Will conservatives finally gain control of Supreme Court?

The fallout from Mazuz’s abrupt retirement

ISRAEL SUPREME Court justices at a hearing. The court has invalidated the infiltrators law. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
ISRAEL SUPREME Court justices at a hearing. The court has invalidated the infiltrators law.
From 2015 to 2019, Ayelet Shaked, then-justice minister, was more successful in changing the character of the Supreme Court to become more conservative than any politician before her.
She called it her “revolution.”
But it did not work. Or to be more precise, it got Israel’s conservatives only part of the way to their goal.
Will the sudden and surprising announcement by Justice Menachem Mazuz that he will retire early, in April 2021, instead of 2025 as planned, finally be the moment that tilts the balance and wipes out the liberal revolution of the 1990s?
The answer is: maybe, and more likely than ever before, but it is still far from certain.
First, let’s lay out the makeup of the court: In broad terms, there are eight liberals, split evenly between moderates and activists, and seven conservatives, three moderates and four purists.
If conservatives are chosen to replace both Mazuz and Hanan Melcer, who is also retiring in April 2021, they could reverse the balance from 8-7 in favor of liberals to an 8-7 conservative majority.
The following year, 2022, brings on the retirement of moderate liberal George Kara and moderate conservative Neal Hendel, offering less of a chance to influence the balance.
But in 2023, activist liberal Anat Baron and moderate liberal and Chief Justice Esther Hayut will retire, offering conservatives a bigger opportunity to change the balance.
If conservatives take over, they could change the character of the country on issues as fateful as the status of the West Bank, the balance of Jewish versus non-Jewish identity of the state, and the balance of security versus human rights regarding the Palestinians.
Contrary to conventional thought, moving the court to the conservative side may not necessarily help Prime Minister Benjamin Netanyahu in his already ongoing public corruption trial, lead to disqualifying more Israeli-Arabs MKs from running for the Knesset, or change the balance of religion and state issues in favor of the ultra-Orthodox.
However, all of this could be hot air.
First, Hendel, along with Yitzhak Amit and Yael Wilner, are moderate conservatives who have sometimes sided with the liberals.
If they feel the court is being dominated by purist conservatives, they may start to swing to join the liberal wing more often, as has happened recently with the US Supreme Court.
Next, according to current law, new Supreme Court justices require seven votes to be appointed.
Three of the Judicial Selection Committee’s nine members are Supreme Court justices, usually from the liberal wing, and they might be able to stall any attempts to completely alter the court’s character and demand horse-trading of one liberal for one conservative, as they sometimes did when Shaked was justice minister.
At the very least, such a tactic would buy time, perhaps enough for a less conservative government to eventually emerge, especially since Baron and Hayut do not retire until October 2023.
In order to avoid this scenario, any new, more conservative government would need to alter the entire basis for appointing judges, and it may not have the votes for this, even if it has enough to put more conservatives on the Judicial Selection Committee than are there currently.
Another possibility is that Mazuz and Melcer retire before the next government forms and before the next Judicial Selection Committee can be formed. In this case, the Supreme Court would operate shorthanded.
Yet another scenario is that the next government is a mix of Yamina and Yesh Atid, which would likely block any major conservative moves.
On major cases where nine or 11 justices preside, Hayut can always maneuver a majority of liberals onto the panel, as long as there are at least five to six serving liberals.
So the future is far from clear.
But if the next government is a clear right-wing administration led by the Likud and Yamina, the country’s conservatives will have their strongest chance in decades to take over the court.