Analysis: Will the nation-state law change the Supreme Court?

If passed, what will the Jewish nation-state bill mean for the future of the Supreme Court?

By YONAH JEREMY BOB
Updated: JULY 18, 2018 11:02
Israel's Supreme Court (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Israel's Supreme Court
(photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
If passed, what will the Jewish nation-state bill mean for the future of the Supreme Court?
The most obvious place where the bill would come into play would be the controversy over whether there is housing discrimination against Arabs.
Will the bill make housing discrimination more likely? The short answer is it will be a coin toss.
This is true in terms of the latest language which was suggested by Attorney-General Avichai Mandelblit as being more legally defensible and less likely to be perceived as discriminatory.
It will also be a coin toss in terms of the current set of Supreme Court justices themselves.
Though the earlier language explicitly endorsing separate residential communities based on religion or ethnic background has been deleted, the current language could still be used for that purpose.
That is especially true because a 2014 razor-thin 5-4 Supreme Court decision kept a law in place that allowed “Acceptance Committees” to vet and reject candidates using vague criteria for around 434 yishuvim (villages) in the Negev and the Galilee.
That law replaced an earlier law struck down by the Supreme Court which explicitly permitted discrimination in those villages.
At the time, the majority of the Supreme Court did not commit to keeping the Acceptance Committee Law alive forever. They merely said it was too early to strike it down when it had not functioned long enough to even raise new discrimination cases.
While the new bill does not give any explicit encouragement to discrimination, the implication of encouraging and implementing Jewish settlement as a national value could very well support instances in which the result is discrimination, as long as there is no explicit rule calling for discrimination on its face.
State lawyers defending the bill as more moderate would say that the key is the bill’s focus on Jewish settlement only as a “national value” and not as an “individual right.”
They would say this is designed to signal only that the state might budget more funds for Jewish settlement, but will still not allow any discrimination against individuals, Arab or otherwise.
So it is a coin toss as to how the justices will interpret it – though it definitely empowers conservative justices to help villages favor Jewish settlement on any borderline cases.
How the current justices themselves stack up is also up for grabs.
Much of the 2014 court has retired, both from the majority and from the minority four that voted to declare all or part of the Acceptance Committees Law unconstitutional.
But overall, the score card focus would be that three justices (Edna Arbel, Salim Joubran and Yoram Danziger, who voted to declare the Acceptance Committees Law unconstitutional) have retired and that the court is now led by Esther Hayut and Hanan Melcer – who both voted in favor of the law.
In addition, Justice Minister Ayelet Shaked has appointed several conservative justices.
All of this means that if there is a housing discrimination result – even if it is officially illegal – this bill means the court is less likely to intervene.
There will also likely be other areas where the “Jewish settlement as a national value” language of this bill, plus the addition of conservative justices, will swing the court into declining to block government policies criticized by the Israeli-Arab minority – even if in the past it might have intervened.
All of this is far from a judicial revolution. But in a variety of key cases, the bill could make a decisive difference.