The Supreme Court of Israel: Chronology of a power grab*
There is no longer such thing as “clear language”; a judge tells the parties to a contract what they really intended, overriding their actual language and the accepted meaning of their words. The judge’s interpretation is based on "basic principles" such as justice, equality and minority rights.

* Gary Littwin
Introduction
Israel finds herself in the midst of a severe constitutional crisis that reached a dramatic peak when a new President of the Supreme Court (Chief Justice), Yitzhak Amit, practically appointed himself. Most government ministers, including, crucially, the Minister of Justice, refused to recognise him. The government of Israel and the Supreme Court of Israel are now, in effect, boycotting each other.
The Supreme Court, once a beacon of justice and moderation, many Israelis no longer trust. Jews have never had much experience with Western democracy, and most of those who established the first Israeli governments came from socialist and communist backgrounds. The democracy created during the War of Independence had serious flaws, the most serious of which was that Israel has no Constitution.
The lack of a Constitution is the main vulnerability that the Court exploited over the course of three decades, to wage war on Israeli democracy. By stealth, the Court usurped the powers of the executive branch, thereby rendering the legislative branch irrelevant, and freeing itself from the balance of powers. It is a war the Court seems to be winning: the elected government of Israel is today unable to implement the policies for which it was elected, unless the Court approves.
In the following pages I will review some of the highlights of the process that led to a Supreme Court that recognises no real restrictions on its own power, and the ensuing subversion of Israeli democracy.
1993 – The Dery/Pinchasi case
The background involved a call by the government legal advisor/Attorney-General (the positions are combined in Israel) to dismiss a minister, Arye Deri, from Yitzhak Rabin’s ruling Leftist government, following Deri’s indictment for corruption. The Agranat Committee of 1962 (not to be confused with the 1973 Agranat Commission) made it clear that the government is not obligated to take the legal advice of the Attorney-General (AG). Using the Deri/Pinchasi case, Supreme Court justice Aharon Barak ruled that the advice of the government legal advisor does obligate the government. He and subsequent colleagues constructed their rationale on a misrepresentation of the results of the Agranat Committee.
For good measure, Barak also set a precedent by decreeing that the government legal advisor has the authority to deny the government legal representation. As a consequence of this ruling, when the legal advisor opposes a government action, as the current AG routinely does with the present government, she denies the government legal defence before the Supreme Court, at the same time forbidding the government from engaging outside representation. Unlike ordinary citizens, their elected government, i.e., the citizens collectively, often find themselves without legal representation in court.
The resultant power of the AG, an unelected clerk, has no obvious parallel in any other democratic regime on earth. The legal advisor, supposedly appointed to give legal advice to the government, has authority that exceeds that of the democratically elected government, including the Prime Minister himself, with the full backing of the Supreme Court.
The AG is appointed for six years, meaning that Prime Ministers, serving four-year terms, typically inherit their predecessor’s legal counsel. In today’s loaded, explosive political atmosphere, it is extremely difficult, some would say impossible, for the government to dismiss its legal advisor. Compare this to the American system: President Trump is said to be on the verge of dismissing several thousand government appointees in order to replace them with people more amenable to his policies. This is as it should be in a democracy. The people’s representatives are elected to carry out specific policies. They cannot do their jobs if they are stymied at every step by an overtly hostile "deep state," as is the case in Israel today.
1995 – The Bank HaMizrahi Case
The case was brought by one of Israel’s largest banks against the government over an issue involving kibbutz debts. In a ruling that ran to over 500 pages, justice Barak decreed that two Basic Laws that were passed two years earlier in 1993, the Human Dignity and Liberty law, and the Freedom of Profession law, were in effect, a constitution, which somehow imbued the Supreme Court with the authority to strike down laws passed by the Knesset, that the Supreme Court deemed inconsistent with this “constitution”. This bears similarity to the groundbreaking Marbury v Madison ruling by the US Supreme Court in 1803. The difference being that the US actually does have a Constitution.
Ridiculously long decisions have become something of a hallmark of the Israel Supreme Court.
Crucial is that both laws were passed with simple majorities – a mere thirty-two and twenty-odd votes, respectively. The Human Dignity law, the more important of the two, was passed late at night. Fewer than half the MKs were in attendance, and no one imagined they were creating a constitution, let alone a constitution that would empower the court to nullify laws. No constitution in the democratic world has been adopted in this manner. The citizens of Israel went to sleep one night and woke up the next morning to the exciting news that they had a Constitution.
