The Israeli legislator gave unique powers to the President of the Supreme Court. For example, he is given the right to determine which judges will hear the various cases that reach the Supreme Court. The president determines who will discuss requests for leave to appeal in civil matters and who will discuss requests for leave to appeal administratively, who will discuss the matters of infiltrators and asylum seekers and who will discuss matters of class actions or insolvency. As such, he holds great power in his hands.
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The president is authorized not only to determine the compositions but also the number of judges who will hear the case, and how the composition will be determined (according to the principle of seniority or another consideration). Beyond that, the president sits on the committee for selecting judges. In these 100 words, I described the dramatic power of the President of the Supreme Court quite literally. Not for nothing does the coalition seek to change the rules of the game, and to abolish the principle of seniority according to which the oldest judge is appointed from among the serving Supreme Court judges.
Prof. Yonathan Givati and Attorney Israel Rosenberg from the Faculty of Law at the Hebrew University recently published a fascinating study published in a leading journal, which examines the use by the presidents of the Israeli Supreme Court of one of the most important powers of the president: requests for further discussion. From the article at least an exception emerges from the mandate given to presidents by the legislature.
The test should be objective
The Law of the Courts states that there is the possibility of holding another hearing in an expanded composition after a verdict has already been given by the composition of the Supreme Court: “A matter on which the Supreme Court has ruled in three… the President of the Supreme Court or another judge or judges who decide to do so, may respond In their opinion, the request if the halacha ruled by the Supreme Court contradicts a previous halacha of the Supreme Court, or because of the importance, difficulty or novelty of the halacha ruled on the matter, there is, in their opinion, room for further discussion.
The president is not only authorized to determine whether there will be another hearing in an expanded panel, but also to determine how many judges will sit in the expanded panel of the additional hearing.
The authority to hold another hearing is given to the president, but if he sat in the original composition, then the request is transferred to the deputy president or the judge next in line according to the principle of seniority. As we have seen from the language of the law, this is not an additional appeals court and the president cannot accept the request just because he thinks the verdict is unjust. The test should be objective and not subjective.
The article that is being published these days tries to examine what considerations actually guide the presidents in deciding whether to hold another debate. Apparently, the simplest thing was to check the reasons that the presidents write in the decision to hold another discussion. But surprisingly and unusually, the presidents of the Supreme Court do not write any reasoning when they decide to hold another hearing (only decisions to reject requests for another hearing are reasoned). The fact that the presidents do not give reasons for their decision apparently allows for great flexibility in applying the conditions established by law for holding another discussion.
In order to examine the considerations that actually guide the presidents in deciding whether to hold another hearing, the researchers took advantage of an interesting fact – the president who decided to hold the additional hearing almost always sits himself as a judge in the additional hearing. If the president examined the legal criteria for holding an additional hearing objectively, there is no reason to expect that in the additional hearing he would want to overturn the verdict more than the other judges who joined the case as part of the expanded composition.
Conversely, if the president uses the additional hearing as an appeal, and as an opportunity to overturn judgments with which he disagrees, then we will observe that in the additional hearing the president will want to overturn the verdict more than the other judges.
I will explain with an example: the group led by Esther Hayut ordered the evacuation of the settlement of Mitzpe Karim. In light of the fact that Hayut sat in the original composition, according to the principle of seniority, the request for another hearing was transferred to Judge Yitzhak Amit. The very fact that Amit accepted the request for another hearing should be separated from the question of whether Judge Amit agrees with the original judgment per se or disagrees with it.
Law separately, practice separately
The data collected by Prof. Givati and Attorney Rosenberg show that the judge who accepted the request for another hearing is more inclined to overturn the original ruling compared to his colleagues who judge in the same composition in the additional hearing. This, even though it is the same case, and all the judges are exposed to the same legal arguments.
That is, separate law and separate practice, and in practice Supreme Court presidents (the study examined all applications from the time of former president Binish in 2006 to the current president Hayut) use this authority to schedule another hearing in order to overturn judgments that are not to their liking, and in fact serve as an appeals court for the original judgment .
Furthermore, since the president is authorized to determine the number of judges who will sit in the additional hearing and can determine whether the composition will be determined randomly or according to the principle of seniority – the president can engineer in advance that the majority’s position will be according to his personal opinion, contrary to the ruling given by the initial composition of the Supreme Court.
I will give another example for the purpose. In 2016, a petition was submitted to the High Court against the IDF’s policy of keeping the bodies of terrorists for negotiation purposes. Justices Danziger, Handel and Kara disagreed on whether this policy was legal. Danziger and Kara believed not, while Handel qualified the policy in a minority opinion. The state submitted a request for another hearing, and President Hayut accepted the request and decided that the case would be heard before a panel of seven.
