¹ Basic Law: The Judiciary, s 15(b) (Israel).

² ibid ss 15(c) and 15(d).

³ The lack of a fact-finding process is often presented as judicial policy outlined by the HCJ, which denies requests to testify, cross-examine or other means to develop and to resolve factual controversies; see Dekel, Omer, Cross Examination in the High Court of Justice and the Administrative Court (2012) 35 Iyuney Mishpat (Tel Aviv University Law Review) 151Google Scholar; but see Barak-Erez, Daphne, Administrative Law: Procedural Administrative Law (Israel Bar Association 2017) 444–46Google Scholar (who defines this state of affairs as a feature of HCJ procedure and less as judicial policy).

⁴ HCJ 5/48 Leon v Acting District Commissioner of Tel Aviv (Gubernik) 19 October 1948, https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts%5C48%5C050%5C000%5CZ01&fileName=48000050_Z01.txt&type=4 (‘This court is not an arena for a duel of surprises between litigants but a forum for the basic clarification of disputes between parties. Such clarification after proper preparation by the parties is only possible if the submissions are properly defined and do not hide more than they disclose’).

⁵ See also Netael Bandel, ‘Only the High Court Is Allowed to Act Unreasonably’, Israel Hayom, 10 July 2023, https://www.israelhayom.co.il/news/law/article/14374202.

⁶ According to Fuller, the need to postpone judgment is one of the clear advantages of the adversary system: Fuller, Lon L, ‘The Adversary System’ in Berman, Harold (ed), Talks on American Law (Vintage Books 1971) 34, 43Google Scholar (‘a tendency to judge too swiftly in terms of the familiar that which is not yet fully known’); Fuller, Lon L and Randall, John D, ‘Professional Responsibility: Report of the Joint Conference’ (1958) 44 American Bar Association Journal 1159Google Scholar; Thibaut, John, Walker, Laurens and Lind, E Allan, ‘Adversary Presentation and Bias in Legal Decisionmaking’ (1972) 86 Harvard Law Review 386CrossRefGoogle Scholar.

⁷ HCJ 2412/23 The Movement for Quality Government in Israel v The Knesset (oral arguments held on 3 August 2023). The amendment (No 12) was enacted following an earlier petition to the Court and news reports that the Attorney General, Gali Baharav-Miara, had been considering the removal of Prime Minister Benjamin Netanyahu on the ground of alleged breach of a conflict-of-interest agreement for his involvement in the judicial reform.

⁸ https://www.youtube.com/watch?v=5kwlkS4zGVQ (in Hebrew).

⁹ Jeremy Sharon, ‘High Court Judges Say Law Shielding Netanyahu Clearly Legislated to Benefit Him’, The Times of Israel, 3 August 2023, https://www.timesofisrael.com/liveblog_entry/high-court-judges-says-law-shielding-netanyahu-clearly-legislated-to-benefit-him.

¹⁰ Chen Maanit, ‘Israel's Top Court Says Law to Get Around PM's Incapacitation is “Personal” in Nature’, Haaretz, 3 August 2023, https://www.haaretz.com/israel-news/2023-08-03/ty-article/israels-high-court-to-hear-petitions-against-law-to-get-around-pms-incapacitation/00000189-b9ce-d821-afdd-bbeee54b0000.

¹¹ ibid.

¹² Saada tweeted ‘[t]he law was self-evident and from the beginning it talked about PM removal due to physical inability to function. The Attorney General and the Court sought to usurp authority that was not theirs, and therefore we had to legislate and unambiguously clarify the obvious both regarding the current prime minister, and regarding future prime ministers’, https://twitter.com/MosheSaada1/status/1687041354499510278 (in Hebrew).

¹³ Akiva Bigman, ‘Esther Hayut's Personal Salad’, Mida, 7 August 2023.

¹⁴ HCJ 8948/22 Sheinfeld v The Knesset (18 January 2023).