The interesting and unique development of a people being gifted by their Supreme Court with a constitution that no one at the time had asked for did not go unnoticed overseas. Richard Posner, one of the most influential American legal scholars and jurists of the 20th and early 21st centuries, said that Barak had created, without any legal basis, a power for the judges which even the most aggressive American judges never dreamed of. Supreme Court Justice Robert Bork stated that Barak had turned ordinary laws into a constitution, forced that constitution onto the nation and then declared his right to strike down laws based on the same "constitution" (which is composed in its entirety of two Basic Laws).
Democratic nations that have seen fit to allow judicial review, and in some cases invalidation of laws, have invariably done so on the basis of real, existing constitutions and laws. It is unheard of for a court to unilaterally arrogate such capability to itself. American Justice Antonin Scalia said, “When I think that the U.S. Supreme Court has gone too far, I look at what the Israeli Supreme Court has done, and then I feel better.”
Many leading legal minds in Israel, such as Ruth Gabizon z’’l, Michael Heshin and Moshe Landoi came out in opposition to the activist/interventionist doctrine of the Israeli court.
2002 – The Oriental Rainbow case
A classic case of judicial activism and ignorance which ended up benefiting no one at the time, except that this is probably one of the first cases in which the result of a court decision enabled a blatantly anti-Zionist organisation to gain a profound influence on real estate and land management issues in Israel. The Court’s ruling in this case essentially did away entirely with an extant principle that serves as a key element in just about every judicial system in democratic nations: the principle of standing.
Of course, adherence to the principle of standing limits the powers of the court. It had to go, and so it did. "Standing" generally determines that harm to an individual, as a derivative of harm to an entire population, does not imply the right of standing before a court. The petitioner must be personally harmed. In the Oriental Rainbow case, the Court allowed a marginal group that was not directly involved or harmed by the situation under adjudication, instead of the government, to establish a new real estate and land regime for all citizens of the state. Today it is taken as a given that any plaintiff that interests the Supreme Court for any reason has standing and can petition the Court. It is absurd, but as the saying goes, “all’s fair in love and war”, just without the love.
By abolishing standing the Supreme Court in effect has invited the entire population of Israel, and indeed the entire population of the world, to provide it with opportunities to abuse, broaden and entrench its power arbitrarily. The court can pick and choose the high profile cases it wants to take on. A major component of the anti-Judicial reform chaos is the plethora of anti-Bibi NGOs that petitioned the Court to nullify those reforms. In other words, the Court mobilised the NGOs as reserves are mobilised in war.
During and after this case, the Court began relying heavily on “reasonableness” as a criterion for determining the validity of laws adopted by the Knesset, meaning that Supreme Court judges can rule on an issue based on how “reasonable” they deem the topic to be. The specially-contrived two-law “constitution” clearly did not suffice for the Court’s purposes. This is a clear infringement, an invasion even, of the realm of the executive, and particularly the legislative, branches of government. Legislators and government ministers have come to exercise a form of self-censorship, in which they avoid submitting needed legislation at all, in order to avoid legal battles they know they cannot win. At this point, democracy is moribund.
2003 – Apropim Case
We can no longer depend on the written word to determine the meaning of a contract. There is no longer such thing as “clear language”; a judge will tell the parties to a contract what they really intended, overriding their actual language and the accepted meaning of their words. The interpretation of the judge will be based on "basic principles" of which the contracting parties had not the slightest notion, such as justice, equality and minority rights. In 2011, the Knesset had to adopt an explicit amendment intended to bolster and clarify paragraph 25(a) of the Law of Contracts, which states:
A contract will be interpreted according to the presumed intentions of the parties, as they are understood from the contract itself and the circumstances of the matter; however, if the presumed intentions of the parties are explicitly implied by the language of the contract, the contract will be interpreted according to its language.
The amendment has pretty much been ignored by the Court, which responded that the same interpretive freedom that the judges claimed for themselves in contract interpretation applies even more to the interpretation of legislation. This is consistent with postmodernism, a paradigm of arbitrary truths in which words mean what the judges want them to mean at that particular moment.
2002-2004 – The Strange Case of MK Azmi Bashara and the Balad Party
Azmi Bashara was an Christian Arab MK charged with espionage and treason in the wake of the 2006 Second Lebanon War. The accusation involved passing real-time intelligence and coordinates to Hezbollah during the fighting in order to enhance the efficiency of rocket fire aimed at military and civilian targets in Israel. Bashara was a member of the Arab Balad party, a Palestinian nationalist party whose Charter declares unequivocally that it opposes the existence of Israel as a Jewish state. Leading in to the race for the 16th Knesset in 2002, Knesset members, including the government’s legal advisor, requested the disqualification of Bashara and his party. The Knesset Rules Committee, which has responsibility and legal authority to decide and implement the law, ruled that Bashara and his party were disqualified. The Committee was overruled by the Supreme Court.
