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.

First Step in Israel's "Legal Revolution" - "Reasonableness" Bill Passes

There is much to write about today's events in Israel.  Unfortunately, none of it is good news.  The Israeli Knesset today passed the third and final reading of a bill - called the "reasonableness law."  This was the first major bill that is a part of a collection of proposed laws put together by the current Justice Minister Yariv Levin.  The laws are intended to weaken the power of the Israeli Supreme Court dramatically, reduce its independence and enable the Knesset to override decisions of the Supreme Court (even after the party in power has hand-picked the justices).  

The right in Israel calls this all "judicial reform" while everyone else, from centre-right to left calls it a "legal revolution" or even a "coup."  

I have read various articles attempting to explain away these various proposed changes.  Some commentators have used the United States as the barometer for analyzing the changes and claim that if it only moves the Israeli legal system towards the system in the U.S., it must be a good thing.  Given the recent news about influence peddling in the U.S. Supreme Court, as well as the types of decisions the U.S. Court has been releasing, it seems hard to imagine that anyone who is sincerely interested in an independent and robust judiciary would be using the U.S. as a model.  Sorry to offend my U.S. readers.

Others have argued that changing Israeli judicial precedents through legislation is only a way of "restoring balance" to the system and balancing out the power of the judiciary against the power of the other branches of government.  But the Israeli Supreme  Court has actually interfered with the government on relatively few occasions.  For the most part, Prime Minister Netanyahu and the various right wing governments that he has led have enjoyed a great deal of freedom of action and have seen relatively little practical interference from the Israeli Supreme Court even though members of the current government that he leads argue that the country is "ruled" by the Supreme Court.  

But the concern in Israel - and the impetus behind the demonstrations is not one particular bill or law.  If the only law being proposed by the current government was this "reasonableness" law - (which is intended to change Israeli common law and bar judges from using "unreasonableness" or "extreme unreasonableness" as a grounds for judicial review of legislation of governmental action), then the Israeli public might not be so riled up.  

But the current government has 64 seats.  15 of those seats are from the Religious Zionist Party which is mostly made up of xenophobic, homophobic, fascists who would like turn Israel into an Iranian type regime, run according to their version of halacha - Jewish religious law.

Another 17 Knesset Members are from ultra-religious parties.  While these members are mainly interested in obtaining financial support for their religious institutions and their constituents, most of them would also like to see a State ruled by halacha.

Of the remaining 32 Likud members in the current governing coalition - there seem to be several more who are supportive of these extremists.  Yariv Levin, the current Minister of Justice, is one of these members.  His presentation in January 2023, that I have written about previously, was nothing less than a proposal to disembowel the Supreme Court of Israel and leave it with little power to serve as an independent judicial arbiter.

Just yesterday, the leader of one of the Religious Zionist parties, and the current Minister of Internal Security, Itamar Ben-Gvir stated that this "reasonableness law" was only the first step - the appetizer - and that the whole main course was yet to be served. Last night - he said "the salad bar is open."  

Surely, of all people, Israelis know what can happen to a democracy when fascists start passing laws.  It can happen quickly and dramatically.  And a sizeable number of Israelis recognize this and are out in the streets demonstrating and protesting.  In fact, they have been demonstrating since January 2023 when Levin first announced his plans - in a press conference that reminded me of a scene from one of the Batman movies where the villain announces his plans to take over the world.

Some have characterized Prime Minister Netanyahu as the "adult in the room" and argued that he would not let Israel become undemocratic.  But Netanyahu has his own concerns.  He is in the midst of a criminal trial and looking to end these proceedings and avoid jail time.  So while some Likud members were pushing him to try and reach some kind of compromise - his right fascist flank was threatening to leave the government and cause it to fall if he were to agree to any kind of compromise.  As a result the third reading of the bill passed 64-56.  No Likud members dared dissent for fear of being the ones to bring down the government.  The opposition Knesset members boycotted the third vote and the bill passed 64-0.