¹⁵ Justice Elron dissented, holding that the petitions should be rejected, but believed that the Prime Minister should contact the Chairman of the Elections Committee so that he could determine whether Deri's recent tax convictions involved legal disgrace, which would have precluded Deri from serving as a minister.

¹⁶ Ben-Dror Yemini, ‘High Court of Justice Exposed Its Bias by Dismissing Deri from Government’, Ynet, 19 January 2023, https://www.ynetnews.com/article/h1w5ftlsi; Talia Einhorn, ‘In Disqualifying Deri, the High Court Exceeded Its Authority and Made a Factual and Legal Error’, Now 14 , 28 February 2023, https://www.now14.co.il/%D7%A4%D7%A8%D7%95%D7%A4-%D7%98%D7%9C%D7%99%D7%94-%D7%90%D7%99%D7%99%D7%A0%D7%94%D7%95%D7%A8%D7%9F-%D7%9E%D7%A1%D7%91%D7%99%D7%A8%D7%94-%D7%9C%D7%9E%D7%94-%D7%91%D7%92%D7%A5-%D7%98%D7%A2%D7%94; Yehuda Shlezinger, ‘The Great Injustice Done to Aryeh Deri’, Israel Hayom, 18 April 2023, https://www.israelhayom.co.il/news/politics/article/13949900.

¹⁷ Jeremy Sharon, ‘Deri v. High Court: What Did He Actually Pledge in His 2022 Plea Bargain?’, The Times of Israel, 24 January 2023, https://www.timesofisrael.com/deri-v-supreme-court-what-did-he-actually-pledge-in-his-2022-plea-bargain.

¹⁸ Eliav Breuer, ‘Arye Deri Quitting Politics Was Not Part of Plea Bargain, Mandelblit Admits’, The Jerusalem Post, 12 February 2023, https://www.jpost.com/israel-news/politics-and-diplomacy/article-731375.

¹⁹ See Frost, Amanda, ‘The Limits of Advocacy’ (2009) 59 Duke Law Journal 447Google Scholar; Larsen, Allison Orr, ‘Confronting Supreme Court Fact Finding’ (2012) 98 Virginia Law Review 1255Google Scholar. For recent examples of ‘facts problems’ in the US Supreme Court see Ian Millhiser, ‘The Supreme Court Hands the Religious Right a Big Victory by Lying about the Facts of the Case’, Vox, 27 June 2022, https://www.vox.com/2022/6/27/23184848/supreme-court-kennedy-bremerton-school-football-coach-prayer-neil-gorsuch; Sherrilyn Ifill, ‘When Diversity Matters’, The New York Review of Books, 19 January 2023, https://www.nybooks.com/articles/2023/01/19/when-oral-arguments-matter-sherrilyn-ifill.

²⁰ Malvina Halberstam, ‘Judicial Review, a Comparative Perspective: Israel, Canada, and the United States’ (2010) 31 Cardozo Law Review 2393, 2415.

²¹ HCJ 7/48 Al-Karbutli v Minister of Defense (3 January 1949) (‘The rule is that each respondent must give an affidavit for himself so as not to deprive the petitioner of the right to cross examine the respondent in court about his harmful action, which is the subject of his complaint’). See also HCJ 95/49 Al-Khoury v IDF Chief of Staff (which is considered a cornerstone in Israeli constitutional law: ‘On behalf of the respondents, two affidavits were submitted: the first (on behalf of the first respondent) statement is from the Chief of the Moyal Squadron, Deputy Chief Military Prosecutor; the second (on behalf of the second and third respondents) sworn statement is from the assistant to the district supervisor of the Israeli Police. They were interrogated thoroughly and at length by the petitioner's attorney. From all the information before us (including the petitioner's affidavit), the following facts preceded the issuance of the detention warrant dated 26.9.49’). See also HCJ 1/49 Bejerano v Minister of Police (10 February 1949), unofficial translation at https://versa.cardozo.yu.edu/opinions/bejerano-v-police-minister.

