In its latest ruling on the appointment of the Civil Service Commissioner, the Justices of Israel’s Supreme Court established a new procedure that contradicts existing law. This shameful and anti-democratic ruling constitutes a watershed moment. While it had seemed that all that could be said about the lack of trust in the High Court of Justice had already been said, and we had grown accustomed to court decisions that distort the legislature’s intent, this ruling breaks new ground.

For the first time, the justices explicitly stated that their decisions change based on their assessment of the acting government, and that they believe the senior civil service should prevent the promotion of any government policy they deem unworthy. This ruling marks a fault line between those who believe in the importance of public law and those who have transformed it into part of the political arena; between those who think judges should be given enormous power to exercise rule-based judicial review and those who recognize the danger of potential abuse of such authority.

It is well known that there is a crisis of trust in the Israeli Supreme Court. This lack of trust in the judicial system reflects a loss of confidence in judicial objectivity. Israeli society granted Israeli judges extensive credit, even as they increasingly expanded their involvement in important public decisions, and even when decisions were based on their values, translated into the judicial terms of “reasonableness” and “proportionality.” But even credit has its limits.

When the court rules contrary to the law and contrary even to its own precedential rulings from only several years back—determining that the government is prevented from appointing anyone identified with its policy to the post of Civil Service Commissioner, and justifying this ruling based on the government’s identity while clarifying that they see no distinction between the law as it is and the law as it ought to be in their view—it becomes clear that it is no longer practicing legal adjudication.

When the Court decides that a case depends on which government is in power at the time, it is operating without impartiality, with the judges behaving as “politicians in robes.” Justice Amit openly admitted that he changed his ruling from a few years ago because he dislikes the current government. However, when a judge cannot separate his political positions from his legal stance, we can no longer speak of law. Changing the rules in the middle of the game and applying them inconsistently strips away the legitimacy of judicial decisions. If we do not have objective law, we have no law at all.

In judicial swearing-in ceremonies, Aharon Barak used to repeatedly emphasize the importance of public trust. He explained that a judge must “create a clear divide between his views as a private individual and his perceptions as a judge. He must be able to recognize that his personal opinions may not be shared by the general public. He must well distinguish between his own ‘credo’ and the nation’s ‘credo.’ He must be self-critical and restrained regarding his positions. He must respect the constraints that bind him as a judge.”

Elsewhere, he explained that judges’ objectivity in interpreting the law immunizes the court from claims that it supposedly acts against a certain sector or in favor of another. He further maintained that so long as the court upholds its neutrality, the judges will ensure that “every person in Israel, whatever their political, religious or social position, will find us a fortress that protects their rights.”

But this promise has been broken. A large part of the public believes that the court does not protect their rights and operates in a non-objective and non-neutral manner. A reading of the recent ruling makes it clear that Justices Amit and Barak Erez need to return to basic principles and recall the constraints on judges. Until then, the damage caused to the Court and its status is enormous.

Those who have already given up on the judicial system see such rulings as proof of all their claims. The time has come for those who still believe it possible to rehabilitate the relations between the branches of government to make their voices heard, and warn the majority judges that they have crossed the line. Now is the time to make it clear that they are in dire need of a course correction, for the benefit of the Court and Israeli society as a whole.

(First published in Hebrew in Makor Rishon, May 15, 2025)