Israel's most influentialSupreme Court President Esther Hayut

Israel's chief justice isn't afraid to maintain the court's independence, even when it means making politically explosive decisions. She'll most likely be put the the test in a question of whether Benjamin Netanyahu can keep the prime minister's seat while standing trial.

Ido Baum
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Supreme Court President Esther Hayut in Haifa, January 2019.
Supreme Court President Esther Hayut in Haifa, January 2019.Credit: Eran Gilwerg
Ido Baum

Nothing goes smoothly for the chief justice, Esther Hayut, but she’s not one to give up easily. She has no management experience and has never taken part in political street fights, but life has prepared her for the challenges that began even before she became Supreme Court president. Things are only expected to get rougher during her remaining three years in the post.

Hayut was raised by a single mother after her Holocaust survivor parents divorced and her father left Israel. She grew up in Eilat and started her legal career in commercial law, working at the firm of former Finance Minister Haim Zadok and then becoming one of Israel’s most admired judges.

Even before becoming Supreme Court president in October 2017, she blocked an attempt by then-Justice Minister Ayelet Shaked to end the seniority method for appointing Supreme Court presidents – the most senior judge on the court serves as president. Shaked intended to keep Hayut out of the post but ultimately folded.

Since then, Hayut has been waging a near-daily campaign to maintain the public’s faith in the court system. She has faced two major crises.

The first started with an investigation by the TV news magazine “Uvda” that revealed that judges and senior lawyers were fawning over then-bar association chief Efraim Nave at the bar’s conference in Eilat. They sought to be promoted by the committee for appointing judges, where Nave and Shaked were powerful.

Supreme Court President Justice Esther Hayut at an event in Nazareth, October 30, 2019.
Supreme Court President Justice Esther Hayut at an event in Nazareth, October 30, 2019.Credit: Gil Eliyahu

“They’ve put a mirror in front of us,” Hayut wrote after the “Uvda” report aired. Behind the scenes, she blocked judges from meeting with Nave without seeking permission. When she found out that two judges had met with him secretly, she dropped them from the list of potential promotions. The message was clear.

Shortly afterward came the affair involving WhatsApp messages between Judge Ronit Poznanski-Katz with the legal adviser for the team investigating one of the corruption cases against Prime Minister Benjamin Netanyahu. Hayut and Shaked acted quickly and suspended the judge, who faced disciplinary proceedings.

After two Supreme Court presidents who avoided the media spotlight, Hayut isn’t being reticent amid repeated attacks on the justice system. Shortly after Likud backbencher Amir Ohana became justice minister, he said that some rulings by the top court didn’t necessarily have to be followed. Hayut responded swiftly, saying in a speech that “the path is short between his worldview and anarchy.” The two have maintained a working relationship, but little love is lost.

Meanwhile, right-wing parties in the Knesset haven’t hesitated to threaten judges, especially Supreme Court justices. The fact that the makeup of the top court is now more pluralistic than ever hasn’t blunted the threats, but the justices don’t shy away from explosive issues.

One example of the Hayut court’s independence is its ruling last year that individual Knesset candidates can be disqualified. Previously, only slates were disqualified – and both from the right and left in an attempt to provide balance. Hayut’s court disqualified Otzma Yehudit leader Michael Ben-Ari on the far right but not Hadash’s Ofer Cassif on the far left. Not surprisingly, the far right’s Bezalel Smotrich announced: “After the election, the High Court won’t be making decisions about us; we’ll be making decisions about it.”

Another clear example of independence was when Hayut’s court overturned a law mandating higher taxes on people who own three or more apartments, a cornerstone of Finance Minister Moshe Kahlon’s plan to lower home prices. Kahlon was a key member of the committee for appointing judges but had no extra sway.

Other explosive political cases await Hayut in the next three years. More than 20 petitions have been filed against Israel’s controversial nation-state law, which declares Israel the nation-state of the Jewish people. Does the Supreme Court have the power to strike down a Basic Law – which has constitutional status – if it finds that the legislation conflicts with Israel’s overall constitutional values?

Well before that question is answered, the court will probably have to rule whether Netanyahu can be prime minister while under indictment – and while standing trial.

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