In “Disorder in the Court,” Evelyn Gordon covers a great deal of ground in her systematic review of, and commentary on, Daniel Friedmann’s book-length critique of Israel’s judiciary. In many ways, she succeeds admirably.
Gordon’s points about the supreme court’s radically expansive definitions of justiciability and standing; its use of “human dignity” as a catch-all rubric under which to invent constitutional rights that the legislative branch of government has explicitly declined to create; its influence over judicial appointments; and more—these are compelling items in a bill of particulars against an abnormally interventionist court, certainly when compared with supreme courts in the rest of the democratic world. It’s hard to read this essay, or others by Friedmann or by Gordon herself over the years, without sharing a great deal of their assessment of the court’s overreach.
And yet, unlike either Gordon or Friedmann, I cannot place the blame for the court’s immense power entirely on the shoulders of supposedly wanton and power-hungry justices. The court’s relationship with the legislative and executive branches takes place not in an abstract legal realm but in a concrete political one. And there, in the tug-of-war among institutions, one finds a court whose power has grown mainly not by its own legal innovations but in tiny increments, over many years—and, crucially, almost always in response to a vacuum of governance left by the state’s other branches. This is true even when the justices themselves, with the former chief justice Aharon Barak in the vanguard, have claimed the opposite.
Examples abound, but for our purposes here I’ll cite three current ones, only one of which is discussed by Gordon.
Should converts to Judaism under the auspices of the Reform and Conservative movements be considered Jews for purposes of aliyah under Israel’s Law of Return? Throughout the 1990s, the supreme court refused to take up this issue, which so clearly deviated from strict questions of jurisprudence into ones of Jewish national identity and religious observance, as well as the country’s immigration policy. The court all but begged the Knesset to decide the matter. After all, the Law of Return, extended to all Jews and conferring immediate access to citizenship, describes that access not as a privilege but as a right. Only after a decade in which supplicant Jewish immigrants pleaded for official acknowledgement of this right—or, conversely, to be told they didn’t have it—did the court step in with its measured judgment that such converts indeed enjoyed the right to automatic citizenship but that the court would not rule on their halakhic status as Jews, leaving that question up to the state rabbinate.
True, this was a policy decision. But what choice did the court have? When a legislature refuses to redress so glaring a lacuna in law, what is a court of equity to do?
Next, take the controversy over the West Bank “outpost” settlement of Amona, a dispute that has dragged on for fifteen years and has lately become ever more visceral and painful as the December 25 deadline nears for the settlement’s court-ordered demolition and the evacuation of its inhabitants. It was the state, not the court, that first argued that Amona had been built on privately owned Palestinian land. The court’s key ruling in the matter concerned not the issue of ownership itself but rather its consequences: if the outpost was built on someone else’s private land, as the government asserted, then the government could not simply turn around and expropriate the land for sheer political convenience. The court’s fiercest language in its decisions on Amona is aimed not at the residents (or at the Palestinian appellants) but at irresponsible government institutions that simply ignored both the orders of the court and their own acknowledged duty to enforce the law.
Again, what’s a court to do?
And then there’s the natural-gas deal, with which Gordon’s essay opens. In what was essentially a commercial contract, Prime Minister Benjamin Netanyahu attempted to sign away a future government’s right to change the conditions under which private companies would be developing Israel’s largest natural resource. By what law, what constitutional power, could he undertake such a commitment? The Knesset has the power to ratify treaties and to commit future governments to its laws and stipulations. The prime minister does not have that power, and he knows it—as evidenced by the fact that he tried, and failed, to bring the details of the deal to a Knesset vote. To his boundless frustration, MKs were so spooked by the bad press surrounding the deal that they refused even to enter the plenum to vote on it.
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The cowardice here extended to cabinet ministers as well. Aryeh Deri, the economics minister and an evident supporter of the gas deal, nevertheless refused to sign an exemption order for it after it was deemed monopolistic by Israel’s anti-trust commissioner, thereby forcing Netanyahu to assume the post of economics minister himself in order to push the exemption through. To Deri, clearly, avoiding criticism was more important than faithfully dispensing his responsibilities in one of the country’s highest offices.
So, again, what should a court do? In raising this question I’m not second-guessing the wisdom of the government’s policy vis-à-vis the gas finds, let alone the need for regulatory stability that drove Netanyahu to make the bargain in the first place. But should a prime minister have the authority to bind the macro-economic policies of future governments without so much as a Knesset vote, not to say actual legislation? Some have argued that Netanyahu was merely offering the gas companies a signal of intent, and that future governments would still have the legal power to renegotiate any terms stipulated in the contract. If so, however, the court’s “overreach” in this case consisted only in taking Netanyahu’s signature more seriously and literally than have his defenders.
