Full Court Press

By Elliot Jager
Wednesday, December 14, 2011

Israel Supreme Court President Dorit Beinisch, equivalent to the Chief Justice of the U.S. Supreme Court, recently called the Court's critics in the Knesset "robed Cossacks" waging a "campaign of delegitimation" and "incitement."  An unnamed associate of hers told reporters that Israel was heading down the same path as Germany in the 1930's.  What accounts for this tirade?

A political backlash is buffeting the Court.  It has been engineered mostly by Orthodox and populist right-wing politicians infuriated by the Court's left-wing judicial activism, but rightists are not the only ones worried about the institution.  As currently structured, the Court is finding it difficult to represent democratic values in a manner perceived as legitimate by all citizens.

The 16-member Supreme Court typically operates in panels of three justices, primarily hearing appeals from the lower courts. More potently, sitting as the High Court of Justice (known as Bagatz) and operating as a court of first instance—not an appellate court—the justices exercise judicial review over Knesset and governmental authorities applying Israel's still-in-the-making "constitution."  

Instead of resisting this flood, the High Court has embraced the principle established by former Supreme Court President Aharon Barak: "Everything is justiciable."  In contrast to the U.S. Supreme Court, which hears fewer than a hundred cases annually, Israel's Court handles over a thousand petitions each year.  Dissenting opinions are filed in around 60 percent of U.S. Supreme Court cases but were filed in only three percent of all Israeli Court cases from 1948 to 1994.   

The immediate controversy in Israel involves a spate of Knesset bills to change the Court.  The most important, says veteran Court observer Evelyn Gordon, would let the Knesset Constitution Committee vet Supreme Court candidates "like every other democracy in the world."  Another bill would rescind the requirement that any Supreme Court president be within three years of retirement (which would make pro-judicial restraint Justice Asher Grunis eligible to be president when Beinisch steps down at age 70 in February).  A third bill would require that the lawyers' representatives on the Court selection committee reflect the rank and file rather than the top echelon—which, today, effectively vetoes candidates (like Professor Ruth Gavison) who do not fit their mold.

Other bills would have limited the legal standing of foreign pressure groups before the Court and restricted European governments' ability to bankroll these proxy groups.  Still another bill would dramatically increase the fines for media that publish patently false stories about groups or individuals.

The Court's liberal defenders decry these measures.  They say that in Israel's fractious society, where the Knesset frequently shirks its responsibility to protect religious pluralism, civil liberties, and the rights of Palestinian Arabs in the West Bank, the Court has no choice but to fill the moral and legal vacuum.  Pure majority rule and increasing the politicians' role in vetting judicial nominees would destroy a necessary, albeit imperfect, division of powers.  On genuine national security issues, they note, the justices rarely intervene; when they do, they tend to back the government.

But this is a power play pitting illiberal counter-elites against no less irresponsible liberal elites, and more is involved than rightist push-back against a leftist institution.  It is not just right-wingers whom the Court infuriates, and not just because it generally leans left.  The controversy also reflects a sense that Israelis are questioning not just the politics but the fundamental legitimacy of the system.  It's been long in coming.

Tolerance, pluralism, and respect for minority rights can't be left to "the people" and their elected officials; independent judicial review is a necessary principle.  But the principle's legitimacy is best protected when it is exercised with restraint and when judges are not perceived as blatantly partisan.  Neither is true in Israel.  The present selection system produces a Court comprised mostly of like-minded types who essentially replicate themselves.  Justices are chosen through a nine-member Judges Selection Committee heavily weighted toward the judiciary that is chaired by the Minister of Justice and is comprised of one cabinet member, three sitting justices (including President Beinisch), two Bar Association delegates and two Knesset members.

Since Labor lost its electoral lock in 1977, Israel has become less secular and more inward-looking; the Court, meanwhile, has become the ultimate bastion of not just liberal values but left-wing political power.  The problem is not that the Court curbs the passions of the majority—that is how it is meant to function—but that it has frittered away its political legitimacy by relentlessly enabling leftist interest groups to co-opt and, in the public's mind, dominate its agenda.

Where does this leave Jabotinsky-style classical liberals who are unhappy with the Court's overreaching and its codependence with foreign-funded leftist pressure groups?  Some of them would rather accept a flawed, hyperactive Court than have a runaway populist Knesset.  The Likud's Dan Meridor has forcefully supported judicial prerogatives against political criticism. Benny Begin, also in the inner cabinet, referred to Knesset efforts against the Court as "political gluttony."  Even Prime Minister Benjamin Netanyahu, who allowed the issue to fester, has ultimately sided with Meridor and Begin against the Court's opponents within his own party and beyond.

Netanyahu made the right call.  Israelis can't convincingly criticize the Arab world's pure democracy, now catapulting one Islamist party after another to power, while championing populist majoritarianism in Israel.  Today's Knesset has no majority to block separate sidewalks and buses for men and women or prevent religious obscurantists from marginalizing women in the Israel Defense Forces.  It is questionable whether a majority would support Education Minister Gideon Sa'ar in forbidding separate, unequal elementary schools for Ethiopians in Petah Tikvah or would overturn the segregation of Sephardi ultra-Orthodox girls from their Hasidic classmates in Emmanuel.  The list goes on.

The issue is not that the Court makes tough and controversial decisions but that it is politically tone-deaf in doing its work.  Israel's Supreme Court, to restore badly needed legitimacy, must—like its critics—abjure "political gluttony" and internalize rather than delegitimize criticism.  Ultimately, however, Israel's High Court can only be safely revamped not salami-style by the Knesset but as part of an overall reform of the political system.

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