The expanded composition overturned the original ruling, by a majority of 4 against 3. Thus, President Hayut could assess in advance whether she should give another hearing and whether she would succeed in overturning the ruling, and how many judges would be required to do so.
The research shows that the probability that the judge who approved the request for another hearing will write a ruling that contradicts the position of the original ruling is 87%. The chance of a judge who did not make the decision and is added to the extended lineup to do so is 65%. This gap is large and statistically significant.
The study also shows that the biggest gap between the judge who approved the decision and a judge who did not accept the decision – is actually found in petitions to the High Court, which by nature usually deal with sensitive political and social issues. The smallest gap was in requests for further discussion of criminal appeals. The researchers found This strengthens the thesis that the approval of the request for another hearing does not necessarily stem from the question of whether it is a new law, but simply from the judge’s opposition to the ruling and a desire to overturn it.
When the president makes the decision, the results are different
A particularly important figure concerns an original examination by Givati and Rosenberg: is there a difference in the final result if the decision-maker on the existence of another hearing was the president of the Supreme Court or the vice-president or another judge. The study found that the probability that the verdict will be overturned depending on the position of the judge who made the decision is much higher when it is the supreme president than if the decision to approve the request for another hearing was made by another judge.
The explanation for this is simple: the president determines the composition and the number of judges, so it is much easier for him to engineer a result as he wishes.
In the article, Prof. Givati and Rosenberg refer to the famous Afrofi rule that revolutionized contract law and the court’s way of interpreting contracts. There is no dispute, both in the academy and among the judges of the Supreme Court, as is evident from their quotes, that this is a significant revolution.
In the Afrofim ruling it was determined that “in the interpretation of a contract, the true and common intention of the parties must be investigated… in a conflict between the language of the contract and the intention of its makers – the latter prevails”. In doing so, the court abolished the two-step method, according to which the opinion of the parties must first be examined according to the wording of the contract and only when there is no decision must it be examined in external circumstances.
Although the “Afrofim” ruling was a new ruling, contradicting an existing ruling, a difficult ruling that was accepted not unanimously but by a majority of 1-2 (Judges Barak and Levin against the minority position of Judge Mazza), a request for further discussion of the ruling was rejected. The request for another hearing reached Judge Tova Strasberg Cohen, who determined that no new halacha had been decided regarding Afrofim and therefore there is no justification for holding another hearing.
This, despite the fact that in later judgments, Judge Strasberg Cohen herself used to quote the Afrofi rule and relied on it. This fact is consistent with the claim that the decision to hold another hearing does not depend on the criteria in the law, but on the question of whether or not the judge agrees with the original verdict. It should be noted that a decade later, Judge Cheshin, one of the most prominent opponents of President Barak, received a request for another discussion on the Afrofim rule, but was unable to overturn the rule and remained in a minority position.
On the other hand, we all remember the High Court’s ruling against the Rabbinical Court, known as the “traitorous High Court”. As part of the original ruling, the High Court of Justice ruled that the “presumption of sharing” between the couple does not exist in the specific circumstances of the case discussed before the court. The majority position was that of Alex Stein and David Mintz against the minority position of Judge Yitzhak Amit.
Although Judges Stein and Mintz clarified that they are not establishing a new halacha and contradicting the customary halacha, President Esther Hayut ordered another hearing with an expanded panel of 9 judges. President Hayut decided to overturn the original verdict. In the verdict in the expanded panel, judges Solberg and Mintz made it clear that their position had no place at all to hold another hearing.
Did the legislator have this in mind?
The “Afrofim” rule and another hearing in the “traitorous” High Court show how strong the power of using another hearing is. At the request of the president of the Supreme Court, a request for another hearing is not granted, at the request of the president a request is granted. The real test is not whether it is a new or difficult law and complex, but whether the president agrees with the verdict or not. This authority, in this way, has never been given to the president who becomes a supreme court of appeal.
In these days, when the government seeks to legally challenge the method of appointing the President of the Supreme Court, understanding the power of the President is particularly important. The power of the president to hold further debates is dramatic, and now his effect in practice is empirically proven. Did the legislature envision this outcome when this authority was given to the Supreme President?
It should be noted that in the US the procedure for requests for further hearing in courts is conducted completely differently from the Israeli system. The decision on a request for further hearing is made by the full composition of the court. Also, the US Supreme Court in general conducts all its hearings in full composition. I will expand on this in another article.
Yehonatan Givati and Israel Rosenberg, “Why do Judges Grant Rehearing Requests? Evidence from the Supreme Court of Israel” Journal of Institutional and Theoretical Economics 179: 6-22 (2023)