This case encapsulates all the damage the Supreme Court had done to the rule of law up to that point. I personally consider it akin to a child playing with a new toy, or perhaps more accurately, the test of a new weapon against Israeli democracy. In essence, the Court completely gutted paragraph 7a of the Basic Law – Knesset – of all meaning. The law determines criteria for ineligibility to participate in Knesset elections. Fairly simple and straight forward, the law states:
Candidate lists will not participate in the Knesset elections, and no individual candidate will be in the Knesset elections, if in its goals or actions, or in the actions of the individual, including in his statements, explicitly or implicitly, one of the following applies:
- Denial of the existence of the State of Israel as a Jewish and democratic state
- Incitement to racism
- Support for armed struggle, of an enemy state or of a terrorist organisation, against the State of Israel.
Despite the overwhelming volume and quality of the evidence against Bashara and Balad in accordance with paragraph 7a of the Basic Law, and the fact that no attempt whatsoever was made to obscure the radical anti-Zionist ideology and activities of the Balad Party, the Court ruled that they could participate in the election. One of the reasons for the ruling was the “values of the Court”. Unsurprisingly, there is no shadow of legality, no document, no bill or law, which empowers the Court to come to a decision based on the individual values of the judges.
In the 2006 elections for the 17th Knesset, it was decided not even to attempt to disqualify Balad. The Court’s position was well-known, and any such attempt was considered doomed to failure. The Legislature had abdicated their authority to judicial tyranny. To paraphrase the words of Thomas Jefferson in 1820, the judges have made themselves the arbiters of all legislative questions, a very dangerous doctrine indeed. Their power is the more dangerous as they are in office for life, and they do not answer to the electorate.
2005 – The Gaza Disengagement
In 2005, Israel unilaterally retreated from the Gaza Strip, a process that involved forceably expelling 10,000 law-abiding, patriotic citizens from their homes in seventeen villages. The expelled Jews’ final recourse was to petition the Supreme Court to prevent the expulsion. The attempt was futile and everyone knew it, given the national-religious identity of the settlers and the proclivity of the Supreme Court to rule in favour of radical Leftist causes.
The government of Israel bulldozed houses, shops, public buildings to dust. The expelled Jews could not bring themselves to demolish their synagogues and asked the Palestinians to please preserve them. At least in some cases, no sooner had the last Jew left than Palestinians set about tearing the buildings down with their bare hands. The expelled Jews dug up their cemeteries and reinterred the bodies of their dead in Israel. Left behind gratis as a peace offering to the Palestinians, was a number of successful, lucrative greenhouses, along with the infrastructure and equipment to keep them running. The grateful Palestinians promptly trashed them, stole everything not bolted down and, in some cases, established terrorist training camps on the ruins.
The Supreme Court did not disappoint. The ruling specifically admitted the rights of citizens had been trampled on (14-year-old girls were thrown into prisons for weeks for the crime of opposing the expulsion, and busloads of peaceful demonstrators were detained on public highways and turned back tens of Kilometres, in at least one case, over 100 Kilometres from the Gaza area), however, since the political outcome was deemed worthy, the Court refrained from interfering with the decision of then Prime Minister Ariel Sharon.
2018 – The Jewish Nation Basic Law deliberation
2023 – The Reasonableness Basic Law
The near-silent, slow-burning coup effected by the Court over the course of several decades was close to completion in 2018, when the leftist NGO, The Association for Civil Rights, and a number of Arab Muslim parties and organisations, petitioned the Supreme Court to cancel the new Basic Law, the “The Nation” law, a fairly innocuous piece of legislation, such as exists in nearly every sovereign country. The law simply stated that Israel is the nation state of the Jewish people; it establishes Hebrew as the primary official language, Jerusalem as the capital, describes the national flag, the state symbol and a few other things. The law deals exclusively with national rights. Individual rights for citizens of all ethnicities and religions are enshrined and protected in other, existing Basic Laws.
In a landmark decision, for the first time, the Court unilaterally established its right to strike down Basic Laws. This, despite the fact that the stated position of the Court had for many years been that the people, as represented by the democratically-elected members of the Knesset, are the ultimate sovereign. Knesset-designated Basic Laws are akin to a constitution, declared the Court, and thus are the source of the Court’s right to nullify ordinary laws. It is important to understand that this power was in itself simply arrogated, as there is no legal foundation enabling the Court to strike down laws of any kind. Ultimately the Nation law was not overturned, but the Court reserved the right to do so.
The process which began in the early 1990s culminated in 2023, when a new Basic Law was passed within the eviscerated framework of the judicial reforms the government tried (and failed) to enact. The proposed legislation attempted to limit the judges' ability to nullify laws based on what the judges subjectively deem unreasonable. Israeli Supreme Court judges have become self-indulgent; they’ve gotten into the habit of making extensive use of “reasonableness,” which boils down to a pretext for Court intervention without legal justification. Authority of this type is rare in Western democracies, and judges are usually extremely circumspect in its use. The Court struck down the Basic Law.
