Israel’s Supreme Court decides, by the thinnest of margins, to overturn an amendment to a “Basic Law” passed by the Knesset. Is that a good thing?

This is a segment from The “Days of Future Past” Edition.

And now it’s time for our first discussion.

So Allison, bold news from the old Supreme Court, eh?

Yeah, yeah.

Blast from the past, thinking about the judicial overhaul, right?

On Monday evening at a quarter to seven, the Supreme Court put out a 743-page ruling.

If you’re counting, are we counting, Noah?

I counted.

Noah counted.

He counted.

He counted, and that means 227,769 words or 1,523,007 characters.

Did you count that too, Noah?

I counted each one.

That includes the spaces between the letters.

How long did it take, Noah?

Oh, you know.

All these words, all these letters struck down for the first time ever in the country’s history a new clause in the basic law duly passed by the Knesset, this one adding to the existing basic law on the judiciary a caveat that said, “Those holding judicial authority according to the law, including the Supreme Court acting as the high court of justice, will not deliberate on the matter of the reasonableness of a decision by the government, the prime minister, or any other minister, and will not issue a degree in such a matter, including a decision on matters of appointments or the decision to refrain from exercising any given authority.

” Very clear.

As we have discussed, ad nauseum, ad absurdum, ad infinitum, ad mortem, and often adamantly, adroitly, and ad umbrally, as it was debated and passed last summer.

In short, this new clause in the basic law took away from the judges an important tool of what is known as judicial oversight.

That’s the court’s ongoing efforts to make sure that the legislature and executive branches of government do things that are on the up and up, that are kosher, that are okay.

This tool, awkwardly known in English as reasonableness, essentially allowed judges to strike down laws, policies, and political appointments on the grounds that they don’t make any damn sense, that they’re unreasonable, even if they don’t technically contravene any particular law on the books.

When the court struck down decisions by the governments of beachfront cities to build expensive condos right on the water, it did so on the grounds that it was not reasonable to give private developers sole access to land that belongs to the public that the public ought to be able to enjoy.

When the Supreme Court decided that Arie Deri, head of the Shas party, could not serve as a minister only months after he had pledged in court as part of a plea deal that he was leaving politics and public service, it did so partly on the grounds that it was unreasonable for Deri to pay such small heed to a commitment that he made to a judge in a courtroom.

The reason why Prime Minister Netanyahu’s right-wing coalition voted 64 to 56 to outlaw the use of the reasonableness doctrine was because, as they saw it, the doctrine gave the courts too much ill-defined power, basically allowing judges to strike down laws, regulations, and appointments just because they weren’t to the judges’ tastes.

Anyone who has ever been in a fight over whose turn it is to unload the dishwasher knows that different people have different notions of what is and isn’t reasonable, and most everyone is most always sure that what they say is reasonable.

It’s plain, objectively reasonable.

If the judges wanted to strike down a law or a regulation or an appointment, advocates of the judicial reform argued, “Let ’em do so ’cause it conflicts with something in writing, not ’cause it just seems weird to them.

” This week’s ruling by the Supreme Court struck down the new clause in the basic law striking down the reasonableness doctrine, thereby making it kosher again for the judges to use it.

This week’s decision had two precedent-setting parts.

The first was the 12-3 vote that, in principle, the Supreme Court has the authority to strike down a basic law, even though basic laws have special constitutional status in cases when the Knesset exceeded its authority in passing the law in the first place.

Having decided it has such authority, the next thing the Supreme Court did was to exercise it by striking down the clause striking down the reasonableness doctrine.

This it did with an 8-7 decision, which is on the surface a very close decision, although when you get into the details, it is even closer than that because two of the majority of the eight are justices who have lately retired from the court, meaning that of the 13 justices who presently serve on the Supreme Court, seven oppose striking down the law striking down the reasonableness doctrine, and only six support it.

The reason why the ruling is 743 freaking pages long is because every justice included an account of his or her reasoning for her or his up-and-down vote.

But broadly, the logic for striking down the Knesset’s legislation was well described by Chief Justice Emerita Esther Hayut, who wrote, “Given the fragile, inadequate system of checks and balances that exist in Israel, the total cancellation of judicial review on the reasonableness of government and ministerial decisions renders meaningless a substantial part of the role of the court in defending the individual and public interest.

