The immediate catalyst for the assault on the Supreme Court is that it has stood in the way of the government’s efforts to force African asylum seekers to leave the country. But Netanyahu’s coalition has a much larger collection of grievances.
The ultra-Orthodox parties resent a long list of decisions on religious issues – most of all, the court’s repeated rulings that blanket draft exemptions for ultra-Orthodox men violate the principle of equality.
Netanyahu’s Likud Party and its hard-right religious ally, the Jewish Home party, object to decisions against West Bank settlers, such as orders to demolish homes built on privately Palestinian land. And they are furious that the court has gotten in their way on the refugee issue.
The most articulate, and scariest, anti-court ideologue is Justice Minister Ayelet Shaked of Jewish Home. Shaked asserts the primacy of the majority, meaning both the electoral majority and the Jewish majority of Israel’s population.
The court, she has said, has erred by putting “abstract constitutional principles” above decisions by representatives “sent by the people to parliament.” Likewise, she has said the court gives too much weight to individual rights while ignoring the “national tasks” of the Jewish people – such as maintaining a Jewish majority by expelling refugees.
In Shaked’s philosophy, democracy means dictatorship of the majority, at least as long as the electoral majority favors her narrow vision of Jewish nationalism. There’s little room for the classic role of the Israeli Supreme Court in this scheme.
Israel’s highest court is both unusually influential and weaker than it looks. By a quirk of the legal system inherited from British rule, suits against government actions go directly to the Supreme Court. Such was the case in 1953, when founding Prime Minister David Ben-Gurion’s government tried to shut two Communist newspapers that ripped into its pro-West foreign policy. The Supreme Court ruled that the government could not close newspapers because of their views.
From then, the court assumed a growing role in protecting the rights of citizens – and noncitizens. After 1967, it agreed to hear suits by residents of the occupied territories against Israel’s actions. In the 1990s, after parliament passed two quasi-constitutional laws on civil rights, the court asserted its authority to overturn laws.
On the other hand, the court is cautious to a fault, whether because of legal philosophy or fear for its position. A simple majority in parliament could reduce its powers. The Supreme Court has never ruled on the legality of settlement in occupied territory. It has accepted government explanations for policies in the occupied territories with what could be called deliberate gullibility. On the few occasions that it overturns laws, its default is to give parliament time to pass something new. If Netanyahu’s government keeps getting in fights with the court, it’s because the government has overreached, not the court.
To rein in the court, Netanyahu reportedly wants to require a unanimous ruling to strike down a law. Jewish Home’s approach is to let parliament override the court, with a weak requirement for a supermajority.
In another era, there were Likud politicians who saw themselves as firm believers in liberal democracy and the role of the judiciary within it. Their numbers dwindled as they confronted the contradiction between democracy and long-term rule over the Palestinians.
In today’s coalition, Finance Minister Moshe Kahalon has cast himself and his Kulanu party as the court’s defenders. An ex-Likud man, Kahalon created his party before the last election and ran as a moderate rightist. He now says he’ll support an override of the court on the single issue of expelling refugees. Netanyahu is using that opening to pry a larger concession from him. Kahalon, it seems, is afraid he’ll lose voters on the right if he protects refugees, and centrists if he allows harm to the court. He is triangulating – and failing at leadership. His choice is to drop his refugee exception and stand firm, or let Netanyahu, Shaked and company begin the demolition of judicial power to restrain the majority.
If Kahalon concedes, he’ll show that there’s really no room in the Israeli right for supporting the rule of law and minority rights. But perhaps that was inevitable.