It’s been an active few months for the Supreme Court, overturning laws and government decisions on everything from the Western Wall to haredi conscription in the IDF to the fate of illegal migrants, which means Tourism Minister Yariv Levin has had an aggravating few months.
Other than his main tourism portfolio, Levin is Prime Minister Benjamin Netanyahu’s right-hand man in the cabinet, who, in his capacity as the minister connecting between the executive and the Knesset, helps juggle and negotiate between the coalition partners. In October, he was tasked with coming up with a bill regarding the ultra-Orthodox and IDF service that will satisfy the demands of both the High Court and Shas and United Torah Judaism.
Along with all that, Levin has time and attention to dedicate to what has been his passion and his goal since he entered politics in 2009: cracking down on judicial activism.
In recent years, the Israeli Right has dedicated a lot of energy and political capital to fighting judicial activism, arguing that the court illegitimately gave itself the authority to cancel laws passed by the Knesset after the “constitutional revolution” of the early ’90s, when the Knesset passed Basic Laws Human Dignity and Liberty, and Freedom of Occupation.
As Levin describes it, the Supreme Court has become a major destabilizing factor in Israeli society.
For example, by saying the law allowing the defense minister to exempt haredim from IDF service must be canceled within a year, the court is “intervening in a very delicate arrangement between different parts of society” that has existed since the establishment of the state.
“It’s as if the High Court wants to do what it can to create obstacles,” he said. “Again and again, rulings on the most sensitive issues, that haven’t been touched for decades – suddenly they want to make decisions overnight.”
Levin applied the same logic to the nation-state bill, a proposed Basic Law to declare Israel the Jewish nation- state, which is in the process of being legislated.
“This law wasn’t passed when the state was established, because it wasn’t necessary; it was clear what this state was about. Judaizing the Galilee isn’t discrimination; it’s Zionism, it’s what we’re about. The Law of Return ensuring this will stay a Jewish state...
isn’t discriminatory or a violation of equality. We’re not just any state; we’re the state of the Jewish people,” he said.
However, Levin argued that “radical left-wing ideas in the international sense, not in relation to the dispute over the Land of Israel,” took over the court, which have made it necessary to pass a law that consists of these values, which he said are being “trampled, supposedly for the sake of equality.”
“When it comes to settlers, there’s no equality, and illegal Arab construction is ignored. It’s just rhetoric of equality,” he grumbled.
Levin’s suggestion, in response to what he sees as the court’s tendency to overstep, is a complete overhaul of the system. The idea, supported by some on the Right and in haredi parties, to pass a law allowing the Knesset to re-legislate laws the court annulled, is just a Band-Aid on a problem that goes much deeper.
Levin said that “to change just one aspect doesn’t solve the basic problems, and in a certain way can be problematic because it recognizes [the court] has the right to cancel laws, which is baseless.”
To begin with, “judges can’t be allowed to cancel laws without having the clear authority to do so,” he said. “And even more so, they can’t give themselves the authority to cancel laws when they are a self-selecting group that makes [judicial appointee] decisions behind closed doors.
“Throughout the world, in constitutional courts that can cancel laws, the judges are chosen by the political system, because they’re supposed to represent the spirit of the society. The judges can’t be self-selecting and then cancel laws by the sovereign, that is, the Knesset.”
Levin saw the High Court’s recent decision to cancel a tax on owners of three or more homes, citing flaws in the legislative process, to be a deterioration in the situation: “This is the first time ever that the court canceled a law for procedural reasons. They don’t have that authority, even if you accept their reasoning from Basic Law: Human Dignity and Liberty.
One day they just woke up and canceled a law they don’t like.”
As such, Levin argued that the Knesset law to circumvent High Court rulings must be part of a broader law determining relations between the judiciary, executive and legislative branches, and called for the judicial selection process to be changed.
When Bayit Yehudi’s Ayelet Shaked was appointed justice minister in 2015, many saw it as a beginning of a counterrevolution, because of her conservative views.
But for Levin, Shaked hasn’t gone far enough – she’s too much talk and not enough action.
Levin said he recognizes that it’s impossible to pass far-reaching laws vis-a-vis the Supreme Court while Kulanu is in the coalition vetoing them all, but at the same time, he lamented that Shaked is not taking non-legislative action that is in her power.
“We missed great opportunities,” he said, citing the way Supreme Court President Esther Hayut was chosen.
Shaked, seeking to change the system to one based on merit, briefly refused to convene the Judicial Selection Committee until she was given more than one candidate for the committee to consider. She eventually backed down after no judge other than Hayut agreed to be a candidate, and Hayut, the most senior justice, was appointed president.
“The fact that the Judicial Selection Committee allows itself to be a rubber stamp and authorized the one candidate is a travesty,” Levin said. “Other than [Likud] MK Nurit Koren, who courageously refused to participate in this farce, all the members have a hand in this system by which the president is decided before a judge spent even one day on the bench.”
Still, Levin said, “Shaked has the right ideas and is making an effort to promote them,” and his only criticism is that she doesn’t always seize opportunities.
The fight against judicial activism is a long one, Levin said, recounting that his first speech to the Knesset in 2009 was on the topic, and that it has continued to gain traction since then.
Levin expressed confidence that his ideas are on the road to success: “Everyone’s job is to continue hammering until we create a break in the wall. This battle must happen in every arena: We won’t select judges in their way. We will propose bills time after time, even if Kulanu vetoes them, because in the end, the public pressure will work, and we will pass these laws.”