OpinionColumn

Israel’s Supreme Court has been acting like a bull in a china shop

Judicial overreach has undermined the live-and-let-live agreements that underpin Israeli society.

Supreme Court Justice Noam Sohlberg at the court in Jerusalem, July 18, 2022. Photo by Noam Revkin Fenton/Flash90.
Supreme Court Justice Noam Sohlberg at the court in Jerusalem, July 18, 2022. Photo by Noam Revkin Fenton/Flash90.
Daniella Ashkenazy. Credit: Courtesy.
Daniella Ashkenazy
Daniella Ashkenazy is a well-published bilingual American-born Israeli journalist with a sociology background.

Most criticism of the proposed Israeli judicial reforms has focused on the Israeli Supreme Court’s overreach regarding judicial review of the decision-making of the executive and the legislature. Little has been said about the negative impact of the Court’s HaKol Shafit—everything is judicable—doctrine in other domains.

This doctrine was first applied in the 1990s by then-Chief Justice Aharon Barak. As a result of it, the Court rules annually on some 2,100 petitions regarding every aspect of life in Israel. In fact, the Court often rules on issues best governed by social dynamics—the province of psychology, sociology and political science—not the law. For example, in many aspects of religion in the public sphere.

In a 2001 case, for example, the Court struck down a local compromise that limited pork sales to the industrial zone of the small town of Bnei Ayish east of Ashdod, while prohibiting a non-kosher butcher opening his shop on the town’s main street. This local ordinance had allowed religious Mizrachi Jews and secular Russian Jews to live side-by-side in relative harmony. The Court, however, ruled that pork could be sold anywhere.

A long list of similar rulings in sensitive areas over the years triggered the 2018 passage of the Nation-State Basic Law, which was designed to “force” the judiciary to consider the Jewish character of Israel in its rulings, not just its democratic character already anchored in a Basic Law.

For decades, Israeli society and its political culture have been characterized by unwritten rules that encourage compromise solutions that “all sides can live with,” while norms of behavior in the public space have largely been considerate of the sensibilities of others. However, the heated social and political climate surrounding the judicial reform controversy has been accompanied by manifestations of in-your-face behavior that exacerbate underlying social tensions, a dynamic set in motion by the Supreme Court itself. Rather than ameliorating tensions, the Court has a record of amplifying them, helping to set the stage for the present clash that is eroding the very underpinnings of Israeli society.

In the past, Jews who eat chametz at home or at non-kosher restaurants during Passover would not do so in public due to standards of decorum and respect for others. However, this past Passover, the atmosphere was different. For example, a group of protesters sprinkled breadcrumbs in the foyer of a public hospital.

Israeli public hospitals follow kosher dietary rules in order to make themselves accessible to all citizens. For decades, hospitals had posted signs stating that chametz was banned on hospital premises during Passover while, for the most part, turning a blind eye to “infractions.” This worked splendidly until the Secular Forum, an NGO that seeks to dismantle all public manifestations of Jewishness in the public sphere, petitioned the High Court in 2020, claiming the “arrangement” at hospitals violated their civil rights as individuals. 

Their petition was directed towards all hospitals in Israel, including those that primarily serve religious Jews, such as Shaarei Tzedek in Jerusalem, Laniado in Netanya, and Mayanei HaYeshua in Bnei Brak—whose 200,000 inhabitants are primarily haredim or ultra-Orthodox Jews, although, of course, all these hospitals accept anyone as a patient. The Court could have declined to hear the case and let the existing “have-your-cake-and-eat-it-too” arrangement stand. They could have concluded that the issue was beyond their expertise or outside their jurisdiction. But they didn’t. They said there had to be a law.

Over three years, the Court rejected as discriminatory a host of creative solutions floated via back-channels with the Court. They were designed to dodge the issue, such as non-kosher spaces set aside on each ward (like segregated smoking areas) or kosher and non-kosher rooms on each ward during Passover week. After the court warned in Jan. 2021 that it was losing patience, it announced that signage banning chametz at hospital entrances could no longer be posted in the absence of a law. Hospitals would have to officially allow chametz.

The upshot of such pressure? A special amendment regarding hospitals was indeed passed on March 27, 2023–just before Passover, but also just as anti-judicial reform demonstrations were gaining momentum. The vaguely-worded amendment dumped the issue in the laps of hospital administrators, stating each hospital director would set policy on the issue while “taking into consideration the rights and needs of patients.” There was no authorization for hospital security to search for or confiscate chametz.

Substantively, nothing had changed. But given the charged political climate, the new legislation sparked the “sprinkling breadcrumbs across the lobby” protest. In another in-your-face move at the same Beersheva hospital, a department head who went to work with a bag of baguettes in his backpack posted a selfie taken at the Soroka Medical Center’s gate on his Facebook page. Others called for holding mass “pizza picnics” outside Sheba and Ichilov medical centers in metropolitan Tel Aviv.

On a much larger scale, on March 23 the most radical elements of the anti-reform movement seized on the pending passage of the Passover law amendment as an opportunity to amp up “religious coercion” rhetoric that held “tomorrow Israel will be like Iran.” Then, they took the unprecedented step of marching through Bnei Brak in a direct confrontation with its religious residents. Thankfully, this did not lead to a violent clash, but it definitely crossed a red line.

This state of affairs reflects a systemic problem in Israel’s Supreme Court. Propelled by a combination of arrogance and ignorance, the Court has been sowing avoidable friction in areas best left to social norms and pragmatic arrangements—religious practices being only one of many areas in which the Court has been acting like a bull in a china shop.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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