Hayut’s retirement, still significant, overshadowed by war - analysis

In normal times, the retirement of Supreme Court chief justice Esther Hayut, who reached the mandatory retirement age of 70 on Monday, would have been major news.

In normal times, the retirement of this jurist, who has been a judge for 33 years, sat on the Supreme Court for 20 years and served as its president for the last seven, would have provided ample grist for pundits, been the stuff of in-depth profiles, triggered paeans of praise from fellow jurists, and some words of censure from critics.

Her term as president during a tumultuous time when the authority and role of the Supreme Court were being questioned would have been analyzed from every imaginable angle.

In normal times.

But these are not normal times, and as such, her mandatory retirement was overshadowed by the current war, and the traditional retirement party for departing justices was not even held. Yet the event is not insignificant.

Hayut has been a dominant figure on the bench, and while not necessarily considered a towering jurist in the mold of a Meir Shamgar, Aharon Barak, or Menachem Elon, she was generally considered a very good president in that she was an efficient administrator and a fierce defender of the authority of the court who didn’t back down even in the face of unprecedented efforts to curb the court’s power and what critics believe is its overreach.

Her retirement comes in the middle of the battle over judicial reform, a struggle that now – because of the war – will be on hold.

Nevertheless, two decisions on critical cases she presided over – an amendment to a basic law curtailing the use of the reasonableness clause, and a basic law limiting who can order the prime minister to recuse himself – are still to be written and handed down.

Under the law, retiring judges have three months to finish writing opinions in pending cases, something she is sure to do, meaning that a decision on these two cases that deal with the foundational question of whether the Supreme Court can strike down basic laws will need to be delivered no later than January 16.

With Hayut’s departure, she will be replaced temporarily by Supreme Court Deputy President Uzi Vogelman. Because he is set to retire in a year as well, Vogelman, who has been on the court since 2009, let it be known that he was not interested in becoming the president, preferring for the sake of continuity that the job go to the next senior member of the court, Yitzhak Amit.

For Amit to be appointed Supreme Court president, however, the Judicial Selection Committee needs to convene, something that Justice Minister Yariv Levin refused to do as the judicial overhaul debate raged. As a result, Vogelman has taken the job by default, pending the convening of the committee – something nowhere on the horizon.

Esther Hayut's legacy

Hayut was considered an activist jurist on the left side of the political spectrum. Vogelman is considered even more activist, and further to the left, and has said that in extreme cases, he believes the court can provide judicial review of basic laws to preserve Israeli democracy. Amit is thought of as also being on the left but more conservative in his judicial philosophy than Hayut or Vogelman.

Vogelman is being thrust into his position at a sensitive time since cases dealing with the waging of the war will inevitably fall into his lap. Every major war here has seen significant issues come before the Supreme Court.

Some maintain that since Vogelman is only filling in temporarily and is the interim president of the court, his decisions will not have the same degree of authority as someone permanently appointed to that position. Interim caretakers run this argument and rarely enjoy the same degree of respect and authority as someone permanently appointed to the job.

Others, however, dismiss this argument, saying that since Vogelman has been on the bench for the last 16 years and is a seasoned jurist, there is no reason to question the authority of his judgments.

Hayut, in a parting letter to fellow jurists, noted that in contrast to previous Supreme Court presidents, no permanent successor had been appointed. Nevertheless, she said she felt that under Vogelman, the court was in “excellent hands.”

Hayut’s retirement is the second retirement from the court in a week, as Anat Baron – also considered an activist judge on the left side of the political spectrum – stepped down when she reached 70 last Thursday.

The court, therefore, has dropped from 15 to 13 members in a week, and the Right-Left, or Conservative-Activist split on the bench – which up until now tilted toward the activist side – is now fairly even. Replacements for Hayut and Baron will necessitate convening the Judicial Selection Committee, something that Levin has shown no intention of doing.

If eventually Amit does become Supreme Court president, he will serve until 2028 when – if the seniority system for determining who becomes the president of the court remains in place – Noam Sohlberg will take over.

That will be a significant moment since Sohlberg wears a kippah, lives in Gush Etzion, is considered a conservative, rather than an activist judge, and is believed to be on the right side of the political spectrum.