What the Israeli Supreme Court judges wrote in their landmark ruling

The eight Israeli judges who struck down a key part of the judicial review on Monday argued they had little choice given the law’s potential danger to Israeli democracy.

On the other hand, there were seven dissenting judges who decided to annul a law that limited the judges’ ability to use “reasonableness” as a legal standard.

Each judge wrote an opinion, with the full decision containing more than 250,000 words. The ruling concluded a milestone in Israeli jurisprudence. For the first time in Israeli history, the Supreme Court has struck down a quasi-constitutional basic law.

The justices, led by outgoing Chief Justice Esther Hayut, argued that the standard of reasonableness was an important tool for judges to protect themselves from arbitrary government overreach, especially in Israel, which has no formal constitution.

In her view, Judge Hayut said the law restricting judges’ ability to use reasonableness as a legal standard gave the public little protection from arbitrary government policies or politically motivated decisions to hire or fire officials.

“Given the fragile, missing system of checks and balances that exist in Israel, the total removal of judicial review of the reasonableness of government and ministerial decisions makes a substantial part of the court’s role in defending the individual and the public interest meaningless. Judge Hayut wrote.

Yitzhak Amit, a member of the court’s more liberal wing, wrote in his opinion that Israel had virtually no checks and balances against executive power, making tools like the reasonableness standard particularly important.

Judges’ stripping away of the doctrine “damages several cornerstones of jurisprudence and democracy: the rule of law, the right to a fair trial, the separation of powers,” Justice Amit wrote. “Given the severe democratic deficit in Israel, as described above, such an abolition of the reasonableness doctrine has much greater weight here than in other countries.”

In considering the case, the judges first had to agree that they could exercise judicial control over a basic law. The laws, which determine the functioning of the government and establish a number of fundamental rights, have been introduced piecemeal for decades in place of a formal constitution.

In court, the government’s lawyers and allies charged that the judges had no basis to exercise such power over the basic laws, which enjoy special status. The court ultimately ruled overwhelmingly that they did have such a power.

Even Alex Stein, a conservative judge, agreed with Judge Hayut and the ten other judges that the Supreme Court had the right to curb the hitherto unlimited power of the Israeli parliament, the Knesset, to pass quasi-constitutional basic laws .

“The Knesset was never given the authority to pass any law,” Judge Stein wrote in his ruling, adding that the legislature must adhere to Israel’s fundamental values ​​as expressed in the Declaration of Independence.

But Judge Stein ultimately argued that while the law striking down the reasonableness doctrine “could have been better worded than it was,” he did not think the court was obligated to strike it down. The current reasonableness doctrine was a legal innovation of the 1980s, he said, and not using it “does not violate any constitutional norm.”

For Noam Sohlberg – widely seen as one of the Court’s most conservative lawyers – there was “no complicated question, the answer is ready for us.” He argued that the court had no right to review the basic laws passed by parliament, denouncing such arguments as “weak legal constructs.”

The decision to scrap the law was supported by a razor-thin majority of eight judges in favor and seven against. But two of the majority judges – Judge Hayut and Judge Anat Baron – heard the case immediately before retiring in October, leaving them with just three months to rule according to the law.

“It is a small and vulnerable majority. Two of these judges are no longer presiding over the court — and the current court would likely have a majority taking the opposite view,” said Yedidia Z. Stern, a law professor who has been involved in talks to reach a compromise on the judicial review.