By Evelyn Gordon
It’s hard to imagine a former justice in any other democracy trying to orchestrate a mass judicial resignation
Note: After Mosaic published my essay “Disorder in the Court” in early December, the magazine invited two people to respond to it, Haviv Rettig Gur and Jeremy Rabkin. The piece below is my response to their responses.
Many thanks to Haviv Rettig Gur and Jeremy Rabkin for their thoughtful responses to my essay, “Disorder in the Court.” Both make valuable points. If I begin with and focus the major part of my comments on Gur, it is because he rightly highlights a major contributor to the problem of judicial activism: namely, the Knesset.
My essay touched on some of the reasons for the Knesset’s passive acquiescence in the activism of Israel’s supreme court, and I’ll expand on those reasons later. But the fact remains that judicial imperialism could not persist had parliament not consistently declined to use its legislative powers to restore some checks and balances, thereby abdicating its own responsibilities as a coequal branch of government. Nevertheless, I take issue with Gur’s contention that the court expanded its reach largely to fill a vacuum left by parliament’s refusal to decide crucial issues. There are indeed cases in which the court has been forced to fill legal lacunae left by the Knesset, but they’re rare. Mostly, such lacunae exist only if you accept, as Gur seems to do, the court’s own contention that the Knesset must decide all major issues itself rather than delegating such decisions to the executive branch.
In reality, that isn’t how legislation works in any democracy. It’s standard practice for legislatures to pass bills that lay down general principles while leaving the executive to fill in the details through regulation. Letting a few experts sort through the details is simply more efficient than having dozens of non-expert legislators wrangle over every possible question that might arise. And sometimes there are also good substantive reasons for keeping those details out of primary legislation.
A salient example is a case cited by Gur himself: the law making converts to Judaism eligible for citizenship under the Law of Return without defining exactly who qualifies as a convert. It’s simply untrue that legislators dodged this issue; in reality, they made a very calculated decision to delegate it to the executive as the best way out of an impossible situation. The Knesset couldn’t formally recognize non-Orthodox conversions, because the Orthodox parties, who in those years were part of every governing coalition, would have brought down the government before any such law could pass. But neither could it formally recognize Orthodox conversions only, because that would have outraged overseas Jewry.
Delegating the decision to the executive was thus a sensible way to moderate the fallout of a political hot potato. The Interior Ministry, which was responsible for implementing the law, declared that a convert for the purposes of the Law of Return was any convert accepted by the state’s chief rabbinate, which, by law, had (and has) full control over local conversions. While that still didn’t satisfy overseas Jews, a ministerial regulation was at least less offensive than formal legislation denying recognition to non-Orthodox conversions.
Nor was the ministry’s definition itself unreasonable: however much one may dislike the rabbinate (and I do), it’s clearly the state agency most knowledgeable about conversion. Hence, the supreme court could and should have upheld the Knesset’s decision. Instead, it declared that unless the Knesset explicitly defined “who is a convert” in legislation, the justices would define it themselves.
Another salient example is the court’s ruling on draft deferrals for ?aredi yeshiva students. The original law, requiring military service of all Jewish men, gave the defense minister discretion to grant deferrals, and successive defense ministers, exercising this discretion, granted sweeping deferrals to ?aredim. But in 1998 the court suddenly declared that this delegation of authority was insufficient, and if the Knesset didn’t pass legislation on the matter, the court would decide for itself.
Virtually all Israelis understand that forcibly drafting tens of thousands of unwilling ?aredim overnight is impossible; so is throwing all of them in jail for draft-dodging. Thus, when the court insisted on legislation, the Knesset had no choice but to enact the existing deferral policy into law, with a few cosmetic changes aimed at furthering efforts to encourage voluntary enlistment.
By delegating this matter to the defense minister, the Knesset had been able to keep the formal demand for equal treatment on the books, even if everyone knew it couldn’t yet be implemented. In forcing the legislature to decide, the court pushed the state from a condition of de-jure equality but de-facto inequality into one of inequality both de facto and de jure. I fail to see how that constitutes an improvement
Nothing in Israel’s legal code bars the Knesset from delegating policy issues to the executive. Indeed, since the executive is democratically elected, it has a far greater right to decide such issues than does an unelected court. The court’s claim that Knesset inaction requires the justices to act in its stead is therefore just another excuse for justices to overturn policies they dislike.
