The day Israel’s highest court tried to do the impossible

Surely, asked Justice Stein, the original source was Israel’s Declaration of Independence. Bombach, whose line of argument was that only the elected Knesset had any law-making powers, flippantly responded, “Just because 37 people hurriedly signed the Declaration of Independence, should that tie the hands of the Knesset?”

His argument had both historic and legal merit, but he had failed to realise in advance how his answer sounded, loftily dismissing the sacred Declaration of Independence in a televised proceeding with the nation watching and in his role as representative of a government seeking to make sweeping constitutional changes.

It was a mistake that he would unsuccessfully try to backtrack from and it overshadowed the government’s case.

After two and a half hours arguing that case, President Esther Hayut called time. “It’s unreasonable to give me so little time,” he weakly said.

“Don’t say ‘unreasonable,’ we’re not allowed to say that,” she said, allowing herself a joke at his expense.

President of the Israeli Supreme Court Esther Hayut and all fifteen judges assemble to hear petitions against the -reasonableness claus

President of the Israeli Supreme Court Esther Hayut (centre) (Photo: Getty Images)

This was President Hayut’s moment. With a month to go until her seventieth birthday, when she must step down from the court, she had presided over the Supreme Court’s most fateful and momentous hearing.

In the full gaze of the nation, she and her colleagues had finally forced the government’s representatives to give a full reckoning of their judicial overhaul.

For the past eight and a half months, the mild-mannered and softly-spoken judge had found herself in a role she had never sought, as protector of Israeli democracy against a radical government seeking majoritarian powers.

Back in January, she had surprised many with the fierceness of her opposition, just five days after Justice Minister Yariv Levin presented his “legal reform” in a speech where she called it “a fatal blow to Israeli democracy”.

Eight months later, facing Levin’s lieutenant Simcha Rothman’s taunts, she responded clearly: “We are not dealing with our own powers or status, but with the public interest, so that our hands are not tied in protecting the public.” She was having her day in her court.

And for all that, court insiders who claim to know the judges’ thinking say that the last thing they want is to rule in this case. “Hayut and her colleagues had their moment of glory when they heard the petitions for an entire day and the whole country watched on television,” says one jurist. “But a ruling on this case is another matter. They would much prefer a compromise which would allow them to reserve their judgment.”

Another lawyer who is a regular in front of the court said: “They have an impossible decision.

Benny Gantz F221206YS68

Benny Gantz (Photo: Flash 90)

"They can’t accept what the government is doing to the court but to shoot down a ‘Basic Law’ has never been done before.

"It’s difficult to justify and would almost certainly cause a constitutional crisis with the government. This isn’t how Hayut wants to go out. The ideal outcome is now for Netanyahu and Benny Gantz to find a way out of it.”

Both men realise that they must now reach a compromise together. Netanyahu has reached the conclusion that to continue fighting for his justice minister’s grand constitutional design will drain his government’s time and energy and make it much more difficult to work with the Biden administration on the coveted deal with the Saudis.

For Gantz, now leading Netanyahu in the polls, it is crucial to prove to his potential voters that he can force the prime minister to compromise, relinquish the Levin Plan and perhaps even jettison some of his radical coalition partners.

For both of them, it is a legacy-defining moment and there are signs that they are prepared once again, despite all the suspicion lingering between them, to enter talks under President Isaac Herzog’s auspices.

If those talks succeed, President Hayut will not have to issue an earth-shattering ruling along with her colleagues and she can retire next month with her legacy intact.