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The Court That Packed Itself

By Mordechai Haller

Israel’s Supreme Court justices are appointed by an arcane process dominated by the court itself. A call for democratic controls.


The Supreme Court is a body of great power. Once on the court, a Justice wields that power without democratic check. This is as it should be. But is it not wise, before that power is put in his hands for life, that a nominee be screened by the democracy in the fullest possible manner...?

—Charles Lund Black1

It is an axiom of democratic theory that the judicial branch of government should not itself be “democratic.” Courts are not supposed to represent the popular sentiment of the day, but rather to serve as a bulwark against the excesses of majority rule. Yet there is something different about Israel’s Supreme Court. It is, perhaps, the least democratic and most “countermajoritarian” of all high constitutional courts in democratic countries: Its justices are appointed to a permanent position without the approval of any elected body—not the Knesset, not the government, not the directly elected prime minister. Nor can they be removed or disciplined by the citizens’ elected representatives. Rather, they are selected by a Judicial Selections Committee, a body whose composition includes a few elected officials, but whose majority consists of senior members of the legal establishment, who are appointed by that same establishment. And three of this committee’s nine members are always, by law, sitting Supreme Court justices, whose influence over the committee’s decisions is nearly absolute. In other words, in Israel the judiciary selects itself.

For decades, the judicial selection process attracted little attention or criticism. The courts had to be protected, it was believed, against the pressures of a political culture not known for its deeply held democratic traditions. The rule of law, in the early decades of the state, needed all the help it could get, and the creation of an independent judiciary was given top priority. But since the current selection process for Supreme Court justices was introduced in 1953, the courts have grown much more powerful than they originally were. Executive actions have come under judicial review on a routine basis, often being reversed for reasons that are barely recognizable as having to do with law. In 1992, the Knesset handed the court the power to strike down legislation which does not conform with Israel’s character as a “Jewish and democratic” state, while leaving it up to the court to decide what those terms meant. Procedural rules concerning standing and justiciability, meant as a check on judicial excess, have likewise been reinterpreted into oblivion.2 The result of these changes, combined with the Supreme Court’s alternate role as the High Court of Justice (a court of first instance for the redress of grievances against the government), is that the Supreme Court has become a potent factor in making policy. In effect, the court has extended an open invitation to Israeli citizens who are troubled by any issue of public policy—from improper implementation of government decisions, to the appointment of an unqualified government official, to the passage of a law which seems to violate a right which itself has no basis in written law—to turn to the unelected courts rather than to their elected representatives in the Knesset as the easiest way to effect change.

Yet while its power has grown, the court has become, after decades of self-selection, distant from and unrepresentative of the citizenry. It is only natural that a group of expert justices, given the right to choose their own replacements, will prefer to appoint judges who are similar in outlook, temperament and background to themselves. As a result, the Israel Supreme Court is characterized today by a pronounced intellectual and professional homogeneity. Nearly all the justices are professional jurists, the products of Israel’s close-knit and intellectually monolithic legal education system. Few of them possess serious formal training, much less expertise, in any field outside of law. Because of the judiciary’s insulation from the social fabric of Israel, court and country are moving independently of one another in everything concerning basic values and assumptions, drifting apart, with no institutional means of keeping them together. Unless something is done to make the composition of the court more appropriate for the nation it is serving, Israel may find itself facing a severe crisis of faith in the judicial system—and without public faith, no judicial system can long function.

 

II

Every democracy that accords its judiciary a substantial role in constitutional affairs must find a way to balance two competing principles: Judicial independence, which demands that judges be protected from external pressures that may compromise the integrity of their rulings; and judicial accountability, which requires that judicial decisions respond to the fundamental, constitutive values of the nation whose laws they are interpreting.

Proper adjudication demands that judges be insulated from external pressures. Since judicial decisions frequently help or harm the fortunes of political actors—politicians, interest groups and so forth—it is imperative that judges never be dependent on their graces. Judges must also be free to act contrary to public opinion, since they alone can prevent majorities from violating individual or minority rights to achieve a popular aim. To ensure judicial independence, most democracies provide lifetime tenure and a guaranteed salary for the justices of their highest court; the idea being that judges who have reached the peak of professional accomplishment, and whose position and salary are guaranteed, will not easily be pressured into abandoning their role as defenders of law and justice.3

Yet “law” and “justice” are themselves problematic terms. Adjudication, and especially constitutional interpretation, is not merely a matter of combining technical proficiency with professional integrity. Rather, judges are constantly faced with the limitations of the written law, and are forced at every turn to apply their own conceptions and values in formulating their decisions. In the process, they often find themselves creating new legal categories—effectively writing the law with their own hand.

This fact, that judges often do not merely apply the law but actually create it, has been universally recognized by legal scholars throughout the world, including in Israel. As the American constitutional scholar Archibald Cox has put it, “that the [U.S.] Supreme Court plays a partly political role—that it makes public policy under the doctrine of judicial review—is all too obvious.”4 Yitzhak Englard, a professor of law at the Hebrew University who now sits on Israel’s Supreme Court, has written that the process of balancing values “contains basic elements of legislation, because of the weighing of interests, and the value judgments involved in prioritizing them, which precedes the formulation of the legal norm.”5 Or, in the words of the current president of Israel’s Supreme Court, Aharon Barak: “The judge is not a mirror reflecting the legal picture, but rather an artist who creates the picture with his own hands.”6

As makers of law, supreme courts inevitably make decisions on issues in which competing values—often the values which are most hotly disputed among the citizens—are pitted against one another. High court justices decide which values are to be expressed in the law, and these decisions are dependent in large part on their personal ideas of what is good for the country, rather than their professional analysis of legal texts. As Yale University legal scholar Charles L. Black noted, “it has been a very long time since anybody who thought about the subject to any effect has been possessed by the illusion that a judge’s judicial work is not influenced and formed by his whole lifeview, by his economic and political comprehensions, and by his sense, sharp or vague, of where justice lies in respect of the great question of his time.... It would be hard to find a well-regarded modern thinker who asserted the contrary.”7 Thus, legal scholars Jeffrey Segal and Harold Spaeth have shown that while the form of judicial decisions adheres closely to legal models, their content is better described in the context of overarching ideologies. In the American context, for example, “the Supreme Court decides disputes in light of the facts of the case vis-à-vis the ideological attitudes and values of the justices. Simply put, Rehnquist voted the way he did because he is extremely conservative; Marshall voted the way he did because he is extremely liberal.”8



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