Judicial overreach: Are the chickens coming home to roost?

The belief that the law is being used (or rather, abused) as a weapon to advance a political doctrine that has failed to win support at the polls has taken root across diverse segments of Israeli society.

Israelis watch a Supreme Court session on petitions filed against the proposed government, outside the Knesset, April 3, 2020. Photo by Yonatan Sindel/Flash90
Israelis watch a Supreme Court session on petitions filed against the proposed government, outside the Knesset, April 3, 2020. Photo by Yonatan Sindel/Flash90
Martin Sherman
Martin Sherman
Martin Sherman spent seven years in operational capacities in the Israeli defense establishment. He is the founder of the Israel Institute for Strategic Studies (IISS), a member of the Habithonistim-Israel Defense & Security Forum (IDSF) research team, and a participant in the Israel Victory Project.

“In Israel, the negative impact of the judicialization of politics on the Supreme Court’s legitimacy is already beginning to show its mark. Over the past decade, the public image of the Supreme Court as an autonomous and impartial arbiter has been increasingly eroded … as political arrangements and public policies agreed upon in majoritarian decision-making arenas are likely to be reviewed by an often hostile Supreme Court. As a result, the court and its judges are increasingly viewed by a considerable portion of the Israeli public as pushing forward their own political agenda ... .” — Professor Ran Hirschl, “Towards Juristocracy,” Harvard University Press, 2004

I admit that I have used this citation from Hirschl’s book to introduce several previous articles on Israel’s legal establishment. However, I have little qualms in reusing it here—as it has lost of none of its past pertinence. If anything, quite the opposite is true.

Last week was a momentous, indeed tumultuous, week, with potentially far-reaching ramifications for Israel’s law enforcement establishment in general, and the judiciary, in particular.

On May 3 and May 4, a panel of 11 Supreme Court justices convened for a televised broadcast to rule on petitions to disqualify indicted Israeli Prime Minister Benjamin Netanyahu from being assigned the task of constituting the next government coalition, and to invalidate the Likud/Blue and White agreement as to the future mode of functioning of that joint coalition.

Although overall it was conducted in a general atmosphere of restrained respectability, the hearing exuded a discernible aura heralding that perceptible changes in the long-existing societal power structure in Israel were in the air.

Commenting on the televised proceedings, the vehemently Bibiphobic journalist, Anshel Pfeffer, of the far-left daily Haaretz, wrote: “… the judicial bonhomie could barely hide the fact that the justices knew they are fighting for their very legitimacy … .”

True, on the night of May 6, all 11 justices ruled unanimously that Netanyahu was, in fact, eligible to form the next government, and apart from some perfunctory remarks of displeasure on several clauses in the coalition agreement, they elected to refrain from any robust initiatives to mandate far-reaching changes in it. However, despite this, hardly any seasoned observer of the machinations of Israeli politics could fail to detect a palpable sense of growing recognition that the decades of judicial overreach were testing the limits of public patience, as well as judicial intrusion into the realm of politics is being perceived as increasingly unacceptable. But more on that later.

Subverting the democratic process

Thus, for example, despite the Supreme Court restraint, Gadi Taub, a senior lecturer at Hebrew University of Jerusalem’s School of Public Policy, found that the fact that the court even agreed to discuss the appeal was “outrageous,” “mind-boggling” and an “amazing feat of audacity.”

Thus, according to Taub, “In agreeing to adjudicate this issue in the first place, the court is behaving as if it feels it needs to protect democracy from citizens.

He pointed out: “There is no judiciary in any proper democracy as powerful as Israel’s Supreme Court,” remarking acerbically that: “In its own opinion, there is no limit to its power; there is nothing it does not believe is judicable, and it has the last word on everything.”

Taub observed that Menachem Mautner, former dean of Tel Aviv University’s left-leaning law faculty, wrote in his book, Law and the Culture of Israel, that, as the left has regularly failed to win at the ballot since 1977, it has decided to exploit the Supreme Court to advance its worldview. Thus, in Taub’s view, the leftist approach has been to subvert the democratic process “by moving political power from elected to appointed institutions—from the parliament to the court.”

The law as a political weapon

Accordingly, the belief that the law is being used (or rather, abused) as a weapon to advance a political doctrine that has failed to win support at the polls has taken root across diverse segments of Israeli society—as has the view that the Supreme Court has been complicit in helping minority constituencies impose their view on wider portions of the electorate (see Hirschl above).

For in the eyes of the layman—on whose trust the judiciary’s legitimacy is crucially dependent—the Supreme Court has not only regularly prevented the elected government from implementing the policy it was elected to implement, but at times, has coerced the government to implement policies it was elected to ensure were not implemented.

This disconnect between the perspectives of the Supreme Court justices and wide swathes of the general public has led to a precipitous fall in the credibility of the judiciary in general and the Supreme Court in particular. Citing an ongoing study of the credibility of Israel’s judicial system conducted by Haifa University, YNetnews’s Einav Schiff echoed a virtually identical diagnosis to that of Hirschl’s.

