As protesters continue to pour into the streets throughout Israel, condemning a bill passed on Monday by the right-wing government to blunt the power of the country’s judiciary, the Israeli Supreme Court faces a momentous decision: How should it respond to a challenge to its own power?
The new law limits the rationale the court can use to strike down decisions by the government. Yet as soon as it passed, petitions asked the justices to do just that, by voiding the law itself.
Analysts said the court has essentially three choices: 1) strike down the law; 2) narrowly interpret it to curb its impact; or 3) simply not decide by refusing to hear any of the petitions.
The bill was passed by the Knesset, Israel’s Parliament, as part of a broad plan by Prime Minister Benjamin Netanyahu’s government to overhaul the judiciary by taking control of how judges are selected and eliminating the power of the courts to review certain cases.
The protesters say the bill, and the broader plan, are an attack on democracy because the courts are the primary check on the Knesset and the prime minister in Israel’s parliamentary system. Mr. Netanyahu and his allies defend the law as a protection of democracy, a necessary means of preventing judges from interfering with the decisions of elected lawmakers.
Any decision by the court — including a refusal to hear a challenge to the new law — has implications for the waves of protest, and counterprotest by the law’s supporters, engulfing the country.
“If the court dismisses the petitions, that could deflate the protests” against judicial overhaul, said Adam Shinar, a law professor at Reichman University in Herzliya, Israel. “But if the court acts against the government, that will inflame its critics. So you have all these strategic political considerations.”
Law and politics inevitably become entangled when a high court is faced with a serious challenge to its own authority, other analysts said.
“In these potentially revolutionary moments, it’s really unclear what courts should do,” said Kim Lane Scheppele, a sociologist at Princeton University. “There are two theories. One is that the court should strike back hard against the government. But this can risk confirming the perception that the court is out of control. So the other theory is that the court should be cautious and follow the law to show the criticism is exaggerated. And then maybe that makes the government back off.”
But in Israel the justices have never faced a challenge from the government like this one.
Monday’s bill says the court may no longer use the legal standard of “reasonableness” to overturn government decisions. It was enacted as an amendment to one of Israel’s Basic Laws, which the justices have never previously struck down.
Israel was founded in 1948 without a constitution. Ten years later, the Knesset began passing what are known as the Basic Laws, at first to set forth the powers of the country’s governing bodies….
2023-07-25 00:33:05
Post from www.nytimes.com
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