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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.


Instead of attempting to interpret the Israeli tradition of what a Jewish state is, the inclination of the Barak Court has been to reinterpret the word “Jewish” to mean something completely different—something indistinguishable from its values as a “democratic” state. According to Barak, Jewish values have constitutional force only to the extent that they are also democratic values. “The basic values of Judaism,” writes Barak, “are the basic values of the state. I mean the values of love of man, the sanctity of life, social justice, doing what is good and just, protecting human dignity, the rule of law over the legislator and the like, values which Judaism bequeathed to the whole world…. Indeed, the values of the State of Israel as a Jewish state are those universal values common to members of democratic society….”45 Such a statement is deeply troubling, since it so clearly defies the intentions behind the phrasing of the laws—intentions which are not difficult to ascertain, since the laws were passed only seven years ago. The word “Jewish” was meant to be distinguished from the word “democratic,” as it has always been in Israeli parlance. It was meant to express some form of Jewish particularism—cultural, religious, legal, symbolic or nationalistic, or a combination thereof. That this, and not universal democratic principles, is what is meant by the “Jewish” character of the state, is clearly understood in Israel by lawmaker and citizen alike. If we are to avoid the accusation that Barak is deliberately attempting to thwart the intentions of the Knesset and the latent constitutional beliefs of the public, we may draw only one possible conclusion: That Israel’s Supreme Court is so isolated in its intellectual climate, so removed from the ideals held by the members of the public, that its members actually understand this to be a legitimate reading of the law.

It is also troubling because these Basic Laws themselves are at the core of Israel’s “constitutional revolution”: For the first time, the court has been handed the power to determine just what Israel’s “values as a Jewish and democratic state” are, and to strike down legislation on the basis of that assessment. Such authority demands, it should go without saying, that judges possess a profound familiarity with the vast corpus of thought on both Judaism and democracy. Yet due to the limitations of their training, Israel’s Supreme Court justices are not “thoroughly steeped,” as Rostow put it, in either field. The paucity of jurists on the bench who are trained in the study of traditional Jewish texts all but prohibits a serious analysis of the state’s “Jewish” values; at the same time few of the sitting justices have broad exposure to the classical works of democratic thought, and are certainly not “experts” in democratic political theory. They are experts in Israeli law—an expertise which becomes less and less relevant as their new authority takes them farther and farther afield.

A further example of the kinds of problems which arise from a homogeneous, insular court can be seen in Aharon Barak’s now-infamous “enlightened community” test.46 When, in 1994, Barak declared that contradictions between the democratic and Jewish values of the state should be resolved “according to the views of the enlightened community in Israel,”47 he did not seem to be aware of the term’s stunning antidemocratic implications—that the values of a particular community, rather than those of the country as a whole, should reign in the determination of law—nor of the impact of the expression on the public’s opinion of the court. Predictably, the term sparked a scandal. Columnist Ben-Dror Yemini accused the Barak Court of “circumventing democracy in favor of the ideological coterie that controls the court,”48 and former Supreme Court President Moshe Landau used the phrase “judicial fundamentalism” in describing Barak’s “enlightened community” test.49 

But perhaps more importantly, the phrase was seized upon by those segments in the public who already felt alienated by the homogeneous court, and held up as proof of what they had long suspected: That the Israeli Supreme Court was an elitist, exclusive body advancing the interests of a particular group, rather than the ardent protector of liberty and justice for all. Since then, attacks on the court routinely make reference to the “enlightened community” test. While it is not clear precisely what Barak meant by the term (he has been difficult to pin down on the subject, and has distanced himself from the term in recent years), it does not really matter: It seems inconceivable that an idea so offensive to the public, so contemptuous of widely held values, so ignorant of the harm it would do to the court itself, could have been propagated and consistently reaffirmed by a court president who was not surrounded by colleagues more or less of the same mind.

Unfortunately, the court’s monolithic character and the growing gap between its values and those of the public are already beginning to take their toll on the court’s prestige. In a democracy, even a relatively young one such as Israel’s, citizens are usually adept at identifying sources of unchecked power over their lives. As ever-larger segments of the public come to sense that the nation’s character is being determined not by their elected representatives, but by what appears to be a clique of self-selecting legalists, it is inevitable that they will begin to lose confidence in the judiciary. All branches of government ultimately depend upon public respect, but this is especially true for the judiciary, which lacks the popular legitimacy that comes from being directly elected. And for the courts to maintain this respect, they must be seen as reflecting and applying the values most deeply cherished within the nation. As Archibald Cox has noted:

While the opinions of the court can help to shape our national understanding of ourselves, the roots of its decisions must already be in the nation. The aspirations voiced by the court must be those the community is willing not only to avow but in the end to live by. For the power of the great constitutional decisions rests upon the accuracy of the court’s perception of this kind of common will and upon the court’s ability, by expressing its perception, ultimately to command a consensus.50

Perhaps the gravest danger to the Israeli judiciary comes from the inability of many Israeli jurists to understand this simple fact. Instead, they have convinced themselves that the domination of the system by a handful of judges isolated from popular opinion somehow enhances the public confidence in the court. In the words of Ze’ev Segal, “The fact that the Selections Committee contains a significant plurality of jurists prevents, to a large extent, political abuse of the appointment process and ensures public confidence in the judiciary.”51 The shocking implications of Segal’s statement are that if the judiciary were selected by the democratically elected representatives of the Israeli people, the people would no longer have confidence in it; that the Israeli public is disinterested in exercising its sovereign prerogative of choosing those who govern; and that it prefers a non-accountable judiciary to make the rules by which it lives. This reasoning defies both common sense and accepted jurisprudential wisdom elsewhere. As American constitutional scholar Michael S. Paulsen put it: “So long as the courts wield enormous power, it is implausible, as well as wrong in principle, to insist that the people develop an attitude of respectful indifference to how and by whom that power is exercised.”52

 

VI

The expanding role of Israel’s Supreme Court as the interpreter of the country’s constitutional principles demands a democratization of the judicial selection process. The systems in place in other vibrant democracies offer a variety of models that ensure the high qualifications, abilities and independence of those sitting on the bench while granting the power of selection to elected bodies. A variation on the American model, giving the elected prime minister the power to nominate candidates subject to public Knesset hearings and Knesset approval, would offer two separate democratic hurdles to ensure the accountability of the judiciary, while preventing either of the branches of government from acting alone and unchecked. An independent professional assessment committee could be created to make sure that judicial appointees meet a reasonable standard of professional ability, based on predetermined criteria. Continuing the practice of lifetime tenure would ensure the complete independence of justices who have cleared the foregoing hurdles.53 But whatever the specific model used to recast the judicial selection process in Israel, the institution of democratic screening in the selection process must be established if the Supreme Court is to serve as the arbiter of the nation’s constitutional principles, while retaining the confidence of the public.54



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