Senior members of Netanyahu's government are talking about next steps.  They have many different plans.  Firing the Attorney General and other non-political office holders in Israel without any concern about judicial interference.  Dismantling the Israeli bar association.  Putting the convicted criminal Aryeh Deri back into office as the Minister of Finance.  Passing a law to allow the current government to appoint all of the judges instead of using a balanced committee.  Passing a judicial override bill to overturn any decisions of the Supreme Court by a simple majority.  And even these laws are only a few of the more than 82 laws that members of this government are proposing.  Oh I forgot the proposed "discrimination law" that allows a company or an individual to refuse to serve others (LBGTQ+? Arabs? Secular Jews? Women?) because of "religious reasons."  (Granted this type of law has been upheld twice in recent years by the current U.S. Supreme Court but I think that was related to my earlier point...)

As a result of all of this, hundreds of thousands of Israelis are protesting.  Two days ago, more than 50,000 Israelis began a two day march from Tel-Aviv to Jerusalem - where they arrived in time to protest all day today in front of the Knesset along with hundreds of thousands of others.  But the bill passed anyways - and there are more bills to follow.  I anticipate that the protest movement will now ramp up the type and volume of protests.

One of the discussions has centred on military service.  Israel has a "people's army" where everyone is conscripted (even though there are many exemptions).  Afterwards, people serve in many different roles in a voluntary capacity.  Many of the volunteers, including Israeli fighter pilots and many others, have announced that they will refuse to appear for purely voluntary missions.  The number of military personnel sharing these sentiments has been growing.  The right wing response is that the army should be totally separate from politics - and that soldiers should report for duty no matter what.  In fact, some would like to pass a new law to deal with these issues and penalize those who refuse to appear for duty.  But the social contract that binds the soldiers to the state and to reporting for duty is based on their understanding that they are reporting to a democratic regime.   A large number of Israeli soldiers will refuse to report for duty if the perception is that they are serving an autocratic regime.   

How and where do we draw the line?  Israeli soldiers do not want to harm the state and want to defend it at all costs from external enemies.  But they do not want to carry out illegal orders or serve as accomplices for a regime that makes illegal or immoral decisions.  We may not be there yet - but in a government that includes 15 far right extremists, some of whom are cabinet members - soldiers are concerned that there may not be any judicial oversight to actions they are now asked to carry out.  That has already started to happen to the Israeli police forces - which are now being overseen by Ben-Gvir.

This government's short-sighted legal "revolution," enabled by Netanyahu out of fear for his own freedom, is causing economic problems as well.  Companies, including Israeli high-tech companies, are talking about leaving or reducing their investments in the country.  Individual Israelis are talking about leaving and finding work elsewhere.  The Israeli Shekel has sunk dramatically against other currencies (it fell by approximately 10% today).  There is a great deal of uncertainty and it is likely to get much worse.  Sadly, it appears that Netanyahu's legacy will be one of severe damage to Israel's unity and its fabric as a vibrant democracy - all in the interest of saving his own skin.  One commentator called it "Hanina o Heres" - "Pardon - or Destruction" meaning that Netanyahu would either get himself a pardon or he would take down the whole society with him.

All of this comes just two days before Tisha B'Av, one of the saddest days on the Jewish calendar on which we remember and commemorate the destruction of the first and second temples in Jerusalem.  The standard and traditional Jewish Rabbinical explanation - is that the Temples were destroyed (in 586 B.C.E. and then again in 70 C.E.) because of "baseless hatred" between different Jewish groups.  In an address this evening in Israel, one of the opposition leaders, Benny Gantz, warned that we must learn from the lessons of Tisha B'Av and find ways to work out our differences rather than take actions that could lead the country to an ever greater crisis.  Sadly, there is no sign, at this point, that Netanyahu's current government has any interest in approaching these matters reasonably.

I normally try to include some other comments in my blogs about different issues but I think I will leave that to my next blog.  Unfortunately, I have probably been watching and listening to far too much news and that is not giving me a warm and fuzzy feeling to end on a humorous note.

For those fasting this coming Thursday, I wish everyone a meaningful fast and I hope that Jewish people everywhere, though especially in Israel, will take the time to think about where we are today and what we need to do to stop things from deteriorating further.