Sanity Prevails: 11 to 0

Israel's High Court handed down a unanimous decision - and the public saw for themselves that there was no devious plot to undermine the separation of powers.

Supreme Court | Flash 90

Many among the extreme right and extreme left were bitterly disappointed by the High Court’s unequivocal decision not to disqualify Netanyahu from serving as prime minister. The ruling pulled the rug out from under the fairy tale of the deep state, which the extreme right has been trying to sell. When the most liberal and activist justices decide that Netanyahu can serve as prime minister, despite the serious criminal charges hanging over his head, the conspiracy balloon — is burst. The extreme left, too, is furious, with its chorus bellowing that the court’s decision is a whitewash, and that the justices are technocrats who fail to see the full picture. The flood of superlatives about the destruction of democracy is working overtime.

But the majority of Israelis, on both the right and the left, owe a great vote of thanks to the High Court for doing the right thing and sticking to its defined role. The court scrutinized the law and the relevant precedents and, because it could not find sufficient justification in them to intervene in the voters’ decision, did not stand in the way of the result — problematic in and of itself, to put it mildly — which is that the country will be led by a man under criminal indictment. The extreme left, which has forgotten about the presumption of innocence, learned a valuable lesson. The deep right, which has forgotten that “there are judges in Jerusalem” (in the words of Menachem Begin), was given a much-needed reminder. Both of the sides that are fanning the flames of the Israeli culture war, were disappointed by the concise but powerful ruling that does not speak in lofty terms about values, but rather-only about the scope of the authority of the judicial branch to review the political discretion of the legislative branch.

The High Court acted with great wisdom. It held public hearings that allowed the public at large to observe the way it works, from up close. There is nothing like seeing things with our own eyes to debunk thoughts about diabolical plots. We were given an opportunity to see a group of professionals, displaying curiosity, broad knowledge, sharpness, a modest dose of humor, and especially – a responsible and serious approach. This is the appropriate response to the subversive and unfounded attempt by interested parties to portray the justices as revolutionaries, out to undermine the doctrine of the separation of powers.

The ruling was unanimous. In the future, when the justices’ opinions are published, we will be exposed to a long list of arguments indicating disagreement among them. But their unanimous decision is almost a miracle, given that this is such an assertive group. It demonstrates the superficiality of the a priori classification of the justices along a spectrum ranging from “liberal” to “conservative.” When the issue to be addressed was respect for the very core of the democratic process, the entire High Court stepped back and adopted a passive stance, as it should have. This unanimity is like a breath of fresh air.

This is a moment of grace in the Israeli culture war. The majority needs to examine it closely and use it in order to escape the traps that the fundamentalists on the left and on the right are laying in the shared public space. Not for a moment do they relent from their destructive work. The right interprets the ruling as a tactical scheme, holding fire now in order to attack more forcefully in the near future, in the form of judicial review of the new arrangements legislated under the coalition agreement. The left interprets the ruling as the High Court’s surrender to the Prime Minister’s threats and the fear that it might be blamed for dragging us into a fourth round of elections, at whose end an override clause would be enacted.

Imagine — just imagine – a different world. One in which the right wing praises the Court for its restraint and, in light of the facts, stops inflating the absurd deep-state balloon; a world in which the left extols the Court for upholding the Deri-Pinhasi precedent that ethical conduct is the standard that must be met by elected officials and by public servants and reiterates that coalition agreements are justiciable. Imagine that this balanced stance is not always interpreted to the detriment of both sides, but rather – to the benefit of both.

I have no illusions that this court ruling, as dramatic as it is, will neutralize the poisons to which we have become addicted. All the same, we need to take advantage of this opportunity, in which sanity won by a landslide, 11 to 0, and leverage it. In practice, there is already an opportunity to do so in the coalition agreement, which includes the clause that “a reconciliation cabinet will be established to mend the tears in the Israeli social fabric.” This is the time to convene a professional committee that will make use of the coming months to draft a proposal for a new equilibrium between the political and the judicial. The deep right wants to stage a counter-revolution against the judocracy. The deep left wants to maintain the present situation in order to “save democracy.” Both of these purist positions place us in danger. We need a new way of thinking, balanced and sober, that will leave those on the margins frustrated, and the state – healthy.

The article was published in the Times of Israel.