With Israel at War, Netanyahu's Judicial Coup Is Back With a Vengeance - Haaretz Today - Haaretz.com
On Wednesday evening, a sensational news item briefly eclipsed the Gaza war: an unprecedented leak of one of Israel's most highly anticipated legal rulings. But first, the Channel 12 news anchor had to remind people what the case was. Back in July, the "reasonability standard" law passed and became the epicenter of the Netanyahu government's searing, divisive judicial overhaul plan. "Remember?" the anchor quipped. The leak says the Supreme Court (sitting as the High Court of Justice) is preparing to strike down the amendment to Israel's Basic Law – a massive setback for the government.
This is big news. Back in September, all 15 justices – an unprecedented number – heard challenges to the law limiting the court's dependence on the "reasonability" standard for judging executive actions. The law was the first, and so far only, major piece of legislation the government had enacted as part of its plans to restrict judicial independence. The law would leave Israeli citizens even more exposed to an executive branch with almost no institutional constraints.
The great leak has many scandalous tributaries. For one, there is no precedent in Israel for leaking a top court ruling – whodunit, and what it will mean for the integrity of the judicial process, will take years to answer.
Next, the situation is a weird replica of America's 2022 Supreme Court pre-ruling publication of the Dobbs verdict, in which the conservative majority struck down the constitutional right of American women to an abortion as per the 1973 Roe v. Wade decision. It was considered the worst breach of Supreme Court confidentiality in U.S. history.
No one actually knows whether the Dobbs decision was leaked by a liberal or conservative, and a follow-up investigation failed to uncover the facts. But in Israel, the tactic that looks copy-pasted from America was clearly intended to advance the judicial overhaul itself. Why?
First, the journalist who was anointed to receive the draft ruling (far less final than Dobbs when it was leaked) was Amit Segal, one of the country's most prominent right-wing television personalities. Faithfully echoing the government, Segal has been an outspoken critic of the legal establishment. He and all other proponents of the overhaul have hammered home the notion that the Supreme Court striking down this flagship legislation would be tantamount to a bloodless, but fearsome, dictatorial coup.
So, when Segal reported that eight of the 15 justices were planning to do just that, whoever sent it to Segal knew that he would frame it as a horror. Perhaps the source wished to create a wave of public pressure against the decision, hoping a justice or two might yet change their mind or reasoning.
Ido Baum, among the country's wisest legal analysts and a faculty member at the College of Management Law School, wrote in his regular column in TheMarker that the source apparently sought to "spark a campaign of delegitimization of the court's decision."
If so, the move dovetails seamlessly with a general campaign of delegitimization of the Supreme Court for at least a decade under Netanyahu's leadership.
That campaign never had the best interests of democracy or the liberal constitutional order in mind, as it mendaciously claimed. Rather, undermining the top court, and constraining its ability to review executive action, is important to achieve this government's desired policy outcomes. The fanatical prewar governing coalition has kept its eyes on the prize. These parties want to cut down civil liberties, constrain the media and civil society, suppress or even disenfranchise Arab citizens, deepen the theocratic influence on Israeli public and private life. And the jewel in the crown: they want Israel to rule permanently over Palestinians in all occupied territories through brazen, institutionalized inequality forever.
Despite, or because of, October 7, that's precisely what the prewar coalition parties want today. The original judicial overhaul plans may be on hold, but the government has even more dangerous room to extend its powers unchecked and unnoticed. The public is distracted, busy panicking or rallying round the flag. In an unpublished paper, the constitutional law scholar Adam Shinar of Reichman University ticked off the multipronged attacks on democratic practice during the war: police have discouraged or openly suppressed public expressions of dissent, arrested Arab but also some Jewish citizens for overblown (or no) charges regarding critical public or social media statements. Emergency legislation has been used to target foreign media outlets deemed unfriendly and employed to worsen conditions in Israeli prisons.
Add to these the emergency regulations chipping away at due process for Hamas and other militants from Gaza captured following the October 7 attack – allowing them to be held longer without seeing an attorney – and a bill making it harder for them to have any representation at all. The latter proposal is from the head of the Knesset Constitution, Law and Justice Committee, Simcha Rothman. I have less than zero love for these prisoners, but I do rather love due process.
Naturally, Religions Zionism MK Rothman had something to say about the leak. Overturning July's legislation by a slim majority would be "an act of national irresponsibility," he wrote on X. Like other opponents, his main message implored the Supreme Court to join the "spirit of unity" and "avoid unnecessary divisions among the nation." But it's been clear all along that "unity" for this government is another word for "surrender."
Read more about Israel's war against Hamas:
■ How Starbucks got embroiled in the Israel-Hamas war
■ Sanctifying the indiscriminate killing in Gaza is Israel's second defeat
■ There's no way to 'explain' the degree of death and destruction in Gaza
■ Israel's deliberate starvation of Gaza's civilian population is a war crime
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