When Israeli Supreme Court judges in January rejected a decision by Prime Minister Benjamin Netanyahu to award the finance ministry to an ally convicted of tax fraud, some judges used a controversial legal draft to block the move.
The appointment was “unreasonable,” they said.
When judges rejected Netanyahu’s appointment of a new deputy health minister in 2015, they used the same legal argument.
Unreasonable.
And the decision of a previous Netanyahu government, in 2012, to reject a particular candidate for the directorship of the tax office?
That was also unreasonable.
It is these types of judicial interventions – using the subjective legal concept of “reasonableness” – that are central to what is widely seen as the most serious domestic crisis in Israel’s history. The coalition of Mr. Netanyahu is about to pass a new law that would prevent the Supreme Court from using the concept of reasonableness to overturn government decisions.
Since the massive protests in March, the coalition has suspended other plans to allow parliament to overturn the court’s decisions and give the government more control over the selection of the court’s judges. While the opposition fears that these plans could be revived, the government has no resources to implement them until the winter session of parliament in October.
For now, the coalition is only moving forward with a law to limit the court’s use of “reasonableness,” but that step alone has been enough to bring Israeli society back to its brink.
In recent days, doctors have gone on strike in protest, raising the specter of a shutdown of the health system, even though their action lasted only two hours on Wednesday. Military reservists are beginning to withdraw from volunteering, threatening Israel’s defense capabilities. And tens of thousands of protesters regularly close roads and infrastructure, sparking widespread fears of armed conflict between critics and government supporters.
Opponents of the government’s proposal see the legal concept of fairness as a crucial safeguard against government over-influence, and an important pillar of Israeli democracy. In particular, they fear that the current government — an alliance of ultra-conservatives and ultra-nationalists — could use the reduced judicial oversight to help shape a more religious and less pluralistic society, primarily by allocating jobs and money to projects and allies, and firing officials who oppose them.
“This is about whether the state’s resources will actually be used for the public good,” said Amichai Cohen, a legal expert at the Israel Democracy Institute, a Jerusalem-based research group. “Will ministers interpret this abolishment of reason as carte blanche to simply use the resources at their disposal for political reasons as they see fit?”
Proponents of the measure, which parliament is expected to vote on next Monday, are touting it as a boon to democracy: a modest curtailment of the ways an elected government can be thwarted by unelected judges, who will at least have other tools to overthrow ministers.
“Israel will remain a democratic state,” Netanyahu said in a speech on Thursday. “It will remain a liberal state.”
According to Daniel Friedmann, a law professor and former justice minister, the concept of reasonableness allows judges to take too much executive power from officials and ministers, rather than merely acting as a check on government decisions.
“In reality, it allows the court to replace all other authorities,” said Mr. Friedmann. “The scope of action must be reduced.”
The concept of reasonableness has become so controversial in part because it has never been defined in any law passed by parliament. Instead, its definition and application have been developed over decades by judges since the 1960s. Versions of the concept are used by courts in Australia, Great Britain and Canada, among others.
In Israel, judges generally consider a decision to be unreasonable if they conclude that it was made without considering all relevant issues or without giving relevant weight to each issue, or by giving too much weight to irrelevant factors.
The Supreme Court has used the standard to oppose the appointment of senior officials involved in covering up the extrajudicial killing of Palestinian militants. The court also cited the standard when it ruled that the government should do more to strengthen classrooms against rocket fire from the Gaza Strip. It also used it to order a city council to build a Jewish ritual bath and to force the resignation in 1993 of a minister, Aryeh Deri, who had been indicted on corruption charges.
While “reasonableness” has been used against governments of all political persuasions, Mr. Netanyahu sees it as a particular challenge to her authority.
After Mr Deri returned to government earlier this year, judges said it was unreasonable for him to be appointed to head three ministries – including the treasury – because of his long history of corruption convictions. The judges said it was particularly unfair given that Mr Deri, a veteran ultra-Orthodox lawmaker, had waived a plea deal he signed in his most recent corruption trial in 2021, which the judges interpreted as a promise by Mr Deri to leave political life.
Mr Deri says he never promised to leave political life altogether, but only briefly left parliament; the ambiguity of the deal was widely reported at the time.
In 2015, the Supreme Court said it was unreasonable for Mr. Netanyahu to allow Yaakov Litzman, another ultra-Orthodox lawmaker, to effectively run the health ministry while serving as deputy health minister. At the time, Mr. Litzman was wary of accepting too high a role in a state that many ultra-Orthodox Jews do not formally recognize.
In 2012, the court ruled that it had been unreasonable for the Netanyahu administration to refuse to nominate a particular candidate for the directorship of Israel’s tax authorities. The rejected candidate was nominated by a panel of experts and “stood out for his exceptional professionalism and extensive training,” the court said.
Investigators say the court has not used the standard as much as critics claim, and is in fact more likely to throw out petitions to fire government officials than uphold them.
Over the past decade, the court has turned down petitions — filed by individuals, civil society groups or political parties — to sack three ministers in Mr Netanyahu’s previous cabinets, including a previous petition to have Mr Deri fired in 2015.
Since 2003, the court has rejected 52 of the 64 petitions it has received to remove a government appointment based on fairness, according to recent research by Tachlith, a Tel Aviv research group. According to Tachlith, only seven of the 12 petitions that the court has honored have been declared well-founded on the basis of the standard of reasonableness.
As a result, some argue that the draft’s greatest impact is invisible and unquantifiable: it forces ministers to consider whether their decisions would survive subsequent Supreme Court scrutiny — meaning its effect is most felt in the minister’s office, before a decision is made, rather than in court afterwards.
“You don’t want to do something that will be rejected by the court,” said Natan Sharansky, a former deputy prime minister who led four ministries in the 1990s and 2000s.
As a result, ministers often consult lawyers before making a decision, Sharansky said. “Usually you ask for advice: how likely is it that you will be appealed to the court and what are the chances that the judge will say that it is not reasonable for you to do this or that?”
For critics of reasonableness, this is a problem: it could prevent ministers from carrying out what voters have elected them to do. For adherents of the standard, it is an advantage: it deters ministers from acting in a corrupt or irrational manner.
Mr Sharansky said the concept was too broad and in principle he supported the government’s plan to limit its application.
But after the plan sparked increasingly toxic national discourse, he began to worry about how the issue had divided society.
“I do believe it was something that could be useful, but the way it was presented and how it was pushed forward made it almost impossible,” he said. “The real drama is not in specific proposals. The real drama is that there is no serious mutual discussion.”
Gabby Sobelman contributed reporting from Rehovot, Israel, and Hiba Yazbek from Jerusalem.
