In a democratic polity, the law reigns supreme. No one stands above the law: no individual, no group, no leader and no branch of government. Already in the early 13th century, England’s Magna Carta subjected even the crown to the common law of the land. While Jewish tradition is somewhat ambiguous on the matter (see Sanhedrin 19a), the modern-day State of Israel has firmly established that we are all subject to the law, including, to be sure, the judiciary.
In Section 2 of Israel’s Basic Law, the Judiciary states quite bluntly: “In matters of adjudication, no authority is held over one who possesses judicial power, except the authority of the law.”
Judges are vested with the power of interpreting the law in disputes brought before them. While not authorized to legislate per se, the judicial branch of government is the final arbiter in determining what the law actually means.
Normally, this should prove to be a rather straightforward, even mundane task, accomplished, whenever necessary, with the help of a dictionary. But when judges begin tampering with the direct language of a statute, the term “in other words” becomes imbued with cynical irony.
Take an example from the United States. Two recent U.S. Supreme Court decisions revolved around the proper understanding of the pure and simple language employed by the statutes in question. Unsurprisingly, both rulings split 6:3 in exact alignment with the political predilections of each justice.
The first case addressed a 1990 act by Congress establishing Temporary Protected Status (TPS) for aliens from embattled or afflicted countries such as Somalia, Haiti and Syria. As its name implies, the program aimed to provide short-term humanitarian relief for aliens who could not safely return to their home countries.
Although designed to afford temporary relief, TPS designations in practice have often lasted for decades. Hence, President Donald Trump was intent on ending this aberration and ordered the program’s termination; essentially affirming that the term “temporary” should mean exactly what it purports to mean: interim, provisional, non-permanent.
But in her dissent, Justice Elena Kagan simply couldn’t countenance such philistine reasoning, contending that a Haitian national enjoying TPS status for 15 years should nevertheless be allowed to remain in California so as to continue treatment for Type 1 diabetes, since “In Haiti, the same disease can be a death sentence, given that country’s collapsed health-care infrastructure.” According to this rationale, the statute’s use of the term “temporary” should be vacated entirely whenever confronted by various “humanitarian” considerations.
The Israeli Supreme Court treated the law as a quaint ornament to be refashioned when necessary.
In Mullin v. Al Otro Lado, the Supreme Court’s two sparring camps argued over the accurate meaning of the Immigration and Nationality Act of 1952, under which an alien is allowed to apply for asylum only once he “arrives in the United States.” The majority reasonably held this to mean that an individual must physically enter the country prior to filing such an application.
But Justice Sonia Sotomayor apparently knew better, and to prove her point, she proposed several bizarre examples, such as when a train conductor announces, “We are arriving in Penn Station,” which might mean only that the train “has started slowing down half a mile away.” So, too, “If someone said, ‘Call me when you arrive in Washington, D.C.,’ it would be logical to call them once you have landed at DCA Airport, just across the river in Virginia. Nor would it be premature to say someone ‘arrives in’ San Francisco while she is still driving on the Golden Gate Bridge. These examples show that the meanings of the phrases ‘arrives in’ and ‘arriving in’ depend on context.”
This means that, to the extent “context” informs the meaning of “arrives in the United States,” the country’s borders have no significance. A migrant headed towards the Rio Grande from Mexico could apply for asylum long before actually crossing the border.
In Israel, “context” determines meaning whenever it suits the Supreme Court. Such was the logic of Yitzhak Amit, the president of the Supreme Court, when he explained why he suddenly felt the need to reverse a position he had adamantly held for years.
Previously, Amit was a believer in judicial restraint when addressing how Israel’s Civil Service Commissioner and other official “gatekeepers” should be appointed by the government. But that was before Prime Minister Benjamin Netanyahu began promoting major reforms throughout the legal system. Such conduct cries out for resolute judicial intervention, reasoned Amit, and thus his sudden demand that these appointments be allocated to an independent, professional selection committee (headed by a former Supreme Court justice, of course), rather than through a direct political appointment by the prime minister. Never mind that the law itself declares unequivocally, “The Government shall appoint the Civil Service Commissioner,” with no requirement whatsoever for a committee or even a tender.
As mandated by his manifestly political approach to “context,” Amit simply disregarded the plain meaning of the law to prevent what he sees as the utter collapse of proper governance norms and the end of Israeli democracy. Pining for the ways of the past, he lamented, “The norms of today are not the norms of 2011,” and thus, “the law must adapt itself to the changing reality.”
In short, the Israeli Supreme Court once again treated the law as nothing more than a quaint ornament to be refashioned when necessary. Such is the backdrop to the latest constitutional eruption over Israel’s Second Authority for Television and Radio, the statutory body responsible for regulating the country’s commercial broadcasters.
Under this same logic, the U.S. government would be denied the right to construct barriers along its borders.
At the heart of the conflict is a bitter fight over whether pro- or anti-government investors will take control of Israel’s Channel 13.
When Communications Minister Shlomo Karhi sought to appoint new members to the Second Authority’s board, the Supreme Court stepped in to freeze the process on suspicions of a conflict of interest. Following that, several board members resigned, leaving the Authority without the two-thirds quorum required by law to decide on Channel 13’s future.
As before, the Supreme Court threw the law to the wind and decided that, despite the statutory demand for a legal quorum, the Second Authority may continue regardless. Since the justices supposedly found reason to believe that the resignations were an orchestrated ploy aimed at preventing Channel 13 from being handed over to the anti-Netanyahu camp, they were left with no choice other than to revamp the law to their own liking.
Under this same logic, the U.S. government would be denied the right to construct barriers along its borders since this would be a deliberate attempt at preventing asylum seekers from filing their applications only upon physically arriving in the United States.
In an unprecedented move, the Israeli cabinet responded by declaring it would not comply with Supreme Court rulings devoid of any lawful foundation. “You have no power to trample the law,” they announced. “A ruling that contradicts the law will not be recognized, and decisions made under it are void.”
Pundits are quick to refer to this episode as yet another constitutional crisis, but the truth of the matter goes well beyond that: The cabinet may make bad or good decisions to advance its interests and thwart undesirable outcomes, but the remedy for such conduct is not nullifying the law and replacing it with ad hoc judicial caprice. The law must remain supreme and be applied in equal measure to all branches of government, including, and perhaps above all, the Supreme Court.