Thus, in a piece titled “The Supreme Court is losing the people’s trust,” he wrote: “The view of the court as an ivory tower, home to self-appointed gods, is becoming more and more common, and this is reflected in different confidence indexes. Last May, for example, the Rule of Law Index by Professor Arie Ratner of Haifa University found that 49 percent of Jewish Israeli citizens have confidence in the Supreme Court. In 2000, that rate stood at 80 percent. This isn’t a slip or a drop, it’s a collapse.”

The law as the last refuge of the unscrupulous?

It was in April 1775 that Samuel Johnson (1709-1784), the celebrated English writer, articulated his well-known dictum, “Patriotism is the last refuge of the scoundrel.” His biographer, James Boswell (1740-1795), explained that by “patriotism, Johnson did not mean a real and generous love of our country, but that pretended patriotism which so many … have made a cloak for self-interest.”

In Israel, against the backdrop of the turmoil over the functioning of the Supreme Court, one might well be tempted to formulate a parallel dictum. Thus, not patriotism, but the law, is last refuge of the unscrupulous, where any failed politician, unable to defeat his rivals at the polls, can—draped in “a cloak of self-interest” and driven not by a genuine love of the law, but by a desire to circumvent the will of the voters—enlist the courts to help unseat them. Or, in the previously cited words of Taub, “by moving political power from elected to appointed institutions—from the parliament to the court.”

Of course, none of this would have been possible unless the Supreme Court has not been amenable—indeed, eager—to facilitate such a power shift. This was particularly true for the period when Professor Aharon Barak was president of the Supreme Court—from 1995 to 2006.

The Supreme Court as an ‘alternate government’

One of Israel’s most prominent legal scholars, and Israel Prize laureate for law, Professor Amnon Rubinstein, who also served as an MK for the far-left Meretz faction and held several ministerial portfolios on its behalf, characterized, in vivid terms, the judicial metamorphosis Barak introduced. He wrote: “Barak was a revolutionary … who persuaded his colleagues to follow him and undertake an extraordinary judicial policy. According to this policy, the courts can adjudicate any administrative or legislative act … .”

Rubinstein continued: “Thus, a situation arose whereby the Supreme Court could convene and decide on every conceivable issue. In addition, the unreasonableness of an administrative measure became grounds for judicial intervention. This was a total revolution in the judicial thinking which characterized the Supreme Court of previous generations, and this has given it the reputation of the most activist court in the world … .”

 In fact, in Rubinstein’s view: “In practice, in many respects the Supreme Court under Barak become an alternate government.”

In his book, The Purse and the Sword: The Trials of Israel’s Legal Revolution,  Professor Daniel Friedmann, former dean of Tel Aviv University’s Faculty of Law and Justice Minister under Ehud Olmert, sets out a biting critique of Barak’s judicial doctrine. In it, he cites, approvingly, a caustic condemnation (p. 333) by the well-known, (self-professed) left-of-center journalist Ben-Dror Yemini: “It is doubtful whether anyone is more guilty of the decline in the Supreme Court’s position than Chief Justice Barak. … According to all the polls, there is no other man who has caused such an ongoing, dramatic decline in public confidence [in the court]. … Anyone looking for examples can find them in his megalomaniac declarations that “all is justiciable … .”

‘A world record for judicial hubris’? 

Echoing this sentiment, in his decidedly disapproving review of Barak’s book The Judge in a Democracy, which, significantly, he titled “Enlightened Despot,” former U.S. Court of Appeals judge and a senior lecturer at the University of Chicago Law School, Richard A. Posner writes: I have my differences with Robert Bork, but when he remarked that Barak establishes a world record for judicial hubris, he came very near the truth.

Widely considered to be one of the most influential legal scholars in the United States, and one of the most cited legal scholars of the 20th century, Posner asserts: “What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices … .”

According to Posner “ One is reminded of Napoleon’s taking the crown out of the pope’s hands and putting it on his own head. He [Barak] takes for granted that judges have inherent authority to override statutes. Such an approach can accurately be described as usurpative.”

Others have expressed similar concern as to the excess power of the Supreme Court and its growing intrusion into the realms of other branches of government. Commenting on a March 2010 injunction prohibiting any government dealing with plans for changes in Israel’s zoning laws, Professor Yoav Dotan, former dean at the Faculty of Law at the Hebrew University, wrote: “This is the first time in the history of Israel’s judicial branch that an injunction bars the government from dealing with a matter on its agenda. … This decision overturns the existing order. Not only has the Supreme Court never issued such a decision , but the decision itself constitutes an historic precedent in judicial activism in general. It is doubtful whether a court in any country ever dared to order its government what can and cannot be on its agenda … .” 

