Pre-Rosh Hashanah Blog 2023/5784- From Israeli Supreme Court to the Israeli National Soccer Team

There are so many things going on in Israel that it is difficult to keep up.  It would be nice to leave my law career and  become a full-time blog writer - but things are busier than ever in my real world -  so don't hold your breath waiting for that to happen.  That (and maybe some travelling) explains the limited number  of articles that I have written lately.  But as Rosh Hashanah approaches - I just could not avoid writing about yesterday's Supreme Court hearing - one of Israel's most monumentous days in its 75 year history - from a legal point of view.  I will try to keep my discussion of the hearing reasonably short and touch on a  few other topics as well before wrapping up with some Rosh Hashanah thoughts.

Supreme Court of Israel Hearing on "Reasonableness"

It would probably take a 10 page blog, at least, to cover this properly but here is the relatively short version.

The Israeli Supreme Court consists of 15 judges.  In most cases, only some of the judges sit in panels for hearings.  The Chief Justice, along with other members, selects the number of judges, in odd numbers to hear cases.  Usually, it is not more than 11 judges, for very serious issues.  So for example, earlier this year, 11 judges sat together to decide whether Aryeh Deri, the thrice  convicted fraudster, could serve as a cabinet member in the  current government.  The ruling was 10-1 against Deri.

As I understand it, yesterday was the first time in Israeli history where all 15 judges took part in a hearing.  For those interested in legal issues - this was like a national championship event of Supreme Court advocacy.  Don't  worry I will  tie in the sports analogy a bit later.

As you might recall, maybe even from reading one of my previous blogs, the current Netanyahu government passed a "Basic Law Amendment" which removes the power of the Israeli Supreme Court to quash (void or nullify) government actions and decisions on the basis of extreme unreasonableness.

There is a long history about how the Supreme Court of Israel came to have this power but it has been a part of Israeli jurisprudence since  the 1950s.  As you may know, Israel does  not have a written  constitution but does have a series of "basic laws."  The short version of all of this discussion is that the Israeli Supreme Court, over time, expanded its jurisdiction to conduct "judicial review" of other legislation using the  "basic laws" which it elevated to quasi-constitutional status.  This means that the Israeli Supreme Court decided (led by then  Chief Justice Aharon Barak) that it had the power to cancel laws or decisions put forward by the Knesset if they violated the basic laws.  One of the main tests was whether the law or action proposed was "extremely unreasonable."  This has been part of the Israeli legal landscape for more than  20 years and maybe closer to 30.  The Supreme Court views this power as one of the checks on the power of a Knesset majority government - which could, otherwise, effectively enact any laws or measures, including those which might trample on the rights of minorities.

But unlike the situation in Canada, for example, where there is a written  constitution that gives the Supreme Court these  powers expressly, the Israeli Supreme Court accrued these powers over time, through precedent, or "took them" as opponents might say.

So the current Netanyahu government decided to try and "set the clock back" or, in other words, overturn 30 years of judicial precedent by enacting a law to reduce the powers of the Court.  They called it a "Basic Law Amendment" to try and give it quasi constitutional status.

Opponents of the legislation  brought a petition to the Supreme Court to strike the law.  In another  bizarre historical first, the Israeli AG is supporting the petitioners and the government retained its own private lawyers.

So yesterday, the Supreme Court conducted a marathon 13 hour session to  hear arguments about what they should do. 

As you might know from reading my blogs - this  type of constitutional, academic, political, philosophical hearing - is the type of hearing that I would have loved to watch and hear (if  not participate in) in its entirety.  Alas I was swamped with other deadlines - and could only watch and listen to parts of it.   But it was riveting!  

Some of the  questions being  discussed....

Where does the  Israeli Supreme Court derive its power to overturn government legislation?

How are the rights of minorities protected in Israel?

How can  the Basic Law be amended? 

Where is the proper balance in a modern democracy between the legislative arm and the judicial arm of government?  

If you weaken the judiciary - is it only the voters that can "oversee" the legislature?

My "short" summary is that I have no idea what the Court will do with this.  It is extremely difficult and complicated and there is no easy answer.  One popular prediction is that the Court will send it back to the Knesset with a need for "amendments" but won't strike  it out entirely.  I do think it will be a split decision and we may wind up with as many as five or six different opinions.   It is almost certain that there will be several hundred, if not thousands of pages to read. 

Apparently, we  can expect a decision within two months, so maybe I will  write  a longer blog analyzing that when in comes out.  I could go on and on about the  hearing but  it would take  me a full day and I'm not even sure you would want to read all of it.  Some of you might...