The rule of standing went the way of the Dodo bird, the rule of written law has been severely eroded, and the arrogant assumption that everything in the life of the nation is justiceable meant that the Court can and does intervene in just about anything it wants to. This has created a fast-lane to unassailable power for the Court and its ideological allies, sidelining the legislative and executive branches of government. The power grab was complete.
The Court had crowned itself sovereign, while relegating the Knesset, and to some degree the government itself, to a role of near-irrelevance. The moment the Court arrogated to itself the authority to wield power over Israel’s imaginary constitution in the name of some unwritten, amorphous, basic Israeli values, it was game over. Supreme Court judges are appointed for life. The judges themselves are heavily involved in their own appointment process and when a slot opens they have a veto over prospective candidates. There is no impeachment procedure, and nothing approaching the American model of congressional oversight.
Renowned American legal scholar Richard A. Posner in 2007 reviewed a book by former Israeli Supreme Court President Aharon Barak, long considered the author and continued inspiration of the radical activism of the Israeli Court. His comments on Barak are striking for the contrast between the Israeli narrative, which tries to paint a picture of the brilliant philosopher-judge, and the way the Court is actually perceived in much of the rest of the world. Posner says of Barak:
...he is familiar with the American legal system and supposes himself to be in some sort of sync with liberal American judges, he actually inhabits a completely different—and, to an American, a weirdly different—juristic universe. I have my differences with Robert Bork, (a notable judicial scholar in his own right, and a former judge of the United States Court of Appeals for the District of Columbia) but when he remarked, in a review of The Judge in a Democracy, that Barak ‘establishes a world record for judicial hubris’ he came very near the truth.
Posner stated as well that:
...only in Israel (as far as I know) do judges confer the power of abstract review on themselves, without benefit of a constitutional or legislative provision. One is reminded of Napoleon's taking the crown out of the Pope's hands and placing it on his own head.
Haim Ramon, a former MK, Justice Minister and vice-Prime Minister, put it this way:
...The normative pyramid that exists now in Israel is that there are government decisions, and there are laws and Basic Laws of the Knesset, but above them all is the Council of Legal Sages. A group of philosopher-kings to whom all elected authorities are subject, and whose word is the true law.
The Israeli Supreme Court and their cheerleaders and sycophants in the mainstream media have long sold a narrative that portrays the Court as a forward-thinking, brilliant institution, an institution that aroused awe and praise throughout the democratic world. Nothing could be further from the truth. The fact is that the Court, along with its toadies and power-hungry radicals in the State Prosecutor’s office and the office of the government legal advisor, have come close to destroying Israeli democracy. They have certainly corrupted the concept of a separation of powers beyond all recognition. The term, as used by the Court and its cronies has come to mean that the other branches of government have no control over the judicial branch – a very far cry from the meaning of the ideal as understood and implemented in other democracies. The individual citizen’s ballot is now pointless. Many leading jurists in the West are bemused or contemptuous (or both) of the Israeli Supreme Court.
Israeli democracy has one foot in the grave, however as Miracle Max (played by Billy Crystal) said while rejuvenating the recently deceased hero Wesley in the classic movie Princess Bride, it may only be “mostly dead”, as opposed to permanently dead.
Picture credits:
Unknown author - Unknown source, Public Domain, https://commons.wikimedia.org/w/index.php?curid=3569169
The judiciary of Israel, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=56837946
Islamtimes.org
By פרס א.מ.ת - צלם קובי קלמנוביץ, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=37100148
https://x.com/vcmancinelli/status/1884946665771041021/photo/1
Comments:
On 1 February 2025 at 12:59, Ben Dor A. wrote:
Dear Anjuli Pandavar
I'm shocked 😲 that you have understood so swiftly the impossible situation that some of the people of Israel have found themselves within 30 years.
The actual situation is that Israel is basically ruled by a judicial dictatorship without any administrative responsibilities. Not only that, the judges of the Supreme Court receive a salary from public taxes, which is twice the amount that the PM gets, and the President of the Supreme Court, chosen by himself, gets nearly 3 times the salary of the PM of the most complicated and dangerously threatened country in the world.
It is sad and disheartening that most Israeli citizens do not really understand the actual situation and those who do, are the ones that allowed this travesty to happen with the help of the woke Regressive Left and their cheerleaders, Israeli MSN.
Best Regards
Ben Dor A.
On 1 February 2025 at 14:45, Anjuli Pandavar wrote:
Thank you Avinoam,
The author is actually Gary Littwin. I've made him aware of your comment.
That aside, I do agree with you.
Best regards,
Anjuli