Saturday, January 02, 1999

Israel’s Overactive High Court

(Originally published in the New York Jewish Week on July 17, 1998)

In a March 9, 1937 speech, President Franklin D. Roosevelt sharply criticized the Supreme Court for “acting not as a judicial body but as a policymaking body” that “casts doubt on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.”

FDR spoke of the “arbitrary exercise of judicial power” and implored that “we cannot yield our constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present.”

This was strong language, especially since at the time there was widespread labor violence and the Supreme Court was about to decide on the constitutionality of the National Labor Relations Act.

In the workings of our democracy, Roosevelt’s court-packing plan was defeated, although almost immediately there was the famous switch in time that saved nine, as the Supreme Court reversed itself and upheld New Deal legislation. Roosevelt lost the battle but won the war. Despite the severity of his language, the president’s right to speak out was not challenged. There were no calls for a special prosecutor or any action to punish him. Democracy, it was recognized in all quarters, encourages freedom of speech, even for presidents.

There was a different reaction in Israel last month when Deputy Religious Affairs Minister Yigal Bibi attacked his country’s Supreme Court in a Knesset speech, saying “We have reached a situation in the State of Israel where there is no law, no judgment, no justice.” The mildest critics called for his ouster; others asked for a criminal investigation.

There was nothing new in the remarkable unconcern for freedom of expression in the reaction to Bibi’s speech. On previous occasions, criticism of the Israeli Supreme Court had actually triggered police investigations, not to mention barrages of calumny directed against those who dared to exercise a right that is basic in any democratic society. That’s what happened, for example, in November 1996 when Dror Hoter-Yishai, chairman of the Israel Bar Association, said, among much else mildly critical of the Supreme Court, “I don’t know if you are aware of what is happening there today. Twenty-five appeals a day are heard. It’s a joke. Who can rule on 25 cases? Who can even read 25 cases? And we’re talking about life-and-death issues! This is simply scandalous.”

There is appropriateness to criticism of the Supreme Court serving as the linchpin for the restriction of free expression. In the name of democracy, the most fundamental democratic right is being denied to those who criticize an institution whose role can scarcely be squared with the idea of democracy.

The unique role of Israel’s Supreme Court is not a minor matter. As the High Court of Justice, it sits as a permanent board of review for nearly every issue that is called to its attention, thereby traducing every known juridical conception of what cases can be brought and by whom. Any complainant can go directly to the High Court of Justice with a bagatz petition, without much regard being paid to standing or any of the other considerations that limit the role of courts in all other democratic societies.

As one of many extraordinary examples of this hyperactive, superjudicial role, several years ago the court barred the granting of the Israel Prize to a prospective recipient whom it deemed unfit. Can any of us imagine the U.S. Supreme Court ruling that the president cannot bestow the Freedom Medal — this country’s highest civilian award — on someone of his choice?

Justice Robert Jackson once wrote in a Supreme Court dissent that the majority ruling was more fit to be studied by students of social psychology than of law. For Israel, I would amend the subfield to abnormal psychology. It is irrational, wholly aside from its anti-democratic aspect, to make a nation’s highest court the nesting place for quacks and malcontents.

Of course, the most significant illustration of Supreme Court activism in Israel concerns religious matters, with the judges increasingly applying civil standards to what had been regarded as governed by religious law. The picture many of us have of the court acting in defense of basic liberties is a distortion of a complicated issue and it excludes the key question of the role of the judiciary.

The view accepted everywhere by courts and judges that they should interfere only sparingly in the outcomes of the political process arises not merely from the abstract, albeit correct, notion that they are neither democratically chosen nor restrained. There is the important collateral consideration that what often seems to be the messy or inequitable workings of democratic institutions is, in fact, a preferable way of governance.

Democracy is a system where the warts are readily on display. What we often do not like, such as the deals and compromises, are features which underpin Churchill’s famous aphorism that democracy is the worst system of government except for all of the others. Deals and compromises probably mean that few are entirely satisfied, yet they also mean that few feel that they are entirely excluded from the workings of the political system.

Courts rarely have the capacity to script compromises, to give a part of the pie to all sides. This may mean little when ordinary matters are at stake. When the issue being contested goes to the heart of belief, the spoils of judicial victory can beget strong dissatisfaction.

Israel’s judicial activism in religious affairs can at times be nothing more than meddlesome or foolish, as when the High Court overturned Jerusalem’s willingness to close off a street to traffic on the Sabbath. Increasingly, though, the stakes are higher, particularly because of an expanding tendency to rule that rabbinical court judges must apply secular law as they issue religious rulings. This is, I believe, unprecedented in all of the Jewish experience, including in lands that were inhospitable to Jews.

It is scary to think that the day may come when rabbinical judges are subject to criminal penalty because they refuse to abide by civil law as they do their religious duty.

It is also scary to think that if published in Israel, this article could trigger a police investigation.