²² Barak-Erez (n 3) 444 fn 133; Dekel (n 3) 160.

²³ Frank, Jerome, Courts on Trial (Princeton University Press 1949) 57Google Scholar.

²⁴ High Court of Justice Rules of Procedure, s 18(a) (‘A party who wishes to cross examine the person who gave an affidavit on behalf of the opposing party, the court may allow him to do so, if he deems it necessary for the sake of justice’), and s 20(b) (‘In any matter not stipulated in these regulations, the Court may, at its discretion, if it deems it necessary to do justice, act in the way that is practised in a trial before a district court’). With regard to practice see Barak-Erez (n 3) 445.

²⁵ Barak-Erez (n 3) 431 fn 85.

²⁶ Owens, Ryan J and Simon, David A, ‘Explaining the Supreme Court's Shrinking Docket’ (2012) 53 William and Mary Law Review 1219, 1224Google Scholar (‘Ideology … drives much of Supreme Court decision making. It motivates whether the Justices grant review in cases, to whom the Chief Justice assigns opinions, whether the Justices bargain and negotiate over the content of opinions, Justices’ decisions to join final opinion coalitions, and the Court's review of lower court decisions’).

²⁷ Alex Traiman, ‘A Crisis of Judicial Proportions Explained, Part I: Reforming the Supreme Court, JNS , 31 March 2023. Recent Chief Justices have denied the classification of justices as conservative and progressive; see Esther Hayut, Statement in the Opening Session of the Association for Public Law Conference, Dan Carmel Hotel, 3 January 2019, https://supreme.court.gov.il/Speeches/%D7%93%D7%91%D7%A8%D7%99%20%D7%A0%D7%A9%D7%99%D7%90%D7%AA%20%D7%91%D7%99%D7%AA%20%D7%94%D7%9E%D7%A9%D7%A4%D7%98%20%D7%94%D7%A2%D7%9C%D7%99%D7%95%D7%9F%20%D7%91%D7%9B%D7%A0%D7%A1%20%D7%94%D7%A2%D7%9E%D7%95%D7%AA%D7%94%20%D7%9C%D7%9E%D7%A9%D7%A4%D7%98%20%D7%A6%D7%99%D7%91%D7%95%D7%A8%D7%99%203-1-2019.pdf. However, this classification is commonly used by the Court's press and general media; see Yuval Yoaz, ‘Misgav, Leave Sohlberg Alone’, Haaretz, 30 January 2017, https://www.haaretz.co.il/opinions/2017-01-30/ty-article-opinion/.premium/0000017f-dc3b-db5a-a57f-dc7b4c430000; Sharon Pulver, ‘A Revolution at the Top: Three of the Four Elected Justices – Conservatives’, Haaretz, 22 February 2017, https://www.haaretz.co.il/news/law/2017-02-22/ty-article/.premium/0000017f-e3f0-d9aa-afff-fbf81c8d0000; Mor Shimoni, ‘Three Conservative Judges on the Way to the Supreme Court’, Maariv, 22 February 2017, https://www.maariv.co.il/news/law/Article-575705.

²⁸ Dotan, Yoav, Lawyering for the Rule of Law: Government Lawyers and the Rise of Judicial Power in Israel (Cambridge University Press 2014) 126Google Scholar.

²⁹ ibid 134–35.

³⁰ Friedmann, Daniel, The Purse and the Sword: The Trials of Israel's Legal Revolution (Oxford University Press 2016) 237–51CrossRefGoogle Scholar; Garber, Aaron, “‘Was It or Was It Not”: Can There Be Stare Decisis Granting the Attorney-General Monopoly on Representation?’ (2021) 44 Tel Aviv Law Review Forum (in Hebrew)Google Scholar.

³¹ Courts Law, 1984, ss 26, 28. Seniority is to be determined according to the date of appointment.