One of my "mentions of the day" which has attracted quite a great deal of press attention in Israel - is the Netanyahu government's lawyer Ilan Bombach, who asserted that Israel's "hastily drawn Constitution" does not give the Supreme Court the rights it has exercised over its history.  That led to a heated and fascinating exchange.  There is a bit of truth to what Bombach asserted but far more rhetoric, exaggeration and spin than truth, in my view.  We will see if his advocacy approach was effective.  In my  experience, one has to be cautiously assertive, even forceful, while trying to avoid insulting the judicial panel hearing the case outright - but then again, I'm not the one appearing at the Supreme Court.

Sports News

On the same day that the Supreme Court had its hands full - the Israeli National Soccer team played a huge game against Belarus - in its ongoing campaign to earn a spot in the 2024 Euro Soccer Tournament.  A few nights before, Israel had eked out a tie against Romania.  Israel still has to play four more  games - two relatively "easy" ones -  two more difficult.  Sometimes the "easy" ones are the hardest to win.  The games will be  played in October and November - and will determine whether  Israel earns a spot  in the  June 2024 tournament.  From my research, it looks like Israel has not actually played in a major world  soccer tournament since 1970.  There is still a long way to go  but Israel's late goal victory over Belarus yesterday was a huge step forward for the Israeli side.  So the Israeli soccer team was playing some of its most meaningful soccer ever while the Supreme Court was hearing one of its most consequential cases.   Did that tie it in enough?

Entertainment

I was hoping to watch the latest "Jewish Double Header" that so many people  are talking  about - "Golda" and  "You are so not invited to my Bat Mitzvah."  I wanted to include discussions  of both movies in my blog - but that will have to wait until next time.  Very different types of content, of course, - but I'll let you know if there  is a way to tie the two together - other than temporal proximity of their respective release dates and the fact that there is  some  type of Jewish theme or content to both movies.  If you have seen one or both, I welcome all comments.

Podcasts

I used my subway and airline travel time rather productively in June and  July and into  August and listened to all 70 episodes of an Israeli podcast called "The Party of Thoughts."  This is a political, philosophical podcast that addresses contemporary (and not so contemporary) issues in Israel including the nature of the country as a  Jewish and democratic country, competing philosophical ideas about modern democracy, the Israeli-Palestinian conflict and many other issues. It is led by Micah Goodman, a research fellow at the Shalom Hartman Institute, and Efrat Rosenberg Shapiro, an excellent and very experienced moderator.  In Hebrew, it is called "Mafleget Hamachshavot" and is available on Spotify.  Goodman and Rosenberg try to  explain different sides on many different issues and try to present a wide range  of viewpoints with empathy, understanding and respect.  They are both self-described Orthodox Jews but many ideas are discussed with a very liberal  bent.  Different podcasts examine  ideas of Jewish religious leaders - from Biblical times through Rambam, Hassidic Rabbis, and more contemporary Jewish thinkers  from Rabbi Avraham Isaac Cook to modern day Rabbis.  Others deal with Israel's legal development and history including Israel's current constitutional status.   Many other issues  are addressed.

The podcast is all in Hebrew - so you should only try to tackle this if your Hebrew is up to the challenge.   If you are interested, Micah Goodman has given a number of lectures in English on YouTube and some are very good.  I wouldn't say that I agree with everything on these podcasts - but I found many of them to be thought provoking, reasonably balanced - and filled with all kinds of references and discussions - of historians,  philosophers, theologians, political scientists and others.  This is not confined to Jewish thinkers or ideas - but includes discussions of far Eastern ideas, Plato, Marx, Rousseau, Hobbes, Locke as well as many other philosophers and other thinkers.  I learned quite a bit and really enjoyed it.  Thanks to my daughter for  the suggestion.  It is apparently a very popular podcast in Israel, listened to many different people, including many on different sides of the political spectrum.

Ultimately, Goodman and Rosenberg propose various types of compromises - for dealing with the Israeli-Palestinian issue, the current constitutional crisis in Israel - and other issues.  Again, I'm not saying I agree with their proposals  but they are very interesting.

Holidays

I supposed it is now time to get into High Holyday mode.  I have been a bit slow off the mark because of general busyness with my work -  and  some travel and family occasions (happy events).  I don't  have any particular role for Rosh Hashanah (in the past, I have  often read some or all of the Torah readings or lead services) - other than to make a few dishes - including a honey apple cake - thanks to Tori Avey's delicious recipe.

For the following week, I will be leading Kol Nidrei and Neilah tefillot at our community services in a friend's  backyard - so if you (or anyone you know) happen to be in Ra'anana and  would like to join an egalitarian liberal service - let me know.  

That's about it for now - I wish everyone a happy and  healthy New Year - with hopes for good health, peace, less political  tension, more moderation - and lots of laughter.  Shana Tova.