” The logic for not striking down the new legislation was well described by maybe the leading conservative justice on the court, Noam Solberg.

He wrote that there is nothing in Israel’s code of law that gives the courts the authority to overturn basic laws.

For that reason, the issue amounted to, “No complicated question.

The answer is ready-made before us.

” Reactions to the ruling were what you might expect, and then again, they weren’t, kinda.

Among people who see all attempts at judicial reform as an attempt to usher in autocracy, there was praise.

Haaretz’s Anshel Pfeffer, friend of the podcast, wrote that the decision, quote, “saved Israel’s fragile democracy, for now.

” Among the architects of judicial reform, the ruling was seen as judicial overreach, an attack on the autonomy of the Knesset.

Minister of Justice Yairiv Levine said that, with the ruling, the justices, quote, “took away the voice and the basic right of millions of citizens to equally participate in decision-making.

” All of this, on both sides, is what you’d expect.

What you maybe wouldn’t expect, though, is that few, if any, of the politicians on the right threaten to try to undo or undercut the ruling of the court, mostly saying that now, while we are at war, that’s a time for national unity, don’t rock the boat.

Still, you could feel the public square stiffen with new tension after the court published its ruling, and you could feel the return of some of the “us versus them” politics that defined our discourse up until the morning of October 7th.

So guys, Linda, what do we make of this historic Supreme Court ruling at this very, very fraught moment?

First of all, I think it really is a victory for Israeli democracy.

I mean, the government passed something.

The Supreme Court said, “No, that’s not right.

” And what the government passed, the basic law, is basically a constitution, right?

Israel has no constitution.

And so I see it as a victory of democracy for two reasons.

One, that the Supreme Court was willing to strike down a basic law, and that there was a large majority in favor of the Supreme Court’s theoretical ability to do that.

And that has important implications, I think, for the future as well, not just for this specific law.

And that beyond that, you didn’t have huge demonstrations in the streets by the right against the Supreme Court.

You didn’t have, which I kind of would have expected, and I think we would have seen before October 7th, hundreds of thousands of people coming out to demonstrate against the Supreme Court to threaten violence against the Supreme Court justices.

Remember what it was like in March when Netanyahu fired Yoav Golan, the defense minister, for daring to criticize something that Netanyahu said, and then hundreds and thousands of people came into the streets, and eventually he had to take it back.

So I think the fact that people who disagree with this decision said, “Okay, I disagree with it, but I’m not going to fight it.

I’m not going to.

” And I think it also means the end of the judicial reform.

It’s not, it’s dead, it’s not going to happen again.

And so for people who felt that the judicial overhaul was threatening Israeli democracy, I think it’s a big victory.

Noah, what do you think?

Well, the most obvious thing that I think, or the thing that I think most strongly, is that it was really a shame, I mean, a disastrous shame, how this happened with this ruling about something that’s so important being so very close, so very close that right now the standing court, if they were to hear it again, would have voted the opposite way.

We all know this for a fact.

There’s some relief in the fact that 12 of the 15 justices said that the Supreme Court has this right to strike down basic laws.

I’m really happy about that because that’s a big majority, and I agree that that’s the ruling that I would want to see.

I want to live in a country that, where the Supreme Court can strike down bad basic laws.

I also want to live in a country that has a reasonableness clause.

I think everyone who is an environmentalist like me would feel this way because it’s the reasonableness clause that is responsible for almost all of the most important environmental decisions in the country’s history over the last 30 years when we’ve had important environmental decisions because no one is taking the climate crisis and other problems of the environment so seriously in the Knesset that they are passing really vigorous laws about it and especially about land usage and stuff.

It’s always been the Supreme Court.

So I’m happy that that’s there, but I don’t agree with your characterization and everyone else’s characterization.

I’m almost on my own here, of this as a victory for democracy.

What I see as an environmentalist is that the reasonableness clause allows Israel, importantly, to act in a way that’s not consonant with democracy.

It allows the country to make decisions as an aggregate that the majority of voters would never make.

