Can it be that Justice Aharon Barak, the President of Israel’s Supreme Court, is at long last getting the message that his brand of super-judicial activism is contrary to fundamental democratic principles and the notion of constitutional government? For years he has ignored calls for restraint, contending that Israel’s highest court has a nearly sacred obligation to look at legislation and other matters in terms of the values of what he regards as an enlightened society. Since much of the criticism of this imperialistic view of the judicial role has come from religious groups and others who are unhappy with what the court has decided, it has been easy for Justice Barak to portray his opponents as remnants of some dark age who reject contemporary jurisprudence.
But now Knesset Speaker Reuven Rivlin – he assuredly is no charedi – has entered the fray and it is not possible for Mr. Barak to act as the beleaguered guardian of fundamental liberties. In an important speech and with President Moshe Katsav and Justice Barak in the audience, Rivlin charged that the Supreme Court has engineered a “constitutional revolution,” a “coup that today endangers the most sacred elements of Israeli democracy.” From the howls of protest by Barak’s claque and a subsequent speech that he made defending his court’s activism, it is evident that he is at least listening to what opponents, including within the legal profession, are saying about his hyper-activism.
In fairness, Justice Barak has by and large accepted a modest role for the Supreme Court when security issues are at stake, doubtlessly because he recognizes that these are sensitive matters and Israel’s situation requires that judges give substantial leeway to those in authority.
On ordinary domestic issues, Justice Barak and a majority of his colleagues have been fierce in their willingness to challenge the Knesset and government. Some of this arises from an arrangement that predates his tenure. Acting as the High Court of Justice, the Supreme Court has served as a national review board with power to determine the correctness of almost all that happens within Israel, including whether governmental appointments will go through and the adequacy of sentences imposed on those convicted of crimes. Little heed has been paid to basic procedural requirements, such as the standing of those who sue.
This wacky arrangement has drawn fire, mainly from within the legal establishment including judges, because it burdens the judiciary. There have been credible efforts to trim the judicial sails. However, on important issues that affect the country as a whole, Justice Barak has sailed on, imposing a personal ideological agenda on a society that often does not share that ideology. He has relied primarily on two Basic Laws enacted by the Knesset – Evelyn Gordon, the Supreme Court’s most trenchant critic, claims that these laws were enacted by Knesset votes of 32-21 and 23-0 – to impose secular norms on government and society.
As a consequence, religious and other social schisms have been exacerbated. Whereas the ordinary political processes operating in Israel, as in most democratic societies, promote compromise and the ideal of inclusion, the inevitable result of the Supreme Court’s jurisprudence has been to make religious Jews feel excluded. While some of the harshest criticism of the Court has come from this quarter, the Orthodox have not been alone in their distrust of Israel’s judiciary, as is evident from Speaker Rivlin’s critique.
Irrespective of how we may feel about particular rulings, extreme judicial activism should concern all who care about democracy. This is not a question of ideology or religion, but whether judges should override the will of the Knesset and the will of the people as expressed via the electoral process. As much as I do not like what Israel’s Supreme Court has done, I do not like what the Rehnquist-Scalia Supreme Court is doing in this country as it systematically erodes two generations of Court decisions and legislation in its ideologically-driven campaign to impose a right-wing ideology.
Judicial restraint is right, irrespective of the direction that activism is taking. While, of course, there are instances when courts must act to protect minorities, others deprived of access to the ordinary political processes and basic liberties, these must be exceptions and not the standard operating procedure for judges.
To make what is already bad even worse, Israel’s Supreme Court is essentially a self-perpetuating oligarchy dominated by legal secularists. While there is a mandatory retirement age that limits tenure, in an arrangement that may be unprecedented, the Supreme Court’s president plays the decisive role in selecting new members. This is an opportunity that Justice Barak has exploited to the full.
I imagine that there are sophists who will justify this system, presumably on the familiar ground that the end justifies the means and that the Knesset, elections and public opinion cannot be relied on to achieve the appropriate ideological ends. The remedy is rule by the elite and fiat and this cannot be reconciled with democratic principles.
As the Barak court was under attack by Speaker Rivlin for traducing the prerogatives of those who are authorized to legislate in Israel, there has now arisen a second source of discontent against the judicial imperialists. The three Knesset members who serve on the judicial selection committee for the Supreme Court refused to vote on the proposed new justices because they had not been given any opportunity to question the pre-selected candidates. This mini-rebellion against being used as rubber stamps surprisingly included a Labor member of the Knesset.
It’s probably too optimistic to think that Israel is on the road to serious judicial reform, that Justice Barak is capable of reversing course and recognizing that his approach is antithetical to democracy. Yet, by responding to his critics he is signaling that he can no longer ignore them.