to extensive lengths to avoid invalidating a Basic Law – she has succeeded in avoiding ruling on the Jewish Nation-State Law now for around two years. She has also delayed ruling on the issue of haredim integrating into the IDF for even longer and issued a ruling on the Settlement Regulation Law only on June 9, more than three years after the petition against it was filed. The claim is she hoped the politicians would resolve the controversial issues.
But she seems intent on at least holding hearings. This way the court can have its say, something that infuriates the Right as showing disrespect for the country’s elected leaders.
Itamar Ben-Gvir – a leader in the Otzma Yehudit Party and a lawyer for Honenu, which provides legal aid to far-Right activists – asserted, “Hayut is more balanced than Beinisch and Naor. She has a better understanding of the full picture of the government and of the limits on judicial authority… and when there is criticism against it across-the-board from half the nation.”
“Still, her approach is very activist. If you look at the decision regarding [Yuli] Edelstein… the approach is one of someone at the top of a very activist High Court… The problem is not just one of activism versus conservatism, it is one of Jewish Zionism, and unfortunately, many of the judges there are not on board with this agenda… The High Court has changed itself into an authority above the legislature,” he said.
Which view of Hayut is true?
Part of the answer lies in her journey.
Hayut was born in Herzliya in 1953 to Romanian Holocaust survivors, though part of her childhood was also with her grandparents and in Eilat as well. She graduated Tel Aviv University Law School in 1977. From 1977 to 1990, Hayut worked in the private sector, before climbing the judicial ladder post by post from 1990-2004 until reaching the High Court. She was a product and stalwart of the court system who also taught judges how to improve their judicial writing.
After 13 years of relative anonymity on the High Court from 2004 to October 2017, she took office as chief justice at the young age of 64. Hayut will run the court until October 2023. Those six years will be longer than her two predecessors combined and give her a chance to put a more lasting stamp on the court.
Another look back at the cases
Analyzing a sufficient number of cases and controversies, it is likely that critiques on the Left and Right of Hayut are partially true and partially missing the full picture.
In one of the most famous quotes of the heated hearings regarding whether Netanyahu could form the next government, Hayut rebuked a lawyer who said the country’s rule of law would collapse.
“This is an inappropriate claim, this is populism. A party cannot claim here that if their position [that Netanyahu must be fired from being prime minister due to his indictment] is not accepted, that the whole
fortress [of the rule of law] will fall,” said Hayut.
This was classic hard-nosed Hayut. Emotional and foundational arguments about the heart of democracy might have moved Aharon Barak. She swatted these arguments away. The chief justice instructed the lawyers to focus on the technical question of defining who was appointing Netanyahu (the Knesset) and what was the standard by which the High Court could review or potentially overturn that appointment.
Another vignette was Hayut’s vote in the minority to disqualify Yazbek for inflammatory statements. True, she disqualified the MK, but she also voted to allow Joint List MK Ofer Kasif and other Israeli Arabs in the past to run despite controversial statements against Israel or the IDF. Furthermore, she disqualified Michael Ben Ari, Baruch Marzel and Bentzi Epstein from running on the Right side of the political spectrum.
So did Hayut take a principled stand in most of these rulings, but was only intimidated by populism from the Right on the Yazbek ruling? Or did she disqualify some right-wingers and some left-wingers while letting others run according to a set interpretation of lines that could and could not be crossed, albeit lines that her critics feel are indefensible?
Regarding the ruling greenlighting Netanyahu, did Hayut put on a show and sell out in fear of how the political class would react to nixing him? Or did she show guts by holding the hearing and as well as Netanyahu’s feet to the fire long enough to make him sweat?
Everything depends on your political lens. When Hayut’s ruling led to Edelstein being ousted from office (Hayut would be careful to note that the Knesset, not the court, ousted him), did she demonstrate courage in insisting that he not abuse his power as speaker to frustrate Blue and White from taking his job even though they had the support of 61 MKs? Or did she grandstand and “spike the football” on Edelstein’s head just to look tough when a calmer and more patient approach could have resolved the dispute in a more “bloodless” (politically speaking) manner?
