Israeli Supreme Court President Esther Hayut and her colleagues on the High Court of Justice gave ample warning this week about their imminent decisions. Although courtroom deliberations don’t always provide an accurate forecast of impending verdicts, Hayut’s interrogations and protestations during the televised hearings of the petitions against Benjamin Netanyahu’s appointment to form a new government left no room for doubt: The judges were not about to assume the historic role assigned to the court by the petitioners, who claimed to be speaking for history itself.
The High Court’s refusal to block either Netanyahu’s appointment as prospective prime minister despite his impending criminal trial or the rushed constitutional upheaval mandated by Netanyahu’s coalition agreement with Benny Gantz dealt the harshest blow, ironically, to its greatest champions and staunchest defenders. They had expected more.
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After all, a High Court of Justice, with emphasis on the word “justice,” has a duty to defend Israeli democracy and rule of law against a prime minister who is also a criminal defendant desperate to avoid trial. A Supreme Court that is guided by logic, reason and morality must surely demolish the freakish constitutional mutation that the Knesset is legislating literally overnight, in front of the learned judges’ undoubtedly astonished eyes.
Netanyahu’s opponents placed their trust, or at least pinned their dying hopes, on the High Court’s decision. Attorneys for the petitioners portrayed the High Court as the last remaining bastion of democracy and the rule of law – but Hayut and the other 10 judges uniformly rejected that responsibility. You all cooked this rancid porridge, as a popular Jewish saying goes, and you are going to eat it as well, the judges told their country.
In the eyes of its disappointed fans, the High Court missed a historic opportunity to assert the primacy of the rule of law and to save Israel’s lost honor in the process. Allowing Netanyahu to run on the basis of a minimalist interpretation of the law, its critics claim, was akin to the talmudic account of the scholar in Yavne who found 150 different reasons to “purify the defiled.”
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And although their decisions are supposedly beholden to the law alone, the unanimous 11-0 decision, uniting court conservatives and activists, seemed suspiciously like a defensive posture: The judges were hunkering down. They may not have saved democracy, but they certainly bolstered the defenses of the court itself in advance of an approaching onslaught. Like Stalin’s famous appraisal of the pope, the judges may have reached the conclusions that they lack the divisions needed to ward their enemies off.
And while one cannot deny that the High Court granted Netanyahu rare, if not unqualified confirmation, its decision is, in many ways, a Trojan Horse. While giving Netanyahu and his agreement with Gantz a kosher stamp, the court appointed itself kashrut supervisor for the future, signaling its willingness to annul sections of the coalition agreement once they reach fruition.To paraphrase and contort an old Jewish joke, the judges may not have killed Netanyahu, but they gave themselves permission to drive him to despair, should they so choose.
Despondent Israeli liberals might also find some Schadenfreude in the fact that the High Court’s unequivocal and unanimous decision shut down the right wing’s enthusiastic preparations for the total war that might have broken out had the court dared to stand in Netanyahu’s way. The High Court’s unanimous decision deprived them even of a tiny morsel of an obiter dictum from a leftist minority opinion that could be used to inflame the masses and storm the court, as some of Netanyahu’s backers had threatened.
A decision to bar Netanyahu might have escalated into a final decisive battle in the right’s ongoing campaign to undermine the court and destroy its credibility. The nationalist right’s long-held drive for absolute executive control, devoid of checks, balances and tedious human rights, was to combine with Netanyahu’s no-holds-barred, scorched earth campaign to avoid trial, unleashing the final assault on the High Court.
This is the same supposedly leftist and activist court, mind you, that has sanctioned Israeli occupation and Jewish settlements in the West Bank for decades, while serving as a defensive shield against external interference and legal probes. In fact, this is the same court that, despite countless petitions, has allowed Netanyahu to exert almost total control over the Knesset and Israel’s civil service, and to run for prime minister despite his criminal indictments. But, hey, what won’t today’s untethered right do – or sacrifice – in order to fan the flames of incitement and division?
Doomsayers and other pessimists, especially those attuned to history, might have associated the High Court’s unwillingness to intervene with then-deputy army chief of staff Yair Golan’s much derided 2016 warning against “horrendous processes that occurred in Europe in general, and Germany in particular, 80 or 90 years ago.” Golan, now a leading member of left-wing Meretz, was speaking against the backdrop of public support for army soldier Elor Azaria, convicted of killing a wounded terrorist in Hebron, but many center-leftists fear it has become pertinent to everything that’s happened since.
It’s not because anyone, at least not anyone sane, can validly compare Netanyahu or the Israeli right to the Nazis. The identity of those who inherited the Weimar Republic is not relevant to the comparison. It is because the Weimar Republic provides the clearest historical precedent for a liberal democracy with a strong constitution, proportional elections, separation of powers and free press, which willingly succumbed to its enemies from within. Weimar also had a Supreme Court, detractors would say, which asserted its power to strike down anti-constitutional laws but nonetheless did nothing to protect the Weimar democracy from destruction.
But the analogy is, in fact, an optical illusion. Weimar’s Supreme Court judges, along with most of the judiciary and civil service, despised the republic they were pledged to protect and abhorred the constitution they were sworn to uphold. They belonged to a Prussian upper-middle caste that had controlled the judiciary since the days of Bismarck and longed to return to those days of glory. The Weimar experiment was an abomination in their eyes, with a communist revolution lurking behind it. Adolf Hitler and the Nazis meant well, the judges believed. Their heart’s in the right place.
Whatever one thinks of their opinions or talents, Israel’s Supreme Court judges love their country. They cherish Israeli democracy and are dedicated servants of its rule of law. Most if not all of them, one can surmise, deplore Netanyahu’s behavior and fear his threat. They didn’t block him this time around, but they did leave a loaded legal pistol on the table. They have postponed, not averted, their day of judgment.
They will soon have another opportunity to prove they have the backbone to pick up the loaded gun and carry out the golden rule laid down by Tuco in “The Good, the Bad and the Ugly”: “When you have to shoot, shoot, don’t talk.” For now, they’re still talking.