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What these conservative Supreme Court justices won’t do

The conservative Supreme Court appointees will uphold liberalism, restrain activism, and sideline the politicians
Miriam Naor, left, Ayelet Shaked, center, and Moshe Kahlon discussing Supreme Court candidates on February 22, 2017. (Yonatan Sindel/Flash 90)
Miriam Naor, left, Ayelet Shaked, center, and Moshe Kahlon discussing Supreme Court candidates on February 22, 2017. (Yonatan Sindel/Flash 90)

The four new Judicial Appointments Committee selections to the Supreme Court last month have led to the usual partisan responses, breaking down along the lines of “winners” and “losers.” Despondent claims of an “anti-constitutional revolution” are being made simultaneously with celebratory assertions of “making history.”

The facts, however, are quite different.

All four new justices are veteran district court judges whose professional records are well known. These jurists are part of the Israeli legal system, as it has been shaped by previous generations of outstanding legal scholars. They were educated by the system’s leading justices, some of them on an individual basis. Over the course of many years, all four of the new Supreme Court justices studied and subsequently internalized those scholars’ and justices’ legal philosophies. As such, they are all fluent in liberalism, the language of Israeli law.

Judicial decisions are a collective endeavor, multigenerational and ongoing. Judges are not permitted to rule on a matter before them according to their own preferences; they are largely bound by precedents that define the spectrum of legitimate options available to them. Indeed, the greatest part of the law lies overwhelmingly in its past. While this view of the judge’s role is always valid, it is especially true regarding conservative judges, something that has been noted with regards to the new appointees. The clear meaning of legal conservatism in Israel is a continued commitment to liberal ideas.

However, there is more than one view of the correct balance between law and politics.

One option is a more activist approach, which allows for major and creative intervention by the courts in public life.

Another option chooses a more passive perspective, which limits the scope of judicial intervention in events and the decisions made by the other branches of the state.

It appears that the new appointees — none of them iconoclasts or overt rebels — will nudge the balance in Israel towards the passive end of the spectrum. This is a measured and reasonable change.

Even those who oppose the impending trend toward judicial passivity must examine the strategic benefits of the new appointments. It is widely acknowledged that public trust in the Supreme Court is its main strength. However, this has sharply deteriorated in recent years: the multi-year average of Israelis’ trust in the Supreme Court is around 60 percent (about 20 percent lower than in the previous generation).

Moreover; only some 42% percent of the right-wing and the Religious Zionist community have confidence in this institution.

Unfortunately, some rabbis, MKs and reporters have used attacks on the Court to launch their careers. After the new appointments, one can hope that this chorus line will quiet down a bit.

The strongest voice against the Court in the past decade has come from the religious sector. The continual and sometimes brutal attacks on the court are likely to lose some of their force once this community, which numbers about a tenth of the Israeli population, realizes that it can now count more than a quarter of the High Court’s justices as religious.

Now that the allegations by the right wing and religious sector of discrimination in the makeup of the Court have been silenced, we can turn to substantive disagreements without undermining the legitimacy of the institution or its decisions.

However, since our public sphere is treated as a zero-sum game, it is likely that the Left will now pick up the baton set down by the Right and start attacking the Court. Still, it would be wise to consider that the changes in the Court are not dramatic, since the new appointees are sons and daughters of the legal system.

Now that the group portrait of the court looks more “balanced,” the aggregate level of trust may stabilize at a higher level. This, in turn, may cause a decline in the populist hunger to advance the proposals that have been made to change the rules of the game, such as modifying the appointment process, setting a fixed term of service, increasing the number of justices, and, worst of all, implementing an override clause, which allows the parliament to override court decisions regarding the constitutionality of a specific piece of legislation.

We are currently living through a culture war in Israel. One of its casualties has been that the legislative and executive branches feel no inhibitions about damaging the country’s democratic fabric and eroding our commitment to the preservation of human rights. Israel has no constitution or bill of rights that judges can apply to the holy task that rests on their shoulders. The absence of such written criteria, on the one hand, and the lack of inhibitions, on the other hand, have created a delicate, complex, fragile, and even dangerous situation.

The Supreme Court carries the heavy burden of standing up to those in power under complex circumstances. It must protect human rights and minority rights against a transient majority in the Knesset, a predatory bureaucracy, and destructive political ambition.

Israel is a “state of all its minorities.” Because we are all minorities — in terms of ethnicity, gender, religion, culture, economic status, etc. — we are all at risk in this populist age. The last line of defense for all of us is an independent and sagacious Supreme Court, committed to individual and minority rights.

We can assume that the new appointees understand that judicial conservatism must not be translated into weakness when dealing with the challenges of the future. In the historical relay race to protect Israel’s standing as a Jewish and liberal democracy, the baton of responsibility has been passed on to a new generation. As conservatives, the new appointees know this well: their great predecessors — Shimon Agranat, Moshe Landau, Meir Shamgar, and Aharon Barak — are looking to them to continue their legacy.

Yedidia Stern is vice president for research at the Israel Democracy Institute and a professor of law at Bar-Ilan University.

About the Author
Yedidia Stern is vice president for research at the Israel Democracy Institute and a professor of law at Bar-Ilan University.
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