As soon as the High Court of Justice refused to step in to stop the Lebanon maritime deal, it was attacked by some on the Right as being obviously politically biased in favor of the government, based on an alliance of Center-Left politics.
Without getting into whether or not the deal is a good diplomatic deal, from a legal perspective, is the charge against the High Court true?
Some of these criticisms have been generic without even bothering to present data (all of them have ignored that highly conservative Justice Noam Sohlberg rejected blocking the deal on grounds of judicial restraint). However, some noted that the High Court in the past rejected a natural gas deal proposed by one of Benjamin Netanyahu’s governments, which is true.
In 2016, the High Court’s 4-1 decision – with then-deputy Supreme Court president Elyakim Rubinstein and Justices Esther Hayut, Uzi Vogelman and Salim Joubran voting in the majority against Sohlberg – invalidated a 10-year price freeze and cap on a legal liability rule that was part of Netanyahu’s policy.
Also, Rubinstein, Vogelman and Joubran voted 3-2 against Hayut and Sohlberg to strike down the policy, or at least suspend it for a year while the government would then adjust the price and liability issues.
But that is only a very small part of the story.
The full truth is that the High Court mostly endorsed Netanyahu’s natural gas policy.
In 2013, by a 5-2 vote, the High Court supported Netanyahu over then Labor leader Shelly Yacimovich’s move to try to reserve a larger percentage of natural gas for domestic use.
And even in the 2016 ruling, by a 4-1 majority, with only Joubran dissenting, the justices upheld most of the other aspects of the gas deal, including leaving untouched Netanyahu’s power to override and circumvent objections of the antitrust authority on the grounds of national security.
That was huge, the fact that the prime minister, acting as his own economy minister, could override the antitrust authority on a question of economics using national security as a reason.
Eventually, Netanyahu pushed through the vast majority of his natural gas policy, making some changes tailored to avoid offending the few unusual points he had wanted which the High Court nixed.
In other words, in the end, the High Court allowed Netanyahu to overwhelmingly get what he wanted on many controversial issues.
Incidentally, Hayut, the supposed bastion of the Left, and Sohlberg both voted in favor of the government in 2013, 2016 and 2022 regardless of whether the prime minister’s name was Netanyahu or Yair Lapid.
What has changed since 2016?
What was different in 2022 versus 2013 and 2016 was that there was no clear opportunity for a do-over or an adjustment.
THERE WERE clear signs in last week’s hearing that if Lebanon had not been involved and if Israeli intelligence sources had not been unanimous that the current deal would not be available soon, the justices might have taken longer to think things through or to seek adjustments.
But unlike in 2013 and 2016, after 10 years of no deals on the issue and a narrow window for a deal, this deal seemed to be a take-it-or-leave-it situation.
Yes, Lapid milked the deal for election value, but the timing was equally determined by ongoing crisis and an imminent potential changing of the guard in Lebanon itself. And this is only from looking at natural gas deals.
The only reason that there is even an election right now is because the court repeatedly let Netanyahu run for office and form governments, despite being under indictment and in the thick of a multi-charge public corruption trial.
Of course, the court had a clear basis for this, but the fact is that the law’s wording only explicitly allowed a prime minister to stay in office upon indictment. It never said an already indicted person could seek reelection as prime minister or to form a new government.
A number of left-wing scholars thought the court had clear grounds for nixing Netanyahu, but it did not.
On the flip side, many on the Center-Left thought that the court could have reversed former prime minister Ehud Olmert’s convictions and rehabilitated him as the leader of the Left, back when he was still a real potential challenger to Netanyahu.
The court sent Olmert to jail and ended his career.
There are a number of diplomatic moves that Netanyahu took as prime minister during election season which the court did not block. All of this indicates that the court basically does not like to block government moves relating to diplomacy.
Not long ago, for example, the court nixed the government’s first pick for the senior officials vetting committee, Menachem Mazuz, and allowed Amichai Chikli to run with the Likud, showing it will not give Lapid a blank check.
Has the High Court vetoed the government policies of Netanyahu more often than those of Lapid or former prime minister Naftali Bennett?
Of course they have.
But that is just because Netanyahu was in power for 13 years and initiated far more policies and moves than his Center-Left competitors, who have barely been in power long enough to initiate anything.
Moreover, there were many Netanyahu policies the Left tried to stop, which the court okayed.
The reflexive criticism of the court as unabashedly left-wing also becomes further divorced from reality every year.
In the hearing over Chikli, the court’s approximately 50% conservative wing loudly harangued Center-Left lawyers for what they viewed as a waste of their time.
So the question for the court’s critics on the Right (as the court has become more evenly balanced with more conservatives. there is a rise in critics on the Left as well) is whether they are seeking a court that rules their way as often as for the Left, or whether they want a lock-step right-wing court.