An entirely different way to approach these issues is to say that Hayut is seeking to uphold the rules of the game whenever she can, but is also watching for the political consequences to make sure that her branch of government survives (she would likely reject the second part).
This could explain how she and the High Court angered the ruling Likud Party and the country’s right-wing bloc by firing Edelstein as speaker, but angered the left-wing bloc by clearing the way for Netanyahu to form the next government.
Majority rules
The general rules of the game are majority rules. In the case of Edelstein, as respected as he was by many, there was a majority of 61 MKs who wanted to unseat him. They wanted to pass laws against Netanyahu, or as it turned out, to threaten passing those laws to compel Netanyahu to agree to a rotation unity government.
Put differently, the High Court did not fire Edelstein. They merely told him that he had to allow a vote on the issue in the Knesset, given that 61 MKs were saying they wanted to hold a vote.
Back over to the Netanyahu ruling: In that case there were also at least 61 MKs who wanted something and Hayut ruled in that direction. So arguably, Hayut has a principle of giving significant weight to an absolute majority of the Knesset, which is similar to the authority of a Basic Law.
Less deference if not a Basic Law, but still some deference
She does not give the same weight to regular Knesset laws or to government policies that lack a Knesset law to underpin them. Hayut has been with the majority in the many rulings striking down the country’s African migrant policies as unconstitutional. Not one of these policies was set by a Basic Law and Hayut and the others found them to violate Basic Laws or fundamental human-rights principles.
Similarly, on April 26, Hayut and the High Court told the state that it cannot continue to allow the Shin Bet to perform surveillance of coronavirus-infected persons without passing a full-fledged Knesset law to regulate the issue. The justices said the current legal basis was inadequate and that if the government did not pass a new law to properly authorize the program within a few weeks, they would be forced to end the program. This shows Hayut’s willingness to cancel a state policy that contradicts civil liberties like the right to privacy at the heart of the Basic Laws.
On the other hand, even here Hayut’s activism was moderate. The decision came 10 days after an April 16 hearing, nearly six weeks after the program had been running and at a time when the corona wave already appeared to be on the wane. In other words, Hayut and the High Court waited to step into the breach until the pressure from the government to keep the Shin Bet program had lessened.
The Magazine has learned that Hayut and the Court would rebut criticism of the delayed final ruling by noting that they exercised oversight at a much earlier date. Moreover, they would say that when the issue came up in mid-March, no one in real time had the hindsight to know that the number of deaths in Israel would be “only” in the hundreds as opposed to the thousands or more.
But there have also been controversial regular Knesset laws and state policies where the High Court split, and Hayut voted to uphold the policy or law. In September 2019, she was the decisive voice in a 4-3 High Court vote to embrace the government’s policy of holding onto terrorists’ bodies to negotiate the return of Israeli bodies being held by Hamas despite
arguments that this violated international law. In May 2018, she voted with the majority to uphold the IDF’s controversial rules of engagement confronting the mix of non-violent and violent protesters on the Gaza border.
In 2016, she voted with the minority not to strike the entire natural gas law, while a 3-2 majority vote did indeed do that. In 2014, she voted with a 5-4 razor-thin majority to uphold a law that hundreds of small communities may be using to exclude Israeli Arabs.
That is just with regard to the specific decisions that came down during her era.
Public fights
But being chief justice also means defending the judiciary as a branch of government from attacks by the political echelon. While former justice ministers Ayelet Shaked and Daniel Friedman fought with the High Court via public criticism and in trying to shift the court to being more conservative with new appointments, these fights in Hayut’s era became more intense than ever.
In June 2019, Hayut unleashed an unprecedented counterattack on new acting justice minister Amir Ohana (now public security minister), noting that his comments that he would consider disobeying certain rulings of the High Court could throw Israel into anarchy.
“It must be viewed severely that the justice minister of the State of Israel, on his inauguration day, related to us his unprecedented and irresponsible legal outlook according to which not every court decision must be respected.
