“A year ago I started the move to reshape the Supreme Court with the appointment of 4 judges,” Justice Minister Ayelet Shaked tweeted late Thursday night. “Today the move has ended with the appointment of another 2. They are part of the move to return the Supreme Court to its most important role: the interpretation of the norm determined by the legislature and not its replacement. [Newly appointed justices] Stein and Grosskopf are legal mavericks, a fact no one disputes. I thank President Hayut and the members of the committee [to appoint judges] for their dedicated work.”
לפני שנה התחלתי במהלך לשינוי פני העליון במינוי 4 שופטים. היום המהלך מסתיים במינוי עוד 2. הם חלק מהמהלך להחזרת ביהמש לתפקידו החשוב כל כך: פירוש הנורמה שקבע המחוקק ולא החלפתה. שטיין וגרוסקופף הם עילויים משפטיים שאין חולק על רמתם. אני מודה לנשיאה חיות ולחברי הוועדה על עבודתם המסורה. pic.twitter.com/nGaA5hIcAy
— איילת שקד (@Ayelet__Shaked) February 22, 2018
When she became Justice Minister, in 2015, Shaked set out to reverse the judicial revolution of former Supreme Court Justice Aharon Barak, who usurped legislative powers for the court, killing new laws that were not to the justices’ liking, most often on the grounds that they did not meet the standards set by a “constitutional” law pushed by Barak himself in 1992, Basic Law: Human Dignity and Liberty.
The law was a mastery of smoke and mirrors on many level, permitting the dwindling secular elite of the country to retain its grip on the system through seductive items, the most prominent of which is, “The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.”
By equating the democratic character of the state with its being Jewish, the sly legislation handed the left-leaning, activist court under Barak and his protegé that succeeded him as leaders of the court, a powerful tool with which to challenge religious legislation as well as laws supporting the settlements enterprise in Judea and Samaria. In close to two decades, the court has upgraded itself to being above the Knesset, tossing out new laws like eggshells before an omelet.
Shaked is now in the process of producing a new basic law that would anchor the Jewish character of the state, as counterbalance to the Human Dignity and Liberty law which establishes the democratic nature of the state. But she didn’t stand a chance to get such a law past the activist high court Israelis have lived with for so many years.
But the justice minister was lucky enough to take office at a time when more than a third of the court (6 out of 15) were due to retire, at age 70. And so, using political pressure, cutting deals with the Bar Association representatives on the appointments committee, and arm-wrestling with then court president Miriam Na’or, Shaked a year ago succeeded in installing four judges who are conservative-leaning and certainly not supporters of judicial activism. Now, with the two new appointments, as well as with a new court president—Justice Esther Hayut—whose first few months in office have shown a great deal more restraint (as well as judicial wisdom) – Shaked has reached the promised land: a supreme court that would likely concentrate on ruling on appeals rather than killing Knesset legislation it dislikes.
With hyper-activist, anti-settlements Justice Yoram Danziger leaving his post by month’s end (for personal reasons), the court will finally reach a plateau that favors judicial restraint versus activism, allowing the rightwing government to seek broad support for another fundamental legislation determining, once and for all, the relationship between the courts and the two other branches of government.
If for no other reason at all, getting this law through the Knesset is worth keeping the Netanyahu government in place, regardless of all the allegedly gifted cigars and pink champagne in the world.