Is It Legitimate to Criticize the Supreme Court?

By Evelyn Gordon

The Jewish State could use a debate on judicial activism right now. Why there isn’t one.

In August 1996, two haredi newspapers published editorials highly critical of the Israeli Supreme Court and its president Aharon Barak, assailing the court’s increased involvement in matters outside its traditional purview. The editorials triggered a torrent of denunciations from Israel’s political, legal and journalistic establishments: Complaints were filed with the police against the papers and their editors charging them with sedition, incitement and defamation of the court; there were calls in some quarters for the papers’ closure, while prominent politicians from almost every party vied to produce the most vicious castigation of the crime. Then-finance minister Dan Meridor, in a typical example, branded the editorials “a severe incitement campaign that is unprecedented in the state’s history, aimed at damaging not only senior justices but at undermining the basic values of society and the public’s confidence in the justice system.”1 
After a brief lull, the issue resurfaced in late November, when an interview appeared in which Dror Hoter-Yishai, chairman of the Israel Bar Association, blasted the court for its intrusion into matters that were properly the province of the Knesset. Again, across-the-board denunciations were accompanied by police complaints and demands that Hoter-Yishai be removed from his chairmanship of the Bar and his position on the government committee that appoints judges. The Bar’s Ethics Committee recommended that he face disciplinary charges on account of his remarks.
The Israeli public is probably unique in the sanctity it affords its judiciary, and in its bilious intolerance to attacks on the court. Yet it is not for disrespect of the judiciary that many other democracies, most notably the United States, have assiduously protected debate over judicial activism. The question of the judiciary’s proper role in explicating the basic values and principles that shape a nation is of vital importance to any democracy—especially one such as Israel, whose governmental structure is still somewhat in flux, and whose Supreme Court has over the past two decades dramatically increased its involvement in public life. By suppressing debate on one of the most vexing questions of democratic theory today, the political, legal and journalistic communities managed to bilk the Israeli public of one of its founding democratic privileges—the ability to define the role and powers of the institutions of government.
After appearing on intellectual and political battlefields around the world for decades, the debate over judicial activism has finally hit Israel. Yet if the events of last year are any indicator, the Jewish state has a long way to go before it can celebrate the establishment of a stable, mature democracy in the Holy Land.

While there is a broad consensus in western democracies about the legitimacy of judicial review—the right of courts to overturn laws that expressly violate a written constitution, or to annul government decisions that contradict laws—there is no such agreement on whether courts should be allowed to overturn laws or government decisions that violate principles whose protection under the law is only implicit.
In most of the western world, the debate over court activism has been held not only in scholarly journals of jurisprudence, but in the political arena as well. In the United States, for instance, activist Supreme Courts have been the source of controversy for over a century. In 1857, the famous Dred Scott decision prohibiting Congress from outlawing slavery in the western territories became a major political issue that featured prominently in the 1860 presidential elections. Republicans and abolitionists denounced the decision as “the greatest crime in the judicial annals of the Republic” and “entitled to just so much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room.”2 President Abraham Lincoln blasted the court’s activism in his first inaugural address in 1861:
[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government to that eminent tribunal.3 
Similarly, a series of rulings overturning labor laws in the first quarter of the twentieth century, such as Lochner v. New York—a 1905 decision that struck down a New York law setting maximum working hours for bakers—led to widespread public criticism of the judicial system, and made the Supreme Court’s activism a cause celèbre for the American Progressive movement, which launched a major campaign whose assault on the court’s image continued unabated until after the decisions were overturned in the late 1930s.4
For the past quarter-century, judicial activism in the U.S. has kept a hold on the public eye in large part because of Roe v. Wade, the controversial 1973 Supreme Court ruling which granted women the constitutional right to an abortion. Many Americans were outraged not only by the substance of the decision, but by what they considered its legal illegitimacy: The court had countermanded the will of the people, as expressed in laws in almost every American state regulating or banning abortion, all on the strength of a “right to privacy” which the court itself admitted that the “Constitution does not explicitly mention.”5 Since then, the controversy has continued largely due to a series of subsequent decisions dealing with anti-abortionists’ efforts to repeal the ruling or limit its effects, and abortion advocates’ attempts to extend its sway. More recently, the debate over judicial involvement in value-laden issues has been fueled by two federal court rulings that, by extending Roe’s doctrine of the right to privacy into a broad right of personal autonomy, forbade states to illegalize physician-assisted suicide. “The sublime arrogance of these judicial pronouncements highlights the danger of allowing courts to set social policy, in defiance of legislatures and referenda, on the basis of their own (often ill-informed) philosophical intuitions,” wrote Sen. Orrin Hatch, chairman of the Senate Judiciary Committee, Rep. Henry Hyde, chairman of the House Judiciary Committee, and Rep. Charles Canady, chairman of the House Subcommittee on the Constitution, in one of sixty friend-of-the-court briefs filed in an appeal of these decisions to the Supreme Court last year.6
Elsewhere in the democratic world, judicial activism—which at one time was considered a uniquely American phenomenon—has increasingly come to characterize the behavior of high-level courts. As one scholar has pointed out,
[J]udges in the United Kingdom are increasingly involved in reviewing the discretionary acts of the administrators of a wide variety of government programs, contrary to their tradition.... French and German legislators and executives now routinely alter desired policies in response to or in anticipation of the pronouncements of constitutional courts, and... member states of the European Community are beginning to alter domestic policies as a result of rulings of the Court of the European Community.... In Russia the legislative-executive confrontation over the constitutional distribution of authority and Boris Yeltsin’s economic policies regularly wended its way in and out of the Constitutional Court....7 
Not surprisingly, the expansion of the role of the judiciary in many of these countries has evoked concomitant concern.
In Israel, however, judicial activism got a relatively late start, and consequently the public argument over its merits is likewise of recent vintage. There are three principal developments—two driven by the court’s own evolving conception of its role and the third a function of Knesset action—which have combined to make judicial activism a prominent issue in the last several years.
The first of these developments was the rapid erosion of two self-imposed procedural safeguards which had previously prevented the court from hearing many controversial cases: Narrow definitions of standing and justiciability. Standing—the right of a party to petition the High Court of Justice8 against a given government decision—was for most of the court’s history granted only to people with a direct, personal interest in the outcome of a case; as a result, the public’s ability to challenge government decisions was in many cases limited. Justiciability—the determination of whether a particular question is capable of being settled by court action—was also originally defined narrowly, such that wide areas of government policy were simply considered beyond the court’s purview.

From the

Rammstein’s RageHeavy metal and the return of the Teutonic spirit.
The Haredim: A DefenseHow scholars have misunderstood the ultra-Orthodox.
Far Away, So CloseHow the commandments bridge the unbridgeable gap between God and man.
Israel and the Palestinians: A New StrategyThe former IDF chief of staff proposes a different approach to dealing with an old conflict.
Lost Generation

All Rights Reserved (c) Shalem Press 2024