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Equally indicative was the court’s 1993 ruling that Prime Minister Yitzhak Rabin’s decision not to dismiss Interior Minister Aryeh Der’i, who had been indicted on corruption charges, was so unreasonable as to be illegal. While there is no denying the reasonability of the court’s position that a minister under indictment would badly damage the public’s faith in government and should therefore resign, it is absurd to suggest that in a society which claims to value the rights of the individual, the alternate position—that even a government minister deserves the presumption of innocence until proven guilty—is so unreasonable that no reasonable man could agree to it. Indeed, the degree to which the court’s position risked punishing the innocent was made clear three years later, when then-justice minister Ya’akov Ne’eman was indicted for perjury and forced to resign by the court’s ruling in the Der’i case. Ne’eman was completely cleared by a trial court nine months later—but by then someone else was firmly ensconced in his former post, and he was unable to return.77
That reasonable people can disagree over the reasonability of a decision is itself a major strike against employment of the standard. There is, however, a more vexing problem: Once the court becomes the final arbiter of all policy decisions great and small, people have essentially been deprived of any effective means with which to influence these decisions. If people disagree with a government’s judgment on what is reasonable—if they do not approve of the closure of certain streets on the Sabbath, for instance, or if they do not like the idea of cabinet ministers under indictment continuing to hold their posts—they are not without recourse. That is what all the tools of political activity are for: Lobbying, demonstrations and, ultimately, the ballot box. No similar venue, however, exists for those who are unhappy with High Court rulings. Precisely because justices are unelected and unrepresentative, and cannot be dismissed by a disgruntled public, the court has no place substituting its own judgment for that of the people on the question of the reasonability of government actions. Indeed, Hoter-Yishai’s criticism—“If you begin to examine the reasonableness and appropriateness of a decision, you’re essentially saying ‘I am in charge,’ because you are putting your judgment in place of [the government’s] judgment”—put it mildly. The court in such cases not only substitutes its judgment for that of the government, but deprives the people of its right to judge the government’s actions itself. And in such a situation, it becomes difficult to disagree with the editorialist in Yated Ne’eman who wrote that “the rule of the people has ended.”
This is not to say that every unpopular ruling by the court represents the overstepping of its bounds; an unpopular decision could be a very proper legal result. The objections to judicial activism have nothing to do with whether one likes the outcome of the court’s decisions; they have to do with the process by which those decisions were reached. For example, the court’s 1994 decision to force El Al to grant the same benefits to employees with homosexual partners that it gives to workers with unmarried live-in partners of the opposite sex raised a storm of protest from the religious community. Yet this decision was fully grounded in a law which forbids discrimination on account of sexual preference. It was a proper legal decision, and the only recourse for those who opposed it was to lobby the Knesset to change the law. This is not the case, however, when the Supreme Court bases its decisions on standards of “reasonability,” or on rights of its own divination. Not only do rulings of this sort entangle the judiciary in decisions which are rightly the province of other branches of government, but they effectively deprive the public at large of any say in the matter.
The problem with an activist court is its incompatibility with the empowerment of a people to chart its own destiny. To the extent that the judiciary protects a range of values that have received no explicit authorization from the legislature, and imposes its particular view of “reasonability” upon the ongoing functioning of elected officials, it competes against the people for the reins of sovereignty. Its success is therefore marked by a disenfranchisement, both real and perceived, of the people. Although it is true that all democracies place some limitation on the powers of a capricious majority, in the form of constitutional legislation, the unpleasant side effect of an activist court is that it can rapidly embue a minority of the population—or even, in some cases, a majority—with the belief that they have no way of influencing policy. Citizens who use all the available devices of politics—elections, lobbying and so on—to persuade a government to act one way or another will inevitably become frustrated when they discover that the fruits of their efforts have been carted away by an unelected judiciary on the basis of principles that appear to have been manufactured out of whole cloth. Since an unelected body can never represent the values of a people in the way that elected officials can, every imposition of court-conjured values upon government actions must take a toll on the public’s confidence in democratic institutions—especially in a culture as variegated and dynamic as Israel’s. In the long run, judicial activism shakes the public’s faith in democracy to its foundations.
VII
Despite the best efforts of Israel’s opinionmakers, the debate over judicial activism cannot remain dormant for long. So long as the court retains its activist stance, which it will certainly do for the duration of Aharon Barak’s presidency, it will continue to tread upon the sensibilities of a substantial portion of the Israeli public, and challenges such as Hoter-Yishai’s will be raised again and again.
The choice that Israel’s political and legal leadership face, then, is whether the discussion will be encouraged, as befits a democracy, or whether an inflexible view of the court’s purpose, combined with a disdain for truly free expression, will continue to thwart efforts to engage the debate. If Israel goes down the latter route, it will find the rule of the people undermined by a judiciary bent on foisting its particular vision of government on an unwilling populace. Far worse, however, will be the increased alienation of those segments of Israeli society, a wide cross-section hardly limited to Yated Ne’eman’s readership, who find themselves at odds with the court’s judgment, yet face moral and legal censure whenever they express their views.
