Israeli Chief Justice Hints That Judges Will ‘Carry Out Their Jobs’ Regarding the Nation-state Law

Esther Hayut, however, did not directly comment on the debate over whether the High Court can or should overturn the new Basic Law that declares Israel the nation-state of the Jewish people

Supreme Court President Esther Hayut, President Reuben Rivlin and Justice Minister Ayelet Shaked in Jerusalem, August 9, 2018.
Olivier Fitoussi

Supreme Court President Esther Hayut said Thursday that Israel’s judges “are obligated to carry out their jobs without trepidation and without bias,” indirectly commenting on threats by Justice Minister Ayelet Shaked that if the High Court rules the new nation-state law unconstitutional, a “war between the branches” of government will break out.

“This is how we do it and how we will continue to do it,” Hayut said, adding that “as judges, we have no master over us on matters of judgment other than the rule of law.”

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Hayut was speaking at the swearing-in ceremony for new Supreme Court Justice Alex Stein at the President’s Residence in Jerusalem.

She said she was speaking in response to the “continued deterioration of the public discourse and the use of worrying terminology taken from the realms of natural disasters and hostile conflicts.”

Hayut also provided veiled criticism of what Shaked has said on the so-called war between the branches. As Hayut put it, she wants the Israeli discussion to remain respectful, businesslike and unifying; everyone in the government is bound by such an approach because they are “public servants and trustees.”

Shaked spoke after Hayut at the ceremony but did not mention the disagreement over the High Court of Justice’s authority to rule on the constitutionality of Basic Laws in light of petitions against the law declaring Israel the nation-state of the Jewish people.

In his speech, President Reuven Rivlin said this disagreement should be settled in a Basic Law on legislation.

The conflict could “harm our democratic system, and the correct way is not to begin a war between the branches but to arrange the relationships in a Basic Law on legislation that would set the limits,” Rivlin said.

Shaked praised Stein, saying she was sure he would provide a major influence in buttressing the rights of criminal suspects.

Stein will be a “source of pride for the immigrants from the countries of the former Soviet Union,” she said. “This is a huge community with a rich and exceptional cultural and intellectual [heritage] that is still not represented adequately in the legal system, and whose integration into it is a national mission.”

Stein, 60, was born in the Soviet Union and immigrated to Israel with his parents. He is the sixth Supreme Court justice appointed under Shaked; the court has 15 justices.

“The Supreme Court today is more diverse, better reflects [the population] and is more balanced than the court three years ago,” said Shaked, who has been justice minister since May 2015 after being appointed by Prime Minister Benjamin Netanyahu.

Stein was appointed in February with Shaked's support, despite criticism that he has not lived in Israel for 15 years. Stein was a professor at Brooklyn Law School for the past two years, after teaching for 12 years at the Cardozo School of Law at Yeshiva University in Manhattan.

He returned to Israel last month with his family. He taught at the law school of the Hebrew University of Jerusalem, eventually becoming the school’s deputy dean, before leaving Israel for New York in 2003. Stein has been a visiting faculty member at a number of American law schools including Yale.

He is an expert on the rules of evidence. In his legal writing, Stein has not addressed matters of public law and has not written about Israeli law for 15 years, which prompted questions about his suitability as a candidate for Israel’s Supreme Court.

Shaked has refused to comment on who recommended Stein to her, but sources have told Haaretz that a number of his colleagues from Bar-Ilan University, who have written articles with him, connected them.

Prof. Ron Shapira, the president of the Peres Academic Center in Rehovot, also recommended Stein; Shapira is considered close to Shaked. The justice minister has said she tapped Stein because he was a “legal star” and a “conservative.”

Colleagues describe him as a “legal positivist,” an approach that views law as a science that supports limiting the law and judicial activity to what is outlined in written laws and regulations rather than being guided by values. Even though many of his colleagues describe him as an exceptional legal thinker, they were surprised that Shaked chose him.