Israel’s top court strikes down key part of judicial overhaul, reigniting divisions as war rages

Israel’s Supreme Court on Monday struck down a controversial government plan to limit the powers of the judiciary, in an unprecedented move that reignited fierce tensions in the country as Prime Minister Benjamin Netanyahu wages war against Hamas in Gaza.

The court ruled, by eight votes to seven, that a government amendment to the so-called reasonableness law should not stand. The bill had stripped the Supreme Court of the power to declare government decisions unreasonable, and was the first major piece of a multipronged effort to weaken the judiciary to be passed by the Knesset, Israel’s parliament, last year.

The verdict reopened an emotional and heated debate that had raged in Israel throughout 2023 but was sidelined following Hamas’ attacks on October 7. And it could cause splits within Israel’s war cabinet, made up of Netanyahu and two prominent critics of his efforts to overhaul the courts.

Netanyahu’s next moves will be watched closely by all sides, with the threat of a constitutional crisis looming should he attempt to push ahead with the controversial change.

In its ruling, the court said it rejected the amendment because it would deal a “severe and unprecedented blow to the core characteristics of the State of Israel as a democratic state.”

The law, which came into effect after it was passed in July, took away the court’s power to veto government decisions based on them being “unreasonable.” Vast swathes of Israel’s population opposed the change, according to opinion polls, which critics said would erode the independence of the courts and harm Israel’s democracy.

Its passage caused huge protests – a regular sight in Israel’s cities since Netanyahu unveiled his judiciary agenda – and prompted thousands of army reservists to threaten not to show up to work.

Among those opposing the plans were the two fellow members of Netanyahu’s war cabinet. Yoav Gallant, the minister of defense, became the first member of Netanyahu’s pre-war cabinet to publicly oppose his plans in March, leading to his temporary dismissal before he was reinstated. And Benny Gantz, the leader of Israel’s opposition National Unity party, led protests against the efforts earlier in the year.

Following the verdict Monday, Gantz said the court’s decision “must be respected.”

“These are not days for political arguments, there are no winners and losers today. Today we have only one common goal – to win the war together,” he said.

“After the war, we will be required to regulate the relationship between the authorities and enact a basic law that will also anchor the status of the basic laws.”

Israel’s allies, including the United States, have previously expressed concern about the overhaul. US President Joe Biden told the New York Times in July that Netanyahu was risking the US-Israeli relationship should the overhaul pass without broad consensus. The amendment was passed in the Knesset without a single vote from the opposition, which boycotted the vote.

Netanyahu’s allies criticized the court’s decision Monday.

National Security Minister Itamar Ben-Gvir called the ruling “illegal,” saying it was harming Israeli forces fighting in Gaza.

“This is a dangerous, anti-democratic event – and at this time, above all, a ruling that harms Israel’s war effort against its enemies,” Ben-Gvir said.

Minister of Justice Yariv Levin, the architect of the judicial overhaul plans, called it “the opposite of the spirit of unity required these days for the success of our fighters on the front.” The Israeli prime minister’s Likud party said the ruling was “unfortunate” as it “is against the will of the people for unity, especially during wartime.”

Opposition leader Yair Lapid said in a post on X that the Supreme Court had his full backing as it “faithfully fulfilled its role in protecting the citizens of Israel.”

“If the Israeli government again starts the quarrel over the Supreme Court then they have learned nothing,” he said. “They didn’t learn anything on October 7, they didn’t learn anything from 87 days of war for our home.”

Reasonableness doctrine

The reasonableness doctrine is not unique to Israel’s judiciary. The principle is used in a number of countries, including the United Kingdom, Canada and Australia.

The standard is commonly used by courts there to determine the constitutionality or lawfulness of a given piece of legislation, and allows judges to make sure that decisions made by public officials are “reasonable.”

The prime minister and his supporters have argued that the Supreme Court has become an insular, elitist group that does not represent the Israeli people. They say it has overstepped its role, getting into issues it should not rule on, and the proposed changes would correct that trend.

But critics say Netanyahu pushed the overhaul forward to protect himself from his own corruption trial, where he faces charges of fraud, bribery and breach of trust. He denies any wrongdoing.

The government bill amended one of Israel’s Basic Laws, which, in the absence of a formal constitution, act as an informal one. Until Monday’s ruling, the Supreme Court had never before struck down a Basic Law or an amendment to one.

In their ruling, 12 out of the 15 judges agreed that the court had the authority to nullify a Basic Law in “extreme cases.” Only eight of the 12 thought this was an extreme case.

The debates over Netanyahu’s efforts were paused on October 7, with Hamas’ attacks on Israel prompting the formation of a war cabinet and seemingly suspending the back-and-forth of Israel’s sharply divided politics.

But on December 29, a leak of a draft document that pointed to Monday’s ruling caused the issue to reemerge.

Reacting to the leak, Minister of Justice Levin claimed that “citizens of Israel expect the Supreme Court not to publish during a war a ruling that is controversial even among its judges.” The speaker of the Knesset, Amir Ohana, added that “a time of war is certainly not the time to establish a first precedent of its kind in the history of the country.”

But the Supreme Court was required to release its ruling by January 12, as two justices hearing the case have retired and are required by law to submit their final rulings within three months of stepping down.