Rule of law: The new chief

Justice Menachem Mazuz has dissented in cases of house demolitions of terrorists, she has at most expressed mixed feelings, but has said she will support the court’s precedent.

Esther Hayut, newly elected president of the Supreme Court, Justice Minister Ayelet Shaked and current Supreme Court president Miriam Naor, September 5, 2017. (photo credit: YONAH JEREMY BOB)
Esther Hayut, newly elected president of the Supreme Court, Justice Minister Ayelet Shaked and current Supreme Court president Miriam Naor, September 5, 2017.
(photo credit: YONAH JEREMY BOB)
Esther Hayut may be less known than Miriam Naor was when she became Supreme Court president, but she is likely to have a much larger long-term impact and profile.
Replacing Naor on Thursday, Hayut, like Naor, is known to have a moderate- activist ideology, in contrast to the stronger activism of predecessors Aharon Barak and Dorit Beinisch. But Hayut expected to be louder at hearings and in public.
At age 64, she will also run the court for six years, longer than her two predecessors, Naor and Asher Grunis, combined.
Moreover, observers – many of whom spoke under condition of anonymity, due to the sensitivity of needing to appear before Hayut in the future – say that she is a more effective negotiator and more politically suave than Naor.
Many thought that Justice Minister Ayelet Shaked outfoxed Naor in negotiations over new Supreme Court justices, succeeding in putting at least two (some say three) clearly conservative justices in a court dominated by activists or moderates.
Even as both Naor and Shaked took a tough line in public, Shaked was also busy behind the scenes, maneuvering for tactical agreements with the Israel Bar Association and moderate swing-vote politicians from Kulanu to corner Naor into favorable compromises. Naor did not do any serious dealing until it was too late.
Naor viewed herself as an individual justice, who happened to also have the job of running the courts. She did not try to build consensus among the other justices, to come to certain results. She is viewed, even as compared to her fellow Supreme Court justices, as not having considered the political and social impact of her rulings.
In contrast, Hayut is said to be more aspirational in wanting to make her mark and having a desire to rally the justices to stand together more often.
Even as her primary viewpoint on cases involves the applicable law, she is also said to be more sensitive to political perceptions and impact regarding court rulings.
She is also expected to be more of an equal to Shaked in maneuvering among the various key legal power centers that impact judicial selection and other issues.
All of this is extremely ironic, as Hayut was often one of the quieter justices on Supreme Court panels, she did not often author major decisions on behalf of the court majority, and her separate opinions were not written with the dramatic flair of justices such as Elyakim Rubinstein.
Likewise, as Central Elections Commission chairwoman, from May 2015 to March 2017, she did not run a national election or make any major controversial decisions the way her predecessor, Salim Joubran, did.
And yet, when Shaked tried to convince other justices to “run” against her for the chief justice job, not a single one of them put their name forward.
This makes it clear what a prominent role the rule that the Supreme Court president should be chosen by seniority, as opposed to charisma and ability to stand out among the justices, played in Hayut becoming the new chief.
However, her quiet public demeanor shifted already in the first panel that she presided over after the formal announcement that she would be the next chief. After years as a mostly quiet backbencher, Hayut was combative, bitingly sarcastic and she cut off lawyers left and right.
In mid-September, she rejected the arguments of an NGO for Supreme Court intervention in making Israel’s nuclear program more transparent.
She even blocked Avner Cohen, the most famous critic of Israel’s nuclear program, who flew specially from California to Israel for the hearing, from saying a few words – an unofficial allowance usually granted to prominent attendees.
Though Hayut’s centrist position means she has some respect from both sides of the debates over judicial interpretation, being a moderate activist does mean that she is embraced more by activists and criticized more by conservatives.
Attorney Yuval Yoaz of the more activist NGO Movement for the Quality of Government in Israel, said, “I do not expect a dramatic change... between the Naor and Hayut eras.... Naor was compelled during her time as president to go out and defend the Supreme Court and the judicial branch.
“In light of the current attacks from the political arena... unfortunately, I do not expect a major change regarding this during the time of Hayut as president,” he said.
In contrast, a spokesman for attorney Ori Tzipori, who, along with Honenu, works on initiatives to reduce the Supreme Court’s activism and jurisdiction, criticized some past statements by Hayut about democracy.
He said that Hayut’s statements had shown that she believes that judges’ personal worldviews, and the meta-values constituting those worldviews, should be the basis for interpreting Knesset laws.
According to Tzipori, this means that she is willing to place her value system above Knesset laws – a primary criticism leveled by conservatives at judicial activism.
All of this is likely to come to a boil when the Supreme Court, under Hayut, will likely strike the Settlements Regulations Law as unconstitutional.
After striking the law exempting haredim from serving in the IDF as unconstitutional in mid-September, following a similar ruling on the migrants law in August, the Supreme Court is already facing higher pressure than usual for its authority to be reduced.
Shaked announced an initiative just days ago to remove the Supreme Court from involvement in selecting candidates for attorney-general.
If Naor resisted these efforts with some intellectual public responses, Hayut is likely to strike back with greater force and less subtlety.
In light of Tzipori’s criticism and recent decisions about letting Hamas-affiliated east Jerusalem men keep their Israeli residency and about the right to protest near the attorney-general’s home, trumping police concerns about disorder, what makes Hayut a moderate? In one case, the March 2016 3-2 decision over whether to strike down Prime Minister Benjamin Netanyahu’s natural gas law, she voted in the minority against overruling the entire law, when Rubinstein, often viewed as more conservative, was in the majority.
Where Justice Menachem Mazuz has dissented in cases of house demolitions of terrorists, she has at most expressed mixed feelings, but has said she will support the court’s precedent, which permits the demolitions.
She also voted in 2014 with a 5-4 razor-thin majority to uphold a law that hundreds of small villages were using to exclude Israeli Arabs, homosexuals, disabled people and other groups.
These are only a few of the examples where Hayut ruled against activist causes in cases or deferred to the state, where Barak and Beinisch might have tried to rally support for an activist cause.
Ultimately, Hayut will need all of her political skill and more as she confronts probably the most intense push yet to reduce the Supreme Court’s ability to check the government and the Knesset.