Analysis: Shaked vs. Supreme Court - who will win the war to shape the court’s future?

The Supreme Court has taken huge amounts of heat for its interventions in striking down as unconstitutional state policies on migrants and natural gas.

By
November 4, 2016 06:19
3 minute read.
Justice Minister Ayelet Shaked

Justice Minister Ayelet Shaked. (photo credit: MARC ISRAEL SELLEM)

Justice Minister Ayelet Shaked is a master politician and public relations maven, but she likely is about to learn a few floor moves from a more experienced dancer.

On Thursday, Supreme Court President Miriam Naor dropped the standard press-shy, low-key modesty and decorum that have characterized her reign, counterattacking Shaked with a fierceness not previously revealed. The background? A battle over the very future of the Supreme Court.

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Replacements for four justices – about a quarter of the court – will be announced together in the coming months. This is Shaked’s dream – a chance to move the court to the right and toward a more conservative approach to negating government policy, both in one fell swoop.

One might initially think she had all the cards.

The Supreme Court has taken huge amounts of heat for its interventions in striking down as unconstitutional state policies on migrants and natural gas. In addition, many scholars think it sometimes, following public criticism of these interventions, has given certain policies a pass that it might have otherwise been struck down.

And now there is a massive wave of pressure from the Right against its order to demolish the illegal West Bank outpost of Amona.

Shaked is a powerful justice minister who has mostly gotten Naor to dance along with her more conservative style, and has pushed laws through the Knesset that her predecessors would likely have failed to do. Whenever Shaked has stridently and publicly attacked the top court for intervening in government policy, Naor has either been silent or has replied with a nuanced, meek and often lost message.



Finally, the minister came up with what she thought would be an ace in the hole: If Naor did not agree to appoint some of the justices she wanted and drop some of those she opposed, Shaked could pass a new law to select the new justices in a vote that would not require support from the current roster of justices. In this way, she could ram through everyone she wanted, with no compromise at all.

It might have seemed like a brilliant move at the time. The problem she apparently did not foresee is that she might dance too far and step off the floor where the debate is about judicial activism, and onto the floor where the debate is about judicial independence.

In questioning specific Supreme Court decisions, Shaked has the floor, and Naor is essentially duty-bound to take the heat without too much ado. But public threats about packing the court and changing the law to do this – whether one thinks changing the court’s character is necessary or not – seem to have played into Naor’s hands.

A public threat about the court’s membership has allowed its president to sever relations with Shaked regarding negotiations over future justices, and to make open threats of her own about vetoing Knesset laws in retaliation for any law passed to limit the court’s independence.

You exercise your nuclear legislative options, we’ll exercise ours, Naor basically said.

The idea that the court’s character should change will get a lively public debate and have many supporters throughout the country.

But the idea that justices get no say in who joins them, and that laws will be changed to circumvent their having any input, is not something Shaked will find wide support for.

Naor emphasized this point, accusing the justice minister of putting a proverbial loaded gun on the negotiating table. The minister’s virtual silence – a one-line response that negotiations over the new justices would go on as planned – appears to be a clear sign she realizes that this time she miscalculated.

Curiously, MK Robert Ilatov (Yisrael Beytenu), who nominally was pushing the Knesset bill Shaked wants, responded to Naor’s attack on the justice minister, saying the two should reach a compromise.

That is hardly a sign of the confident resistance and readiness to do battle that others on the Right have shown.

This does not mean that Shaked won’t get her way on some of the new justices. It does mean that she might need to learn some new dance moves and be a bit more subtle in trying to outmaneuver Naor.


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