³² ibid s 27.

³³ It is not clear how often the Chief Justice intervenes in panel composition. Recent Chief Justices maintained that their authority to determine panel composition is used only in rare cases (dozens out of thousands of cases). See Remarks by Chief Justice Miriam Naor of the Supreme Court at the Opening Ceremony of the Bar Association Conference at the Dan Hotel, Eilat, 21 May 2017, https://www.gov.il/he/departments/news/president_speech. I find this claim difficult in several ways. First, the impact of the authority is not determined solely by frequency, but also by the circumstances in which it is exercised (for example, important cases with broad social and political implications). Second, no explanations or justifications are given when the authority is used, which makes it almost impossible to monitor or guard against abuse. Third, over the last decades, the senior panels were mainly packed by justices belonging to the progressive camp; so it is clear that the transfer of the case to a senior panel ipso facto affects the result along known ideological lines. Fourth, sometimes a transfer to a senior panel was made not to influence the result but as a way of influencing the reasons supporting the result.

³⁴ Joseph Laufer, ‘Israel's Supreme Court: The First Decade’ (1964) 17 Legal Education 43, 44.

³⁵ Cohn, Haim H, ‘The First Fifty Years of the State of Israel’ (1999) 24 Journal of Supreme Court History 3, 10CrossRefGoogle Scholar.

³⁶ Quat, Jacob, ‘On the Structure of the Supreme Court’ (1965–66) 22 Hapraklit 249Google Scholar.

³⁷ Cohn (n 35) 3–4.

³⁸ See in recent years the accusation of senior legal official, Yair Altman, ‘Hayut Chose the Panel that Would Rule Like Her’, Israel Hayom, 24 December 2019, https://www.israelhayom.co.il/article/718295; David Rabi, ‘The Panel Composition in the Supreme Court: How Does It Affect the Fate of the Petitions?’ Maariv, 3 September 2020, https://www.maariv.co.il/news/law/Article-787586.

³⁹ Levitsky, Nomi, The Supremes: Inside the Supreme Court (Hakibbutz Hameuchad – Sifriat Poalim 2017) 438–39Google Scholar.

⁴⁰ Jeremy Sharon, ‘High Court Issues Injunction, Seeks Answers from the State on PM Recusal Law’, The Times of Israel, 6 August 2023, https://www.timesofisrael.com/high-court-demands-answers-from-state-on-recusal-law-expands-panel-to-11-justices.

⁴¹ Jeremy Sharon, ‘Unprecedented 15-Judge Panel to Hear Petition Against Coalition's Reasonableness Law’, The Times of Israel, 31 July 2023, https://www.timesofisrael.com/unprecedented-15-judge-panel-to-hear-petitions-against-coalitions-reasonableness-law.

⁴² It was reported by Channel 12 recently that the coalition is seeking to pass new legislation that would establish that the composition of the Supreme Court panel will be decided randomly by computer: TOI Staff, ‘Coalition Said Pushing Bill that Would Limit Powers of Next Supreme Court’, The Times of Israel, 4 September 2023, https://www.timesofisrael.com/coalition-said-pushing-bill-that-would-limit-powers-of-next-supreme-court-president.

⁴³ Basic Law: The Judiciary, s 20(b).

⁴⁴ Itzhak Englard, An Introduction to Law (2nd edn, Nevo 2019) 165 (in Hebrew).

⁴⁵ Haim H Cohn, ‘Obiter of Blessed Memory’ (2000) 31 Mishpatim (The Hebrew University Law Review) 415.

⁴⁶ Mautner, Menachem, Liberalism in Israel: Its History, Problems, and Futures (Tel Aviv University 2019) 33Google Scholar.

⁴⁷ CivA 6821/93 Bank Ha'Mizrachi and Others v Migdal (9 November 1995), https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts%5C93%5C210%5C068%5Cz01&fileName=93068210_z01.txt&type=4.