“Every litigant can now, with the justice minister’s blessing, choose which judgments to uphold and which to not uphold,” Hayut said. “I want to say only one thing about it: this is a short path away from anarchy.”
Ohana had told Channel 12 that he was ready to disobey rulings by the High Court if they went against his view of what is necessary to keep Israel’s citizens safe and also lashed out against Attorney-General Avichai Mandelblit and the prosecution. The counterattack on Ohana was as unprecedented as Ohana’s attack itself. Shaked had sometimes duked it out in public over specific policy issues, but she never questioned the idea of obeying court decisions and never attacked the prosecution’s professionalism.
Ohana did clarify around 11 p.m. the same night of his interview and the counterstrike by Hayut, that he would still respect court decisions the vast majority of the time. However, his public statements and actions poisoned relations between him as justice minister and the judiciary at unprecedented levels. The one time where Hayut and Ohana publicly cooperated was when she supported his order to shut down the courts in mid-March when corona was declared a pandemic.
Hayut took some criticism from the Left in that she did not ensure Netanyahu’s trial would start on March 17, after it had already been delayed four months by elections and battles over immunity. The chief justice would likely simply say that it is her job to work professionally with any and all justice ministers, and that she always has and always will.
Of course, Ohana is both a major actor and a symptom of the shifting times. Shaked herself prior to the April 2019 elections criticized the High Court more respectfully, but during election season pushed the slogan, “Bennett will beat Hamas, Shaked will beat Bagatz” (a rhyme using a nickname for the High Court in Hebrew).
Hayut has also taken a public beating for failing to declare some alleged conflicts of interest. She has responded to the criticism by publicizing the justices’ conflicts list. Hayut also got a reprieve when the Blue and White Party, plus various opposition parties, torpedoed an initiative to establish a state commission of inquiry into justices’ conflicts of interest. Incidentally, an ombudsman cleared Hayut on Monday of any alleged conflicts violation.
Vetoing the High Court vetoes
A major mission for Hayut has been to block the Knesset from passing a new Basic Law to let the parliament veto High Court vetoes. In May 2018, along with Mandelblit and the (now dead) Kulanu Party, she squelched the last major push by Shaked and Bayit Yehudi to give 61 MKs the power to veto High Court rulings. At the time, she had delivered a blunt warning that if the proposed bill was passed, the High Court would lose its independence, and there would be no entity to protect the rights of the weak.
Ohana also discussed the idea of the Knesset vetoing the High Court in 2019, but during the repeat election seasons when there was no Knesset to pass any such law. Still, Hayut was quick to argue to the public that the status of the High Court was not the issue, but rather the eradication of basic human rights and the resulting legal chaos.
Looking into the future of Hayut’s relationship with the other branches of government, things get blurry. When Hayut got Edelstein fired as Knesset speaker, it might have been a case of “winning the battle, but losing the war.” This is because the irony of firing Edelstein is that the new speaker is Yariv Levin, who is much more ideologically opposed to High Court activism than Edelstein ever was.
In fact, Levin backed Edelstein’s decision to try to ignore Hayut’s order to allow an immediate vote for the speakership. When Edelstein was forced out, Levin observed, “The High Court has officially taken control over the Knesset and made the Knesset speaker into a rubber stamp. The Knesset is now run by the judges. This does not happen in any other democracy.”
On the other hand, Ohana has been replaced by Justice Minister Avi Nissenkorn, from Blue and White and with a Labor Histadrut union-organizer background, which falls in line with the court’s activist wing. In his inaugural speech he said he would “be a wall” of defense for the High Court from criticism and politicization, and he supported the court’s ruling striking down the Settlements Regulations Law when the political Right blasted the decision.
Hayut and Nissenkorn will be key forces on the Judicial Selection Committee that will shape the future of the judiciary through 2023, including almost one-third of the future High Court.
But they will be pitted against representatives of Netanyahu as well as Zvi Hauser, aligned with Blue and White against corruption, but a lifelong critic of High Court activism that cancels state policy.
Hayut has a lonely path – but she would probably say she knew what she was getting into, and that she serves the state not for popularity, but to serve.