Moshe Kahlon
Moshe KahlonFlash 90

Moshe Kahlon's Kulanu party said Monday it will not agree to join the new coalition unless Likud cancels its plans to pass two bills aimed at curbing the Supreme Court’s “judicial activism,” just as Likud announced to its would-be coalition partners that it intends to pass the bills in the next Knesset.

One bill, known as the Override Clause, would make it difficult for the Supreme Court to declare a law unconstitutional, and would enable the Knesset to override such a decision. Another would alter the composition of the committee that appoints Supreme Court justices, in a way that decreases the power of the Supreme Court representatives in the committee.

After a meeting between the Likud and Kulanu negotiating teams Monday, both sides reported significant progress, but did not agree about the Supreme Court bills. Netanyahu then met with Kahlon personally and again, reportedly made progress on all issues, except the Supreme Court controversy.

In January, Kahlon told Haaretz that he vehemently opposes legislation to weaken the Supreme Court.

“I think we need to strengthen the Supreme Court,” he said. “We must not forget that this court is the last refuge of the weak, and it needs to be as strong as possible. All my life I’ve supported the need to strengthen the Supreme Court, even if it sometimes makes decisions that are inconvenient for one person or another.”

A momentous struggle

The bills are very important for the Jewish Home and United Torah Judaism, which presented Likud with several versions of the bills in the coalition negotiations and demanded that Likud select the versions it prefers.

The dispute over the bills indicates that Kahlon has sided with the Left in the decades-long momentous power struggle between the Supreme Court, on the one hand, and the Legislative and Executive branches on the other.

Whereas the Nation of Israel has elected nationalist Likud-led governments in the last three elections, the Supreme Court is perceived by nationalist critics as being a nepotistic self-selected oligarchy in which the anointed select their own successors, and which believes it is more enlightened than the unwashed masses that elect the government and is therefore entitled to strike down legislation as it sees fit.

The prime representative of this “judicial activism” stream is ex-Supreme Court President Aharon Barak, about whom the late US Judge Robert Bork wrote that he "establishes a world record for judicial hubris," and whom Judge Richard Posner called "a legal buccaneer." Barak is retired, but his legacy lives on, as the High Court proved in recent years when it repeatedly struck down Knesset bills that would have enabled the detention and expulsion of illegal infiltrators.

The proposed reform in the Committee for Selection of Judges would dilute the Supreme Court's influence in the committee by adding two more representatives from the Knesset. The committee currently has nine members, four of whom are politicians from the government and Knesset, and five of whom are Supreme Court judges and representatives of the Bar Association. Adding two MKs would give the politicians a majority in the committee. Not doing so means that the Supreme Court judges continue to be the main force selecting and appointing other judges.

Why did he break?

Nothing in Kahlon's political past indicated that he would be siding with the Left – but this tendency became apparent during his election campaign, in which he voiced an eagerness to cede territory in a deal with the Palestinian Authority, after decades of being aligned with the most nationalist stream in Likud.

Kahlon's sudden split in 2012 from Likud, where he was an extremely popular minister, also remains unexplained. But something happened, to cause him to leave Likud, and that same something may be behind his decision to pick a fight with his would-be coalition partners over the Supreme Court's powers, before a government is even formed.

The shift appears to have taken place between the time Kahlon was appointed Welfare Minister, in January 2011, and October 2012, when he announced he was taking a "time out" from politics.

What remains to be seen is – will Jewish Home and UTJ fight back against Kahlon's veto of the legislation they fought so hard to include in the coalition agreement? And if they do – how insistent will they be? If Kahlon is being manipulated, himself by unknown leftist forces, he may be willing to scuttle the nascent Netanyahu coalition rather than back down.