Similarly unwarranted, though for different reasons, is Gur’s defense of judicial intervention in the contract unilaterally struck by the prime minister with the private companies involved in developing Israel’s offshore gas fields. I agree with Gur that the prime minister can’t bind the Knesset without its consent, and while the Knesset did pass a nonbinding resolution approving the overall deal, this isn’t the same as formal consent.
Nevertheless, courts don’t usually rule on a contract’s legality in advance; generally, they do so only in case of a dispute between the parties, at which point they may deem one or more provisions of the contract legally unenforceable. And that’s precisely what the justices could have done in this case by declaring that since the Knesset hadn’t yet tried to pass any legislation that might violate the contract’s regulatory-stability clause, and might well never do so, there wasn’t yet any concrete dispute. Thus here, too, the court’s intervention, in which it ruled the deal itself invalid, was a choice, not a necessity.
All of this leads to a second reason why I think assigning primary blame to the Knesset is unfair: it’s the court itself, by its overreach, that has placed lawmakers in the position where they must either wage open war against another branch of government or tacitly acquiesce in the usurpation of their power. And open war against the judiciary isn’t something to be undertaken lightly.
In my essay I mentioned some of the factors contributing to this situation: the stridency of left-leaning journalists, academics, and, yes, legislators who believe they benefit from the court’s activism; the tactic of libeling every attempt to rein in the court as “anti-democratic,” which frightens even opponents of the court’s agenda into silence; and the disturbing pattern by which politicians who promote judicial reform suddenly find themselves under criminal investigation, thereby undoubtedly scaring off others so inclined. All this is compounded by the fact that Israeli justices, both sitting and retired, engage in overt political lobbying of a kind inconceivable in other democracies.
In an article in Mida earlier this month, Michael Deborin detailed the latest such lobbying effort by Aharon Barak, the former president of the supreme court.Assailing a proposed reform of the judicial appointments process, Barak declared that “the supreme court is one family” and “we cannot bring in someone who is not part of the family”—i.e., anyone Barak and his judicial colleagues don’t like. As if that weren’t appalling enough, he added that if the proposed reform weren’t dropped, he’d urge all of his colleagues on the supreme court to resign.
It’s hard to imagine a former justice in any other democracy trying to orchestrate a mass judicial resignation, especially over a reform of minor impact. (The proposal would merely reinstate the appointments procedure in place prior to 2008, which not only differs very little from the current one but is one the justices themselves had strongly supported for decades.) Nor can one imagine politicians and the media in other democracies treating such a threat as unexceptionable. Worse, by portraying the proposal as a direct attack on the court, Barak converted a modest reform into a constitutional crisis, making it seem, wrongly, like a direct threat to Israeli democracy. Through repeated use of this tactic, the justices have made legal reform impossible without a major battle that could have serious fallout both at home and overseas.
“Level-headed” politicians, as Gur characterizes Prime Minister Benjamin Netanyahu and Justice Minister Ayelet Shaked, understand that they can’t fight on every front simultaneously, and also don’t waste precious time on fights they can’t win. In the current government, due to the opposition of one key coalition party, significant legal reforms are a lost cause. But it’s a big stretch to infer, as Gur does, that such political pragmatism conceals a secret opposition to judicial reform among leading conservative politicians.
I do agree with Gur that many Knesset members have shamefully “come to rely on the court . . . to rein in their more feckless impulses and proposals.” But far from justifying judicial activism, I see this as another pernicious consequence of that activism. Judicial imperialism doesn’t absolve legislators of responsibility for their own bad behavior. But it does incentivize such behavior, because on issues where legislators believe the court is likely to veto any substantive change, neither side of the aisle has any incentive to invest time in careful drafting, to reach workable compromises, or thoroughly to consider the consequences of a proposed bill. On the contrary, if a bill won’t ever be implemented, there’s an incentive to make it maximally outrageous so as at least to garner media attention. Thus, it’s no accident that the volume of irresponsible legislation emerging from the Knesset has increased markedly over the decades since the judicial revolution began.
