Media Brief: Judicial Overthrow Edition

. . . Israel wouldn’t be in this national meltdown if Netanyahu weren’t trying to wangle out of his criminal indictment by holding on to power in his coalition of the bigoted, the corrupt, the dependent and the extreme.

A statesman sacrifices himself for his nation. A demagogue sacrifices his nation for

Bret Stephens, NY Times column, “Israel’s Self-Inflicted Wound,” July 25, 2023

As this statement from a conservative commentator indicates, the Netanyahu government’s “judicial coup” has elicited condemnation from across the political spectrum. There’s this from Gary Rosenblatt, the former editor-in-chief and publisher of the New York Jewish Week, a centrist Jewish establishment journalist, writing in his newsletter that “The Israel we know has fallen,” republished in The Forward:

In what appears to be a tragic convergence, in the week of Tisha B’Av, when we mark the destruction of the Temple, attributed by our sages to bitter hatred among Jews, the Knesset has passed the first piece of judicial reform that has torn Israeli society asunder.

When the President of Israel speaks publicly about Israel being in “a state of emergency,” it is not hyperbole to assert that as the bill to limit “reasonableness” in judicial decisions becomes law, Israel has gone over the cliff’s edge, no longer the democracy it has proudly fostered and sustained for 75 years. Civil war becomes an all-too real possibility, a dire threat to the security, economy and diplomatic status of the Jewish state as well as a moral failure that could unravel support among diaspora Jewry here and around the world.

Rosenblatt’s mention of Tisha B’Av, brings to mind the interview of Americans for Peace Now with Susie Gelman, board chair of the Israel Policy Forum from 2016 until very recently, when she was appointed by Pres. Biden to head the U.S. Commission on International Religious Freedom. She dubbed the day that the Knesset passed the first step in the judicial overhaul — terminating the “reasonableness” standard for the High Court’s review of legislation and executive actions — “khamishi b’Av” (the fifth day of the month of Av)*. Gelman and Rosenblatt are not alone in warning of the potential third destruction of Jewish sovereignty in the Land of Israel.

So what is the “reasonableness standard”? The Israel Democracy Institute discusses this issue in terms of “extreme unreasonableness”:

The Supreme Court intervenes only when executive branch decisions are considered to be “extremely unreasonable.” . . . . [I]f it fails entirely to consider an essential consideration, or reaches an extreme imbalance among different considerations, then the Court will intervene. Only rarely does this relate to a decision by elected representatives, such as the government or a minister; the vast majority of this case law relates to decisions made by unelected bureaucratic officials.

What is the amendment proposed [and passed] by the coalition to the standard of extreme unreasonableness?

[It] would remove the Court’s powers to strike down any decision by the prime minister, the government, ministers, or other elected officials, even if the decision is extremely unreasonable.

The outcome of this amendment would be that the Supreme Court would not be able to review any decision made by these elected officials based on the grounds it was extremely unreasonable, including decisions about improper appointments to public positions or improper firing of public officials. In practice, without the Court being empowered to evaluate the reasonableness of policy, these decisions will be hidden from the public eye, and citizens will almost certainly remain unaware of decisions made and of their problematic nature.

A recent application of the “reasonableness standard” by the Supreme Court relates to Aryeh Deri, head of the Shas party in Netanyahu’s coalition:

. . . In December 2021, it was reported that Deri would resign from the Knesset as part of a plea deal for tax offenses. After re-entering the Knesset in the 2022 elections, he briefly secured posts as both Interior Minister and Health Minister in the thirty-seventh government. Deri was also set to serve as Deputy Prime Minister for the administration. However, due to a January 2023 ruling by the Supreme Court of Israel that Deri was not eligible for a ministerial position due to his criminal convictions and the terms of his plea deal, he was dismissed from his official posts in the Israeli cabinet.


This is from an article in +972 Magazine, a radical Israeli anti-occupation webzine:

The architects of the law, chief among them Justice Minister Yariv Levin, claim that abolishing the reasonableness standard is a democratic necessity, taking power out of the hands of a few unelected judges and returning it to those in whom the public placed their trust. However, Levin’s own speech ahead of the vote in the Knesset plenum on Monday told a rather different story — one that centers around entrenching Israel’s control over the Palestinians and eliminating resistance to it. . . .

*Ms. Gelman should actually have called the day this measure passed the Knesset “Shisha B’Av” — the Sixth of Av — but the parallel she drew with Tisha B’Av remains apt.