In his book, Coercing Virtue, the prominent jurist, Robert H. Bork, a former U.S. Court of Appeals judge, who taught constitutional law at Yale Law School and served as solicitor general and acting attorney general of the United States, strongly criticizes judicial activism both in the United States and Israel. Indeed, it is Israel that he sees as the country most afflicted by the phenomenon of judicial overreach.

Accordingly, Bork laments: “There would seem to be less and less reason for the Israeli people to bother electing an legislature and executive; the attorney general, with the backing of the Supreme Court can decide almost everything for them … ” (p. 120).

Indeed today, certainly by any criterion of layman common sense, Israeli Supreme Court violates some laws and invent others merely to impose its own ‏world view on the elected policy makers. It acts as if it is bound neither by the existence of written law nor by the absence of written law.

It overcomes both by brandishing the legalistic Excalibur of “proportionality” and “reasonableness,” criteria which only the knights (or high priests) of the Supreme Court are deemed qualified to determine.

Ignoring existing laws; invoking nonexistent laws?

Accordingly, the Supreme Court has regularly ridden rough shod over the decisions of the Knesset Central Election Committee to bar dominantly anti-Zionist parties and their candidates from participating in parliamentary elections—flagrantly ignoring that both the parties and numerous candidates thereof, are in stark violation of Clause 7A of the Basic Law: The Knesset. This explicitly states that “if the objects or actions of [a] list or of [a] person, expressly or by implication, include negation of the existence of the State of Israel as a Jewish and democratic state” and/or “support of armed struggle, by a hostile state or a terrorist organization, against the State of Israel,” they will be precluded from participation in elections.

Yet despite the fact that the deeds, declaration and documents of these anti-Zionist entities and individuals comprise undisguised and undeniable negation of the Jewish nature of Israel and support for armed struggle by Israel’s enemies against it, the Supreme Court has consistently (and incomprehensibly) ruled in favor of their participation.

Indeed, the Supreme Court has never upheld the preclusion of any anti-Zionist list or individual, despite their glaring violations of the law.

By contrast, the court has frequently instated injunctions prohibiting Jewish (typically right-wing) candidates based on the court’s interpretation of their “objects and actions” as constituting “incitement to racism,” despite the defendants denying that this was their intent.

Indeed, in many ways, the very fact that the Supreme Court, with a complement of 11 justices, agreed to hear the petition against Netanyahu being assigned the formation of the next government, despite it being totally devoid of any legal foundation, is in itself an manifestation of its tendency to ascribe itself powers it does not have.

After all, Basic Law: The Government determines unequivocally that the prime minister may remain in office until a final verdict (i.e., after all appeals have been exhausted) has been handed down, or by a complicated process, involving a vote of 61 MKs (Clause 18(a)(d))—neither of which apply in Netanyahu’s case; and that the president will assign the task of forming a government on a Knesset member, who has the backing of at least 61 MKs (Clause 10), which does apply in Netanyahu’s case.

Indeed, had the Supreme Court not sensed that winds of change were sweeping through Israel society, it might well have handed down a very different verdict.

Indeed, this is vividly reflected by the words of retired Justice Eliyahu Matza, in a recent interview: “In this ruling, the Supreme Court has missed an opportunity—which perhaps will not reoccur—to lay a moral foundation for the institutions of government in Israel. … [I would] have certainly ruled in favor of the petitions—and not just me. I am convinced that several of my retired colleagues who, served on the Supreme Court in the past would have also endorsed the petition.

Ironically, it was the late-Chief Justice Moshe Landau, president the Supreme Court in the pre-Barak era, who cautioned against precisely what Matza suggested: ruling on values rather than law. After all, by substituting their values for the law, the Supreme Court justices are conducting themselves in precisely the manner of which Hirschl cautions in the opening excerpt.

‘ … the treacherous swamp of opinions and beliefs’

Landau warned: “The [High] Court is getting into waters that are too deep. Into a treacherous swamp of political opinions and beliefs. And this is dangerous both for the country and for the Court. It is dangerous for the country because it exacerbates social rifts. And it is dangerous for the Court because the Court is losing the principle foundation on which it must base its standing: The belief in its neutrality of the judicial system in public disputes.” 

He added: “ … when the Court represents a certain opinion, no matter how progressive, it enrages a significant section of the public. … However, I must say that the Court contributes to creating this situation in that it inserts itself into areas where it has no place. It takes upon itself to decide on matters … which should be decided in the Knesset.”

It is thus difficult not to sense a creeping suspicion that the Supreme Court’s ruling was motivated less by a desire to preserve the law and more by a desire to preserve itself—as Alex Traiman argues.

Indeed, after decades of judicial overreach, there is finally a growing sense that the aura of infallibility accorded the Supreme Court, which forms the basis of its almost limitless power, so assiduously—some might say insidiously—cultivated by Chief Justice Aharon Barak, is beginning to dim.

Perhaps, then, the pigeons have at long last, come home to roost—or are just beginning to.

Martin Sherman is the founder and executive director of the Israel Institute for Strategic Studies.

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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