Both according to its own pronouncements and according to supreme court rulings by none other than Aharon Barak himself, the Knesset is still, after 68 years, Israel’s primordial constitutional assembly, tasked with delineating the institutions of the state. It is the Knesset that has the right, the power, and the obligation to set the rules and powers of the various institutions of the state, to make decisions, and to see its will carried out.
Indeed, where the legislature has cared enough to resist or to challenge the court’s rulings, even in sensitive areas involving possible infringements of human and civil rights—for example, the issue of administrative detention without trial, or of Palestinian family unification, or of a Jewish woman’s right to appeal an egregiously illiberal decision of a rabbinic court—the supreme court, more often than not, has let things stand where the Knesset wanted them to stand. By and large, however, and time and again, the Knesset has not only exercised its right not to decide but palmed off on the executive, or the court, the responsibility to act while fiercely protecting its license to gripe afterward.
True, there are areas where evidence of raw judicial overreach is more clear-cut. Gordon and Friedmann point to the supreme court’s habit of intervening in decisions by prosecutors on whether to bring indictments. They have also written at length on the court’s invention of the power to stop IDF military operations in mid-stride, as happened in Jenin in 2002, or the “blue pencil” principle pioneered by Barak that gives judges the right to cancel individual articles in Knesset bills—a power that veers as close to literally “legislating from the bench” as any democratic court is ever likely to come.
And it gets worse. On the other side of the curtain we have an attorney general, the country’s top prosecutor and simultaneously its top defense attorney, in possession of the power to issue indictments without recourse to a grand jury or to any other mechanism of oversight of the kind regarded as a basic protection in the U.S. or Britain.
Ayelet Shaked, the current justice minister, has railed against these and similar abuses, and she has been preceded by others on both the right and the left. In a 2007 interview with me, the legal scholar Amnon Rubinstein, an unabashed leftist and author of the Basic Law: Human Dignity and Liberty, spoke bluntly about the office of attorney general:
We’re in a peculiar position in which the attorney general and his representatives can indict any person without judicial examination, and can interfere in proceedings already started, such as closing a case or plea-bargaining, without judicial intervention. . . . The problem is that the same person is head of the state prosecution and [serves as] the government’s attorney. . . . There has to be a division between these two functions.
Nine years later, no such division has been put in place. All of which, however, is again simply to underline that the supreme court, and Israel’s overreaching and overactive judiciary in general, are not the cause but the symptom of a larger predicament. There is a cultural problem here that cuts across all of the institutions of the Israeli state.
Evelyn Gordon cites Friedmann’s figures showing that public trust in the supreme court has fallen in recent years. True enough. But trust in elected politicians is falling faster. This past July, the Central Bureau of Statistics released its latest annual survey on public trust in state institutions. The findings are entirely unsurprising. The most trusted institution is still the army, earning the confidence of 82 percent of Israelis. Coming in second, at 60 percent, is the state comptroller, with—critics take note—the judiciary close behind at 58 percent.
As for the three least trusted institutions in the survey, they comprise elected politicians: the cabinet (40 percent), the Knesset (38 percent), and at last place, with 22 percent, the political parties themselves, whose tribunes cannot hide from public scorn behind the dignity of an official institution. Lest one be tempted to ascribe this distrust to the “messiness” of democratic politics generally—Israeli politicians sometimes shrug off such findings by claiming that politicians are disliked by everyone, everywhere—the same survey shows that Israelis’ opinion of their local leaders is much higher; trust in local municipalities is at a comfortable 61 percent.
In brief, Israelis may no longer trust the court as they once did, but they trust their lawmakers much less—with good reason.
The Israeli judiciary needs reform. Indeed, the left’s shrill insistence that any such reform will undermine Israeli democracy (Gordon cites some particularly colorful examples) is as empty and thoughtless as the right’s grandstanding penchant for legislation that doesn’t legislate. What is more, the public agrees that reform is needed. Why hasn’t it happened? After all, the current rules governing the supreme-court appointments process were set not by Moses at Sinai but by a Knesset vote in 2008. (That’s right: a Knesset vote handed the supreme court a de-facto veto power over new justices.) So why can’t the Knesset find the courage to change the rules again?
The answer is that members of the Knesset, in a self-reinforcing cycle of perverse incentives, have come to rely on the court—the court they love to hate—to rein in their more feckless impulses and proposals. And that is also why the most serious and level-headed of Israel’s politicians—Benjamin Netanyahu, for example, and Ayelet Shaked herself—have quietly resisted legislative efforts to weaken the court. By this means have the other branches conspired, willy-nilly, to augment the judiciary’s natural tendency to expand its scope and power.
In the end, that tendency will be contained only when the Knesset makes a conscious decision to take its rightful place in running the nation’s affairs. In secret, in the crannies of the Knesset’s sprawling corridors where politicians plot their plots, even the loudest critics of the court, no matter how sincere and reasonable their criticism, know this to be true.
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