It’s also no accident that, as Gur correctly notes, public trust in both the cabinet and Knesset has plummeted over these decades. This isn’t due merely, or even primarily, to “irresponsible” legislation, but to the fact that these bodies have repeatedly proved unable to fulfill the basic task for which they are elected: implementing policy. In some cases, that’s obviously the government’s own fault; but in too many other cases, it’s because cabinet and Knesset decisions have been overturned by either the attorney general or the court, or died aborning for fear of them.
A final observation in this regard. Gur concedes that public support for the court has dropped as well, though nowhere near so low as trust in either the cabinet or the Knesset. But a supreme court is supposed to be above the inherently volatile partisan fray; how else can it effectively play its role as arbiter of last resort? Hence, trust in a properly functioning court should be on a par with nonpartisan institutions like the Israel Defense Forces—and two decades ago, at 85 percent, it was. The fact that the supreme court now enjoys the trust of just over half the population ought to worry anyone who cares about Israel’s democracy.
It should also worry anyone who cares about democracy worldwide. As Jeremy Rabkin points out, judicial activism is increasingly common in other democracies as well, and though its effects differ from country to country, they are no less pernicious. As an example, consider the abortion wars that have raged unabated in America for over four decades, ever since the U.S. Supreme Court declared abortion a constitutional right. By contrast, abortion is a nonissue in Israel, thanks to a decades-old legislative compromise. Nor is this mere happenstance: by definition, supreme-court rulings on deeply divisive cultural issues turn them into zero-sum games. Unlike legislatures, courts cannot compromise; they must come down on one side or the other.
But neither abortion nor another hot-button cultural issue, gay marriage, is evidence of the Israeli court’s restraint, as Rabkin argues with regard to the latter. The main statute on which the court bases its claim to constitutional authority—the Basic Law: Human Dignity and Liberty—explicitly denies it the power to overturn preexisting legislation, and that includes both the abortion law and the law giving the Orthodox rabbinate exclusive control over marriage inside Israel. Nevertheless, though it can’t violate the Basic Law without destroying the basis of its own power, the court has done everything it can to promote gay marriage within that limit, including by ordering the state to give unmarried gay couples the same benefits as married couples and ordering it to recognize gay marriages performed overseas. (The latter ruling, incidentally, dates from 2006, when only six countries worldwide authorized gay marriage and most Western countries didn’t recognize such marriages performed abroad.)
Nor can I accept Rabkin’s objection to my argument in favor of letting the elected branches choose supreme-court justices. Because, he writes, Israel has a parliamentary system, in which the government by definition enjoys a majority, such a change might yield overly partisan appointments. Yet most of the world’s democracies have parliamentary rather than presidential systems, and in almost all of them, justices are chosen by the elected branches. Moreover, absent such a change, Rabkin’s preferred alternative—simply appointing more conservative justices—would be very difficult to implement, given the outsized role sitting justices play in the existing appointments system.
Rabkin is correct that the court’s activism gains Israel some credit in certain circles overseas. But it seems to me the court could maintain what he calls its “confident independence,” and its ensuing international regard, even without intervening in policy issues that are none of its business. Indeed, it was no less respected prior to the judicial revolution that I described in my essay, when it did exercise such restraint.
More importantly, however, I fear the price Israel pays for this credit is excessive. Since “Israelis have learned to cope with any number of challenges and frustrations that don’t get resolved,” Rabkin asserts, judicial activism can safely be left as one more. I agree that demanding instant solutions is often unwise. But, historically, Israel’s ability to cope with its many challenges has depended on the government’s ability to take decisive action when necessary. Unfortunately, that ability is increasingly constrained by the court in fields ranging from military operations (as Rabkin himself takes pains to document) to economic policy to issues of religion and state. Meanwhile, and not coincidentally, public trust in all three branches of government is eroding rapidly. And contrary to the fake threat posed by judicial reform, such erosion of trust in key democratic institutions, if it continues, could someday pose a real threat to Israeli democracy.
Perhaps Israel will muddle through as it has so often done before. But its odds of doing so would be significantly improved if its governments were able actually to implement policy and its supreme court commanded respect as a nonpartisan arbiter of the law. Neither of those conditions will be present so long as the scourge of judicial activism remains untamed.
Originally published in Mosaic on December 26, 2016