Israel has reached the stage where it can ill afford to stifle the judicial activism debate. Yet last year, Israel’s leading public figures demonstrated an eagerness to do just that. But the topic has at long last been broached, and the nation now finds itself at a crossroads, compelled to decide whether the values underlying the laws of the land will continue to be decided by a small group of unelected judges, or whether such vital questions will be returned to the public forum. Few decisions will be more fateful in determining the shape of the country over the coming decades.
Evelyn Gordon is Senior Editor of Azure.
Notes
1. The Jerusalem Post, August 27, 1996.
2. J.G. Randall and David Donald, The Civil War and Reconstruction (Boston: D.C. Heath and Company, 1961), p. 114.
3. Inaugural Addresses of the Presidents of the United States (Washington, DC: United States Government Printing Office, 1989), p. 139.
4. Arthur Link, American Epoch (New York: Alfred A. Knopf, 1967), p. 337.
5. Roe v. Wade, quoted in Robert Bork, The Tempting of America (New York: The Free Press, 1990), p. 113.
6. The New York Times, January 5, 1997. In June 1997, in a major reversal from decades of activism, the court accepted these appeals, ruling 9-0 that physician-assisted suicide was not a constitutionally protected right. Chief Justice William Rehnquist, writing for himself and three other justices in one of several concurring opinions, wrote: “Throughout the nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide.... Our holding permits this debate to continue, as it should in a democratic society.” Elsewhere in the opinion, he explained this statement: “By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action.” The New York Times, June 29, 1997.
7. C. Neal Tate and Torbjorn Vallinder, eds., The Global Expansion of Judicial Power (New York: New York University Press, 1995), pp. 3-4.
8. Israel’s Supreme Court serves two distinct functions. First, it serves as the nation’s highest civil and criminal appellate court. Second, it serves as a court of first (and last) instance for anyone with a grievance against the government. In this capacity, it is referred to as the High Court of Justice. According to the Basic Law: The Judiciary, the High Court of Justice is authorized to hear any case in which “it sees a need to give assistance for the sake of justice, and which is not in the jurisdiction of any other court.”
9. The Movement for Quality Government in Israel v. The Government of Israel (HCJ 4319/93), in Decisions of the Israel Supreme Court, volume 47, section 5 (1993), p. 421.
10. See, for instance, Mordechai Kremnitzer’s comments in The Jerusalem Post, July 26, 1993.
11. Though the editorials were motivated largely by what the haredim perceived as the anti-Jewish nature of Barak’s decisions, the texts focused primarily on the “democratic” side of the problem.
12. The statement is referring to two decisions: A 1993 ruling ordering the government to remove then-interior minister Aryeh Der’i from his post because of an indictment against him, and an earlier decision banning the Kach party from running in the elections on the grounds that it was racist.
13. Yated Ne’eman, August 25, 1996.
14. Kol Hashavua, August 22, 1996.
15. Yedi’ot Aharonot, August 28, 1996. Meretz is one of Israel’s farthest-left parties, perceived by substantial portions of the electorate to be hostile to Jewish values. The use of the party’s name is also a play on the Hebrew word meretz, “energy,” so the phrase means that Barak is working energetically as well.
16. Ha’aretz, August 28, 1996.
17. Barak received a death threat on his answering machine shortly after the editorials appeared. Yedi’ot Aharonot, August 28, 1996. A few days later—after the editorials and the reactions to them had already become front-page news in all the country’s newspapers—the police received two anonymous death threats against Barak from pay phones located in haredi neighborhoods. Ha’aretz, Yedi’ot Aharonot, August 29, 1996.
The ostensibly bizarre accusation that the existence of death threats retroactively turned the criticism into incitement stemmed in part from the widely-held misconception in the Israeli public that the Rabin assassination was the product of months of harsh public criticism by Rabin’s political opponents—despite the fact that Attorney-General Michael Ben-Yair concluded after investigating the assassination that Rabin’s murderer, Yigal Amir, had not been influenced by right-wing incitement. See Ha’aretz and The Jerusalem Post, December 13, 1995.
18. Ha’aretz, August 27, 1996.
19. Ha’aretz, August 29, 1996. Under Israeli law, the interior minister can shut down any newspaper indefinitely and without warning if, in his opinion, it has published something which has endangered the peace. He can also revoke a newspaper’s operating license “as he sees fit, without giving any reason for his decision.” These powers are rarely invoked, however.
