The 800-pound gorilla in the room of judicial reform

Defenders of the Supreme Court cannot explain how it has lost its connection with the Israeli majority.

Israeli Supreme Court President Esther Hayut (center) with other justices at court in Jerusalem, May 29, 2022. Photo by Yonatan Sindel/Flash90.
Israeli Supreme Court President Esther Hayut (center) with other justices at court in Jerusalem, May 29, 2022. Photo by Yonatan Sindel/Flash90.
Douglas Altabef
Douglas Altabef
Douglas Altabef is chairman of the board of Im Tirtzu and a director of the Israel Independence Fund. He can be reached at: dougaltabef@gmail.com.    

The raging controversy surrounding proposed reforms to Israel’s Supreme Court has prompted not only emotional protests but also detailed rationales as to why the Court is doing exactly what it should be doing.

I have attempted to engage in what is becoming an increasingly rare endeavor in our world: Exploring the views, opinions and rationales of the other side of the issue.

There is much that deserves consideration: Israel is the odd man out in the democratic world in terms of its legal system. Commentators have done impressive work in explaining why that system, with all its admitted problems, nevertheless makes sense and should not be tampered with.

However, there is one glaring problem with all these analyses: They fail to explain how we got to this point. Why are so many Israeli citizens discontented with and resentful of the Supreme Court? Why do they feel it has abandoned them?

The defenders of the Court ignore this 800-pound gorilla in the room: In the name of a passionate defense of minority rights, the Court has abrogated its responsibility to the will of the majority. As such, the Israeli Supreme Court has become the embodiment of the endemic elitism that has alienated and enraged citizens in other Western countries.

This is not populism. It is a result of the belief that our judicial leaders should be looking after us, and should have our cares and concerns firmly in mind when they make their decisions.

When the Court tells intimidated residents of south Tel Aviv to suck it up because the government’s efforts to curtail the influx of illegal migrants run afoul of the rights of people who have no connection to this country, then something important has been lost.

When bereaved families of terror victims are forced to scrape together the funds to pay legal fees required to oppose petition after Supreme Court petition filed by European-financed lawyers from anti-Israel NGOs representing terrorists and their families who are trying to prevent all Israeli attempts to punish and deter terror, then something is seriously amiss.

The Supreme Court has used its almost unlimited discretion, abandoned standing and embraced a dangerously open-ended standard of “reasonableness” to rule on anything it chooses, and thus enshrine the rights and prerogatives of minorities so as to, seemingly by design, thwart the common good and popular will.

It is therefore no surprise that a great deal of the criticism directed at the Court concerns its “old boy network,” which is akin to the drawing rooms of Israel’s affluent suburbs, but not to vast swaths of the country.

The desire to change the judicial selection process grows in part out of the frustration that this closed shop has little if any empathy or understanding of the needs and concerns of regular people.

It is sad, but perhaps inevitable, that the issue of judicial reform, while critical in and of itself, has also become the embodiment of a deeper social divide in the nation. One senses that this is the Custer’s Last Stand for the secular Ashkenazi elite who, having “lost” the Knesset, fear any kind of interference in their reliably left-wing Supreme Court.

Why else would there be calls for civil disobedience, threats to leave the country and dire predictions of doom—ranging from slashed credit ratings, a high-tech exodus and, of course, the death of Israeli democracy?

Ironically, it was the arousal of Middle Israel, in the democratic fashion of going to the polls, rather than to the barricades, that has brought Supreme Court reform to the fore. These voters might not have a detailed understanding of how the Court has seized the power to do whatever it wants, but they intuitively understand that, by doing whatever it wants, the Court has lost the confidence and trust of a great deal of the country.

That is the 800-pound gorilla in the room. Those who seek to maintain the integrity of the Court, which should be all of us, must be prepared to address this reality.

Whatever the specifics of the reforms themselves, the Court, like it or not, must be made to value and not disparage the needs of Israeli citizens. Only by doing so will the Court have a chance at being universally seen as the purveyor of justice that it is charged with being.

Douglas Altabef is chairman of the board of Im Tirtzu, Israel’s largest grassroots Zionist organization, and a director of B’yadenu and the Israel Independence Fund. He can be reached at dougaltabef@gmail.com.

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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