On paper, the score was 11-0. In a rush decision, delivered near midnight on May 6, the Israeli Supreme Court ruled unanimously that the Knesset could name Benjamin Netanyahu to form the next government and stay on as prime minister — even though he has been indicted on fraud and bribe-taking charges in that office.
The real score, peaking out between the lines of the ruling, appears to be simpler: Netanyahu's belligerent populism 1; rule of law, 0. The meaning of the decision is that, having procured a parliamentary majority by whatever means necessary, Netanyahu can ride roughshod over constraints on the majority's power.
In early March, in the third Israeli election in a year, parties committed to ending Netanyahu’s rule won a narrow parliamentary majority. Netanyahu, however, managed to push Benny Gantz, head of the largest opposition party, into agreeing to serve with him in a government of supposed national unity. The coronavirus crisis and Gantz’s inexperience contributed to that outcome; so did Netanyahu’s marathon demagoguery against Gantz forming a government with the help of legislators representing Israel’s Arab minority.
Once Netanyahu was close to forming a coalition, the Supreme Court agreed to hear a series of petitions asking that it disqualify him.
On one side of the argument was precedent: In 1993, the Supreme Court ruled that the prime minister must dismiss a cabinet minister who is under indictment. As an individual, the person was innocent until proven guilty, but the indictment itself was enough to cast doubt on the integrity of a public official. For a criminal defendant to stay in office “risked damaging the public’s trust in governmental authority,” the court ruled. Later, the Supreme Court extended the ruling to cover mayors: once indicted, they had to leave office.
On the other side was the quasi-constitutional law defining the government: It says a prime minister can stay in office until convicted of a crime and until the last appeal is exhausted. The reason: If the prime minister is forced to resign, the government falls and a new one must be formed or elections held. The law as written presumes that an indictment alone should not be enough to cause that political earthquake.
But what if no government had yet been formed? The court had to decide whether parliament could assign the job of prime minister to someone already indicted — despite the glaring appearance of condoning corruption and the even greater potential harm to the public’s trust in the system.
The court’s decision, written by Chief Justice Esther Hayut, was not to intervene. The Knesset majority has “wide political discretion,” she wrote, when it “translates the will of the votes” and picks the next prime minister. The court shouldn’t interfere except in “rare and unusual situations and the most extreme circumstances. The current case is not one of them,” she said, referring to a prime minister accused of giving a telecom tycoon regulatory favors worth $500 million in return for flattering media coverage, and offering a similar deal to the publisher of the country’s No. 2 newspaper.
The ruling was an evasion of the court’s role of providing a check on egregious misuse of power by the majority. In a radio interview Thursday, retired justice Eliyahu Matza ripped into the decision. “The Supreme Court has passed up an opportunity that may not return to lay an ethical foundation for the institutions of government in Israel,” Matza said. As for Hayut’s reasoning, he demanded, “what could be counted [as an extreme case] if not this one?”
The unanimous decision, Matza said, was both unusual and suspicious. "It's meant to shield the court," he suggested, and added, "The court shouldn't be shielding itself."
This is the crux: The Israeli right has railed against the Supreme Court for years and repeatedly looked for ways to reduce its powers. Since the investigations against him began, Netanyahu's attacks on the entire judicial system have become ever shriller. In Netanyahu's populist rhetoric, he embodies the will of the people, and judicial constraints are akin to a coup. In recently leaked comments, Netanyahu threatened that if the court disqualified him, "the masses will go out on the streets. There will be calls to boycott the elections."
And as legal commentator Baruch Kra of Israel’s Channel 13 News tweeted after the ruling, “Despite what judges and prosecutors love to tell you, the walls of the court aren’t really insulated against outside noise.”
We can’t read the justices’ minds. But it’s very hard not to share the suspicion that Netanyahu succeeded in convincing the court that it would be safer if it avoided confronting him.
Netanyahu’s criminal trial, postponed on the pretext of the pandemic, is now scheduled to begin on May 24. If all goes as expected, he will come to court as the prime minister. Outside court, he can be expected to continue his attacks on the judicial system. And the three Jerusalem District Court judges who hear his case will face the incredible challenge of showing themselves to be fair, just and insulated from the roaring beyond the courtroom walls.
Gershom Gorenberg is an Israeli historian and journalist. His books include The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977 and The Unmaking of Israel. He is a senior correspondent for The American Prospect and has written for The Atlantic Monthly, The New York Times Magazine, and The New York Review of Books.