When It Comes to Judicial Reform, Minister Shaked Is All Bark and No Bite

Supporters of Habayit Hayehudi were counting on Justice Minister Ayelet Shaked to bring the Supreme Court to its knees. Their hopes have been dashed.

An illustration showing Finance Minister Kahlon searching Justice Minister Shaked's bag as the latter hides a baseball bat behind her back. Justice Miriam Naor watches from her judge's chair.
Amos Biderman

Justice Minister Ayelet Shaked’s speech at the Israel Bar Association’s conference in Eilat this week was beautifully structured. Basically, it was a rant against the Supreme Court, but it was served up to the audience with an impressive coating of documents, citations and quotations by distinguished jurists from Israel and the United States.

Shaked began by flattering Supreme Court President Miriam Naor, saying: “With her at the head of the judiciary, we can all sleep soundly.” Those were the first and last kind words that Naor and her colleagues heard from the minister. Shaked devoted the rest of her remarks to delivering a series of hammer blows – albeit, couched in polite language – against everything that Naor and the other Supreme Court justices represent in their supposedly “activist” approach. Shaked spat out that term contemptuously, as though it were a stubborn nutshell that was stuck between her teeth.

Like many right-wing politicians, the minister from Habayit Hayehudi found it hard to swallow the Supreme Court’s recent decision to strike down the so-called “stability clause” of the natural-gas deal. She thought the bench would decline to hear the case because, as she put it, the justices would not feel comfortable ruling on the legal issue knowing that they’re not the ones who will have to pay the price for their decision. Naturally, she accepted the court’s adoption of 90 percent of the deal. That was fine. But when a majority of justices thinks that a clause that ties the hands of the government, the Knesset and the regulators for the coming 10 years is too much – Shaked balked. How dare the court!

Shaked painted a terrifying and gloomy picture of the situation in the wake of the ruling, with phrases like “an isolationist economy,” “a country that devours its investors,” “crossing of boundaries,” disrespect for “spaces of governance,” “black holes.” In a word, anarchy. But if the situation is so awful, how come it’s so good, according to the prime minister? And why haven’t the gas companies packed their bags and left in the wake of the ruling? Obviously the right formula will be found, and the gas will erupt from the ground. Have no fear, Yuval Steinitz is here.

For the past 11 months, Shaked, a computer engineer by training, has held a job that in the past was filled by some of Israel’s leading jurists and politicians. If she had any qualms about taking the post, she overcame them or is successfully hiding them. She came to the Justice Ministry with a coherent worldview and with various initiatives and bills she had previously sponsored in the Knesset, which aim to constrict, restrict and interdict the Supreme Court’s powers. But in those 11 months, she hasn’t managed to convert even one idea into legislation.

Her appointment as justice minister raised high hopes among supporters of Habayit Hayehudi. They fantasized about how this tough politician would bring the Supreme Court to its knees, diminish the status of the attorney general, and purge whatever needed purging. Their hopes have been dashed. They discovered that between the idea and the reality falls the Shaked.

Shaked wants to promote the judicial philosophy of Prof. Daniel Friedmann, one of her predecessors. In his two-year term as justice minister, in the government of Ehud Olmert, he never ceased to fulminate against the Supreme Court and its justices. After he left and the toxic dust settled and the bad blood dried, it emerged that nothing had actually changed. Unlike Friedmann, Shaked is not vulgar or driven by personal grievances against the justices. She is not looking for a fight, and as far as is known she maintains correct working relations with Justice Naor. After the speech in Eilat, she and Naor visited the local courthouse and then held a lengthy working meeting.

The justices, for their part, have not tried to delegitimize Shaked; at the practical level, she doesn’t worry them. Friedmann is an esteemed jurist, but he was an external appointment without a party backing him and he lacked political skills. Shaked is a judicial featherweight – but she is a proficient politician and her party is a powerful member of the coalition. However, she is constrained by the coalition agreement, which grants Finance Minister Moshe Kahlon’s Kulanu party veto power over any action liable to harm the Supreme Court.

The thinking today is that Shaked’s opportunity to foment the revolution she seeks will come early next year, when four Supreme Court justices will retire (Elyakim Rubinstein, Noam Sohlberg, Salim Joubran and Zvi Zylbertal). However, here, too, it won’t be smooth sailing for her. The law stipulates that to be appointed, a candidate for the court needs the support of at least seven out of nine members of the appointments committee. Three justices, Kahlon, plus at least one of the two members of the Israel Bar Association on that committee add up to five votes. Shaked will thus have to do business with Kahlon, who has no intention of turning the Supreme Court into a branch of Habayit Hayehudi or Likud.

In his speech at the event in Eilat, Kahlon sent a sharp and clear message to Shaked. And in a TV interview, he said, “With all due respect, she has only one vote” in the appointments committee. “I deflect attacks on the Supreme Court every week, like a goalie.” I asked him later what he thinks about the reforms that Shaked wants to make in the judicial system.

“I’m not against reforms,” he said, “but it can’t be done like this, in this way. To the contrary: She should create a serious, professional committee headed by a former Supreme Court justice that will sit for half a year and do thorough, comprehensive work.” Asked who he thought should head such a panel, Kahlon suggested former Justice Minister Dan Meridor.

In other words, for now, the Supreme Court justices can sleep soundly, and Shaked can work on her next speech.

In private conversations, Shaked concedes that her hands are tied; she can deliver good speeches but not the legislation she wants.

Even without Kahlon in the way, would Prime Minister Benjamin Netanyahu really go along with her – or would he block her at the moment of truth? Shaked is still high on the blacklist of a certain influential person in the Prime Minister’s Residence. The Netanyahus won’t be pleased to see her become the darling of the right-wing camp. And Netanyahu’s record (since the 1997 episode in which he failed in his attempt to appoint Roni Bar-On attorney general) shows considerable respect for the Supreme Court. For him, declaring war against the Supreme Court is like launching a ground invasion in the Gaza Strip. His voters are roaring for action, but he is judicious and careful and understands what’s good for him and for the country. And possibly, deep down, he’s a bit scared of the possible consequences.