⁴⁸ Barak, Aharon, The Judge in a Democracy (University of Haifa 2004) 79Google Scholar (‘While I am aware there are those who critique the ruling in Bank Ha'Mizrachi … However, as long as the Bank Ha'Mizrachi ruling stands, it reflects the law of the land’).

⁴⁹ Moshe Landau, ‘Judicial Enactment of a Constitution to Israel’ (1996) 3 Mishpat Umimshal (Law and Government) 697.

⁵⁰ Cohn (n 45).

⁵¹ Sharon (n 9).

⁵² Marks v United States, 430 US 188 (1977).

⁵³ A good example is the issue of house demolition; see Kretzmer, David and Ronen, Yaël, The Occupation of Justice (2nd revised edn, Oxford University Press 2021) 376–77CrossRefGoogle Scholar.

⁵⁴ HCJ 45/49 Ontricht v Chairman of Haifa Municipality Election Committee (12 September 1949); HCJ 10/59 Levy v The Regional Rabbinical Court (29 June 1959); HCJ 991/91 Pasternak Ltd v Minister of Construction and Housing (2 September 1991). While, formally, the US Supreme Court cannot refuse to hear an admissible case, it has discretion whether to grant certiorari to review the case. Several considerations for review could be found in Rule 10 of the Rules of the Supreme Court of the United States (2019).

⁵⁵ Ruth Gavison, ‘Constitutions and Political Reconstruction? Israel's Quest for a Constitution’ (2003) 18 International Sociology 53, 63; Ariel L Bendor, ‘Standing of Public Interest Organizations in Israel’ (2022) 31 Transnational Law and Contemporary Problems 195.

⁵⁶ Menachem Mautner, ‘Why Is the High Court of Justice Associated with the Left?’, Haaretz, 26 October 2010, https://www.haaretz.co.il/opinions/2010-10-26/ty-article/0000017f-ed98-da6f-a77f-fd9e8aff0000.

⁵⁷ AdminA 3782/12 Tel Aviv-Yafo District Commander of the Israel Police v The Israeli Internet Association (24 March 2013); HCJ 2031/13 Regavim v Netanyahu, Prime Minister (22 June 2015); HCJ 4244/17 Har Shemesh v Director of the Tax Authority (12 April 2017); HCJ 9044/18 Asor v Attorney-General (3 December 2018); HCJ 837/19 Fuchs v Attorney General (4 February 2019); HCJ 2723/19 Ir Amim Association v Police Commander of the Jerusalem District (19 May 2019); HCJ 1724/18 Shamir v Minister of Justice (11 June 2019).

⁵⁸ Cohn (n 35) 3. The provisional government assumed the powers of the High Commissioner, who appointed the justices of the Supreme Court of British Mandatory Palestine. The High Commissioner acted upon instructions of the British Secretary of State for the Colonies, and the justices served at their pleasure.

⁵⁹ Today the Committee's composition is established in Basic Law: The Judiciary, s 4(b).

⁶⁰ Compare William H Rehnquist, ‘Presidential Appointments to the Supreme Court’ (1985) 2 Constitutional Commentary 319 (‘But though the President … may be subject under our system to checks and balances administered by the judicial branch of government, the courts themselves are subject to a different form of checks and balance administered by the President. Vacancies in the federal judiciary are filled by the President with the advice and consent of the United States Senate. Just as the courts may have their innings with the President, the President comes to have his innings with the courts’).

⁶¹ Since the 1980s there has been a systematic increase in the power of the Supreme Court by enlarging the scope (for example, in standing and justiciability doctrines) and the depth of judicial review (for example, the changes in theory and practice of the reasonableness and equality doctrines). Later, in the 1990s, after the enactment of the new Basic Laws (Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation), the Supreme Court adopted a fully fledged form of judicial review over primary legislation; for more see Segev, Joshua, ‘The Changing Role of the Israeli Supreme Court and the Question of Legitimacy’ (2006) 20 Temple International and Comparative Law Journal 1, 39–46Google Scholar.

