The timing of Monday’s unprecedented Supreme Court ruling has made it all the more polarizing, critics say, not only because it landed during a brutal war in Gaza, but also because a delay of a few weeks might have produced a different outcome.
The recent retirement of two justices, including the departing chief justice, Esther Hayut, imposed a deadline of mid-January to publish a decision, after which they would have been ineligible to participate in it.
The hearing took place on Sept. 12, when the full panel of 15 justices heard a case together for the first time in Israeli history — a measure of the fatefulness of the debate. They were weighing the validity of a law that was designed to curb their own power, giving the government freer rein to act — part of a judicial overhaul plan that had prompted months of mass protests, exposing deep divides in Israeli society.
A month later, both Chief Justice Hayut and Justice Anat Baron turned 70, the mandatory retirement age for justices. By law, they had only three months after retirement to render a decision.
In the meantime, as the court acknowledged in its ruling, the deadly Hamas-led assault occurred on Oct. 7, leaving Israel badly shaken and setting off a war that is still raging.
“The reality of our lives changed beyond recognition,” the justices wrote, “and we have since been involved in difficult and determined fighting against murderous terrorist organizations.”
Last week, in an unprecedented move, a draft of the ruling was leaked to a local broadcaster, tipping off the nation that the court planned to strike down the law, although it was unclear if that impacted the timing of Monday’s announcement in any way.
The contentious law remained on the books, barring judges from using the standard of reasonableness to review government decisions, and given the looming deadline, the justices said, they went ahead with the ruling. By the slimmest margin, 8 to 7, the court struck down the law.
Chief Justice Hayut and Justice Baron were in the majority, suggesting that without them, the court would have upheld the law. New justices have not yet been chosen to fill out the court.
Monday’s decision also pre-empted any possible attempt by the government to delay the court ruling. The leader of Shas, an ultra-Orthodox party that is a key partner of Prime Minister Benjamin Netanyahu’s right-wing governing coalition, had started promoting a bill to postpone the publication of the ruling by several months, removing the two retiring justices from the decision.
Shas issued a statement late Monday expressing disappointment that its plan failed, “and the court rushed to publish the decision.”
Opponents of the government’s efforts to curb the authority of the court hailed Monday’s decision.
“The Supreme Court ruled today that the government and its leader cannot act with extreme unreasonableness. This is a historic day,” The Movement for Quality Government in Israel, the principal petitioner against the law, said in a statement.
Supporters of the government’s judicial overhaul plan lamented the timing of the ruling to allow the inclusion of the opinions of Chief Justice Hayut and Justice Baron.
“In what may be remembered as one of the most unfortunate actions in the Court’s history, the Supreme Court has rushed a divisive decision, in the midst of a war — simply for the benefit of two retired Supreme Court Justices who wish to leave their personal stamps on Israeli jurisprudence,” Prof. Moshe Koppel, chairman of the Kohelet Policy Forum, a conservative and libertarian research group that championed the judicial overhaul, said in a statement.
Israel’s Supreme Court was long considered a bastion of the country’s liberal elite but more conservatives have joined its ranks in recent years.
It was a “small and fragile majority” that ruled on Monday, said Yedidia Stern, an Israeli law professor and president of the Jewish People Policy Institute, an independent research group, who was involved in efforts last year to broker a compromise over the government’s judicial plan. “Two of those justices are no longer presiding in the court.”
Without them, he added, the court “would likely have a majority take the opposite view.”
Aaron Boxerman contributed reporting.
