Next right-wing government could create constitutional court above Supreme Court, MK says

Overhaul architect Simcha Rothman warns drastic move transferring judicial review to new bench would be needed to deal with current top court, which ‘does not obey the law’

Should the current coalition form the next government after the upcoming election, it will consider establishing a constitutional court above the Supreme Court, Religious Zionism MK Simcha Rothman told The Times of Israel.

Such a court, which could be packed by the government, would be given the power to review challenges to legislation, stripping the current top court of the ability to strike down laws deemed incompatible with the quasi-constitutional Basic Laws, as it has done to several measures passed by Prime Minister Benjamin Netanyahu’s coalition.

Rothman, who was one of the architects of the government’s judicial overhaul agenda, said such a move would be needed to address what he described as a Supreme Court “that simply doesn’t obey the law.”

While expressing hope that Supreme Court justices would “moderate themselves” to avoid so drastic a step, “if there is no choice it might be that we need to do it,” Rothman said Wednesday.

Rothman, who chairs the powerful Knesset Constitution, Law and Justice Committee in which the government’s judicial overhaul legislation was prepared, made his comments in reference to multiple rulings by the Supreme Court, in its capacity as High Court, against the current government, including over Knesset legislation and government decisions and actions.

These rulings have led the government to denounce the court as ignoring the will of the Knesset, and in one instance to issue an unprecedented statement saying it did not view a High Court ruling as valid and would not abide by its terms.

Should the government create the court, it would also control its makeup and mandate, augmenting the coalition’s attempts to overhaul the judiciary, which critics say would remove vital checks on government power.

Legislation passed by the current government has given politicians a dominant voice in the appointment of judges in Israel; should parties in the current coalition return to power, they would in all likelihood similarly seek the upper hand in appointing judges to the new constitutional court.

Legislation advanced by the coalition, but which stopped short of final approval, sought to severely restrict the High Court’s power to conduct judicial review over Knesset legislation altogether, indicating that the new court would likely also have a restricted mandate.

Rothman did not detail what types of powers a constitutional court would have, including whether it would also take up the ability to review government decisions.

Like Rothman, Communications Minister Shlomo Karhi has also proposed that the government create a constitutional court above the Supreme Court, as have Knesset Finance Committee chair MK Hanoch Milwidsky of the Likud and his party colleague MK Avichay Buaron, both in the last two days.

It’s unclear whether such a move would be backed by Prime Minister Benjamin Netanyahu, Justice Minister Yariv Levin or others hoping to return to government, especially given the massive pushback any such move would likely face.

MK Karine Elharrar of the opposition Yesh Atid party condemned Rothman’s comments, saying the problem was not the High Court but rather “a coalition which passes anti-democratic laws which legitimize crimes.”

Asked how the current coalition would continue its judicial overhaul agenda in the next Knesset, Rothman said doing so would require addressing the power of the High Court to strike down Knesset legislation and review government decisions.

The High Court struck down a key judicial overhaul law in 2024, invalidating a Basic Law for the first time, and in just the last few weeks froze the implementation of two new laws, as well as budget transfers made after the Knesset was dissolved.

Rothman noted that the current coalition passed a bill in its first reading enabling a simple majority of 61 MKs to override a High Court decision invalidating legislation and severely restricting the court’s capability to strike down legislation in the first place.

The coalition could take up that bill where it left off in the next coalition and swiftly pass it through its final readings and into law, he said.

“If the High Court of Justice has the ability to strike down a law, [we need to determine] which law [it can strike down], and so on. And I think that, in our parliamentary system of government, it should be established that the final word always rests with the legislature,” said Rothman.

But more radical solutions were also possible, he added.

“Now there are ideas being floated, which may perhaps come to fruition, for a constitutional court or a constitutional tribunal. Because the question that we will have to deal with in the next Knesset is: what do we do with a court that simply does not obey the law? And that is the reality we have today — a court that simply does not obey the law,” said Rothman.

“I think that if the court continues with its method of non-compliance with the law, we will have to find a way to perhaps create a judicial instance above it. I very much hope that we will not have to — that we will not have to establish a court above the High Court of Justice. I hope that the judges will moderate themselves. But if there is no choice, it may be necessary to do this as well.”

Elharrar slammed Rothman’s proposal, asserting that the idea was simply a cover for reducing checks on government power.

“They do not really want a constitutional court; they want a court with political judges who reflect their views,” said Elharrar, adding that such a court in a country like Israel, which lacks a formal constitution, was “detached from reality.”

Israel does not have a full constitution but instead has a series of quasi-constitutional Basic Laws which determine how the institutions of government function. Since 1995, the court has used two Basic Laws as the basis of decisions to strike down legislation on 23 occasions.

Elharrar noted one of her party’s campaign planks should it be elected, which is to finally enshrine a full constitutional charter.

“In the next term, we will enact a constitution based on the values of the Declaration of Independence. As we have always said, the problem is not with the court, which is carrying out its role, but with the coalition that is passing anti-democratic laws that legitimize violations.”

Many democratic countries have constitutional courts to review legislation passed by parliament, although almost all have a written constitution to accompany and guide that court.

Any effort by a government to unilaterally establish a constitutional court above the current Supreme Court without broad agreement and support from a significant portion of the opposition would likely arouse intense political and public resistance similar to what was witnessed at the height of the protest movement against the current government’s judicial overhaul efforts in early 2023.

Governments in some countries identified as having suffered from democratic retreat, such as Hungary and Poland in the 2010s and 2020s, have curbed the powers of their top courts in order to remove constitutional checks on executive power.

Both Hungary under the Fidesz party and Poland under the Law and Justice party had their democracy ratings downgraded by watchdog indexes due to reforms that undermined the independence of their judiciaries.