Is High Court progressivism dead or delayed?
Surprisingly, the panel of activist justices unanimously decided to keep in power the very prime minister who has come closest to undermining them
It was not surprising that a majority of the High Court of Justice cleared Prime Minister Benjamin Netanyahu, along with controversial aspects of the coalition deal, to go forward for forming the next government.
However, what is shocking is that the court vote was a unanimous 11-0 in favor of this result.
Is this the death of the High Court’s progressive-activist branch or merely a pause and a delay with a later upper-cut counterstrike on the way?
Roughly speaking, the High Court can be broken down into three groups: conservatives (4), progressives/activists (4) and moderate activists (3.)
From the comments of the justices at the hearings on Sunday and Monday, it already appeared clear that Netanyahu and the deal would have at least a six-to-five majority.
What was surprising was that none of the court’s unapologetic progressives dissented: Uzi Vogelman, Daphna BarakErez, Anat Baron and Menahem Mazuz.
This is all the more surprising because even as Netanyahu’s political bloc had close to half of the country who wanted him to remain prime minister, slightly more than half of the country in the March 2 election wanted him out.
While the High Court and the legal establishment has a different set of rules than the political sphere, it is rare to see a ruling which is so lopsidedly unanimous in contrast to the very split views of the public.
Put another way, it is surprising that a panel of justices that is 7-4 activist or moderate activists decided by a unanimous vote to keep in power the very prime minister who has come closest to undermining them and the legal establishment in general.
Since the High Court explicitly said that who is prime minister is an inherently political issue where they needed to be very deferential, it is clear that the court took politics into account.
But where will they go from here?
FIRST, we need to understand a little bit more about how the majority progressive court ruled unanimously for Netanyahu and the deal.
High Court President Esther Hayut (a moderate activist) set the tone for both hearings from the beginning by disarming the petitioners, who were against Netanyahu and the deal, of their most powerful arguments before they fired a rhetorical shot.
The court was only interested in the formalistic issues of who had the power to appoint Netanyahu and whether that appointment was extremely unreasonable.
The petitioners had warned that the High Court giving legitimacy to a man indicted for bribery to form a new government would permanently undermine the state and the public’s faith in the rule of law; the public sector; and any trust in Netanyahu that his policies were disconnected from his trial.
One lawyer said the country would “fall into a dark, black hole.”
Hayut was dismissive, calling these arguments populist – as if these issues underlying a properly-functioning democracy were window-dressing that judges should not waste time considering.
The same approach came with the coalition deal.
Regarding any parts of the coalition deal that were most problematic, Hayut said categorically up-front that the court was not going to deal with them until after the Knesset passed them into law.
Though it’s true that the High Court usually prefers to deal with laws after they are passed – and sometimes waiting until even later when their effects can be assessed – the court has occasionally blocked certain ideas from going forward before they were enshrined into law.
When the court has intervened in this way, it has been because intervening after the ideas became law would be too late to prevent irrevocable changes.
CONSERVATIVES WORRY that, in theory, the High Court could let a new government form and then in two months invalidate major portions of the coalition deal.
But if the court nixed provisions that guarantee Gantz becoming prime minister in November 2021 or Netanyahu becoming vice premier at that time, this would invariably send the country back to a fourth round of elections – which even the court made it clear that it was desperate to avoid.
So it would seem that the court’s decision to pass on these issues until a later date foreshadows a later hard pass. If so, this would mirror exactly how it played the issue of pushing off ruling on Netanyahu being prime minister for over seven months as premature, and then taking a hard pass from intervening in the end.
Next, the High Court could have intervened on the grounds that the Basic Laws do not address a case of an indicted candidate for prime minister to form a new government – only of a sitting prime minister. Since Netanyahu is only a caretaker prime minister until a new government is formed, he is not considered to be “sitting,” but instead merely a candidate.
Places where the text of the laws are silent are the classic platform for progressive judges to forge their own idea of what is best in the absence of any clear directive from the legislature.
But instead of using this obvious lacuna in the law to nix Netanyahu, they went for the formalist-conservative approach of saying that they could not force out Netanyahu without an explicit provision empowering them to do so. They said that they should view this situation where the Basic Laws are silent through the lens of the Basic Law that only requires firing a prime minister once convicted.
Some conservatives are worried that the High Court left open the door to firing future indicted prime ministers, since the justices said that while they do have this power, this case is not extreme enough.
But bribery is the gravest charge among white collar crimes.
Now that the High Court took a pass on bribery, no future prime minister can be fired upon indictment for corruption charges. It would take something more (treasonous spying, murder?) for them to be able to act.
So conservatives again probably have little to worry about there.
THE JUSTICES tried to commit to avoiding a situation where their decision might indirectly undermine some specific prior rule of law precedents going forward.
The High Court said that regular ministers will still need to resign once indicted.
But how exactly will it make sense for Netanyahu to be ordered to fire Shas Party leader Arye Deri or UTJ Party leader Ya’acov Litzman if they are indicted when he himself got to stay in office?
Likewise, part of what Netanyahu has been indicted for is violating past conflict-of-interest deals he agreed to.
So it is unclear why the High Court thinks Netanyahu signing such a deal – to keep out of future law enforcement appointments while he is on trial – can or will be enforceable.
Yes, the court has issued a run of progressive decisions lately which led conservatives to return to the idea that they need a law to veto High Court vetoes.
But on the largest issues – the Settlements Regulations Law, the Nation State Law, the ultra-Orthodox being drafted into the IDF – the court has found ways to indefinitely delay forcing a resolution.
If the High Court was still in the Aharon Barak activist era, it might have disqualified Netanyahu when he was at his weakest: after Gantz won the second election.
Instead, the justices carefully telegraphed to Likud and Blue and White what minor aspects of the coalition deal would need immediate revising for the government to form, as well as what issues might need some tweaking later.
This does not mean that the justices might not throw some wrenches into the works of the coalition at some point – and they may very well make sure to do so on something, if only to plant a flag in the ground somewhere.
But since Netanyahu’s trial could be concluded by or around November 2021, the High Court will probably find a way to delay ruling on whether an indicted person can be vice premier until the trial resolves the issue.
With anything else, the court will likely continue to feel its way through the politics with the parties, and only go after provisions which will not lead to new elections.
So if not actually dead, the progressive wing of the court has been profoundly weakened or exposed as weak during this battle.
Of course, for conservatives who are angry that the court even spent time weighing in on the issue, this may be insufficient and there may yet be future battles to further limit the court’s authority.