⁶² See, eg, Daphne Barak-Erez, ‘From an Unwritten to a Written Constitution: The Israeli Challenge in American Perspective’ (1995) 26 Columbia Human Rights Law Review 309, 346 (‘The Israeli system will now face the same unresolved problems raised by judicial review in the American system: invalidation of the so-called “will of the majority” and adjudicating on the border of politics. In other words, it will face the legitimacy question: Should the courts be allowed to defeat laws enacted by a democratic legislature?’).

⁶³ Galei Tzahal, ‘Confirmed in the Knesset: The Appointment of Judges to the Supreme Court Will Require a Qualified Majority of 7 of the 9 Members of the Committee for the Appointment of Judges’, Globes, 29 July 2008, https://www.globes.co.il/news/article.aspx?did=1000366509; Mark Schon, ‘The Sa'ar Law Has Risen Against Its Creator: The Meeting of the Committee for the Appointment of Judges Exploded’, Calcalist, 22 September 2008, https://www.calcalist.co.il/local/articles/0,7340,L-3122243,00.html.

⁶⁴ Galanter, Marc, ‘Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change’ (1974) 8 Law and Society Review 95Google Scholar.

⁶⁵ Levitsky (n 39) 425.

⁶⁶ ibid. See also Green, Yonatan, ‘The Peculiar Case of the Israeli Legal System’ (2023) 24 Federalist Society Review 212, 238Google Scholar.

⁶⁷ Richard S Beth and Betsy Palmer, ‘Supreme Court Nominations: Senate Floor Procedure and Practice, 1789–2011’, Congressional Research Service, CRS Report for Congress, 11 March 2011, https://sgp.fas.org/crs/misc/RL33247.pdf.

⁶⁸ Alex Traiman, ‘A Crisis of Judicial Proportions Explained, Part I: Reforming the Supreme Court’, Jewish News Syndicate, 31 March 2023, https://www.jns.org/a-crisis-of-judicial-proportions-explained-part-i-reforming-the-supreme-court.

⁶⁹ Avishai Grinzaig, ‘Levin Unveils Plan to Reduce Power of Israel's Supreme Court’, Globes, 5 January 2023, https://en.globes.co.il/en/article-levin-unveils-plan-to-reduce-power-of-israels-supreme-court-1001434722; Friedmann (n 30).

⁷⁰ Eliav Breuer, ‘Israeli Judicial Reform Is Tit-for-Tat over Gaza Disengagement’, The Jerusalem Post, 10 March 2023, https://www.jpost.com/israel-news/article-733906. Assaf Malach compiled 50 notable left-of-centre decisions, mostly given by the HCJ in a diverse range of topics, that demonstrate the need for a judicial overhaul: Rochel Sylvetsky, ‘50 Israeli Supreme Court Decisions’, Israel National News, 3 May 2023, https://www.israelnationalnews.com/news/370855.

⁷¹ Pound, Roscoe, ‘The Causes of Popular Dissatisfaction with the Administration of Justice’ (1906) 29 American Bar Association 395Google Scholar.

⁷² Sachs, Stephen E, ‘Supreme Court as Superweapon: A Response to Epps & Sitaraman’ (2019) 129 Yale Law Journal Forum 93, 103Google Scholar; Epps, Daniel, ‘Nonpartisan Supreme Court Reform and the Biden Commission’ (2022) 106 Minnesota Law Review 2609, 2611–12Google Scholar.

⁷³ Tova Tsimuki, ‘“Most of the Judges Are Leftists”: Statements by the Expected Minister of Justice and the Planned Reform’, Ynet, 27 December 2022, https://www.ynet.co.il/news/article/s1mjwuotj; and compare Mautner, Menachem, Law and the Culture of Israel (Oxford University Press 2011) 99CrossRefGoogle Scholar.