I think that that’s important, but when people on the right wing say, “You know what?

What this is isn’t a victory for—it’s certainly not a victory for the will of the people.

It’s a victory for people that want to put a check on the will of the people.

” I think that they’re right about that, and exactly what democracy is and what the relationship of the will of the people is to democracy is not 100% clear.

These are complicated issues, but I wouldn’t go around and celebrate it as a big victory for Israeli democracy, just as I don’t think that the judicial reform was the harbinger of the end of Israeli democracy.

The question is, what do we want this democracy to look like?

This happens to be more in line with what I want this democracy to look like, but I understand the anger of people on the right wing, and I’m so happy, as a final thing, that people accepted the authority of the court—everyone, almost—and that there were no protests in the streets.

That just seems like such a huge step back from a brink that we were really leaning far over on October 6th.

Alison, what do you think?

Well, you touched on, Noah, what we were discussing, again, ad nauseum, endlessly, endlessly, which is, what is democracy?

Do you define democracy as student council democracy, where the majority wins, in which case you’re right, it wasn’t a victory for democracy?

Or do you count it as a victory for liberal democracy, in which checks and balances prevail?

Can I just say one thing about student democracy?

I was the vice president of my student government in 12th grade, and we made all sorts of decisions, and then Mr.

Smith, who was our principal, he just, when he didn’t like the decisions, he just didn’t do them.

Not any of them.

He did think they were reasonable.

It was not in John F.

Kennedy High School in Silver Spring.

It was not democracy.

It was not real democracy.

Your decisions were not reasonable, Noah.

I’m sorry that I broke in.

Okay, now I’ve got to get back on track here to try to think about what I was saying.

There are different kinds of democracy.

Some is student council democracy, where just majority rules, and other is— Liberal democracy, where you preserve your checks and balances, what we’re taught when we grew up in America, that an important part of this particular vision of democracy is that it’s not purely majority rules, that in one arena, electing the ruling power and the prime minister, that there are other elements to the democracy, which ideally, also the voters have a say in, but unfortunately in the case of Israel, there really aren’t any kind of those mechanisms, so we have to rely purely on the Supreme Court.

If you want to talk about it at high school, you should feel free to.

Listen, because of the war, everything was muted.

There weren’t real celebrations of this decision.

There weren’t real condemnations.

Nobody was on the streets.

I don’t think it was some great triumph or victory like you do, Noah, that no one was out on the streets celebrating or protesting or whatever.

The fact that we weren’t was a sign of how, in perspective, we have put this because everything else is so freaking awful and terrible, that it’s not the greatest thing on earth that it happened, and it’s not the worst thing in the world that it happened, because our perspective and the lens that we’re looking through it has changed.

But another reason not to celebrate so much, and I think Anshul qualifies this in his piece, which isn’t some sort of full-scale celebration, is how temporary this is.

As you pointed out, that the majority relied on two justices who have effectively retired.

There was actually a deadline by which this decision had to be published after their retirement.

A decision in which they participate can only be published within X amount of months, and Netanyahu and Crewe tried to delay this even longer.

They tried to introduce legislation, I guess through Ariyeh Derry, trying to change the rules and saying, “No, no, no, it doesn’t have to be published right away anymore because of the retirement of the justices.

It can be postponed,” because they wanted it to be after they wanted to kick the can down the road.

That was vigorously rejected by the court and insisted on publishing it now, even though we are mid-war.

Can I just add one more thing?

I think it has implications for the war and for Israeli soldiers potentially being charged with war crimes in international courts as well, because the idea has always been that if the army can investigate, if Israel can investigate itself and has a strong enough Supreme Court, then you don’t have to charge Israel in international fora with war crimes for soldiers.

If this is seen, which I think it is, as strengthening the Supreme Court, that could have implications for the continuation of Israeli soldiers and officials not being charged in international courts.

I think it affects morale too, because some of the key fighting soldiers and units were also very invested in the fight against the judicial overhaul and the fact that it’s not moving forward.

It’s encouraging to those who were willing to suspend their military reserve service while they were protesting and then as soon as war came, jumped into the fray.

Though presumably discouraging to a lot of other people in the same way.