20. Ha’aretz, August 27, 1996.
21. Ha’aretz, August 29, 1996.
22. Yedi’ot Aharonot, August 27, 1996, and Ha’aretz, August 28, 1996. Liba’i’s claim was made jointly with Knesset Law Committee chairman Sha’ul Yahalom (National Religious Party).
23. The Jerusalem Post, August 27, 1996.
24. Ha’aretz, August 28, 1996.
25. Yedi’ot Aharonot, August 27, 1996.
26. The Jerusalem Post, August 28, 1996.
27. Ha’aretz, August 30, 1996.
28. Ha’aretz, August 27, 1996.
29. Ha’aretz, August 28, 1996.
30. The Jerusalem Post, August 27, 1996.
31. Yedi’ot Aharonot, August 27, 1996.
32. Ha’aretz, August 30, 1996.
33. The Jerusalem Post, September 1, 1996.
34. Ha’aretz, October 15, 1996.
35. The Jerusalem Post, October 15, 1996.
36. Hoter-Yishai did not actually mention Barak by either name or title anyplace in the full-page interview. The editors of Yated Ne’eman, however, unfairly stated in their introduction to the piece that Hoter-Yishai had attacked Barak in the interview, and they also put in bracketed interpolations at certain places indicating that particular statements referred to Barak. As a result, most of the news reports on the interview treated it as a personal attack on Barak, and so in turn did most of the public figures who responded to the interview. Two days after the interview was published, Hoter-Yishai publicly said that while he did not retract his remarks, it had been a mistake to make them in Yated Ne’eman.
37. Yated Ne’eman, November 26, 1996. There are only two legal methods for removing a Supreme Court justice from the bench: Either through the ruling of the same nine-member panel that appoints the judges—only four of whom are cabinet or Knesset members (i.e., “elected” officials who are themselves elected as members of parties, not through direct elections), while the other five are justices or Bar Association representatives—or through the decision of a special disciplinary committee of whom a majority must be Supreme Court justices themselves. In short, justices are neither selected nor removed via any serious democratic test. Compare this with the United States, where Supreme Court justices must overcome two fully democratic hurdles, the president’s nomination and the Senate’s approval, in order to attain their position.
38. Yated Ne’eman, November 26, 1996.
39. Yated Ne’eman, November 29, 1996.
40. Ha’aretz, November 28, 1996. Cohen asked the police to open the criminal investigation, while Pines’ request was directed to the attorney-general.
41. Ha’aretz, November 28, 1996.
42. Ha’aretz, November 29, 1996. The case had been sitting on the state attorney’s desk for a few years already, and it is not clear whether the timing of the indictment was purely coincidental or whether it was prompted by the interview. In the interview, Hoter-Yishai had accused Attorney-General Michael Ben-Yair of “digging” for something against him; Ben-Yair later countered that Hoter-Yishai had been trying to discredit his office’s motives in advance via the interview.
43. Ha’aretz, November 29, 1996.
44. Ha’aretz, November 29, 1996.
45. The Jerusalem Post, November 28, 1996.
46. Ha’aretz, March 3, 1997.
47. Ha’aretz, March 13, 1997. The petition also cited Hoter-Yishai’s tax evasion indictment. The Bar’s executive committee rejected a motion by some of its members to oust Hoter-Yishai.
48. Compassion in Dying v. Washington, quoted in Russell Hittinger, “A Crisis of Legitimacy” in First Things, November 1996, p. 26. This statement was originally made by the Supreme Court in Planned Parenthood v. Casey (1992), but has been adopted in many subsequent decisions.
49. Richard John Neuhaus, “The End of Democracy? The Judicial Usurpation of Politics,” editorial in First Things, November 1996, p. 18.
50. Neuhaus, “The End of Democracy?” p. 19.
51. Robert Bork, “Our Judicial Oligarchy” in First Things, November 1996, p. 23.
52. Hadley Arkes, “Culture Corrupted,” in First Things, November 1996, p. 30.
53. Bork, “Our Judicial Oligarchy,” p. 23.
54. Hittinger, “A Crisis of Legitimacy,” p. 29.
55. Norman Podhoretz, quoted in David Brooks, “The Right’s Anti-American Tempation,” in The Weekly Standard, November 11, 1996, p. 25. In his introduction to the symposium, Editor-in-Chief Richard John Neuhaus said that “America is not and, please God, will never become Nazi Germany, but it is only blind hubris that denies it can happen and, in peculiarly American ways, may be happening here.” Neuhaus, “The End of Democracy?” p. 19.
56. Personal communication with Richard John Neuhaus, editor-in-chief of First Things.
57. Letter in First Things, January 1997, p. 2.
58. Robert L. Bartley in “On the Future of Conservatism: A Symposium,” in Commentary, February 1997, p. 16.
59. “It’s Time to Take On the Judges,” editorial in The Weekly Standard, December 16, 1996, pp. 9-10.
60. Certain countries such as Canada also limit “hate speech” and other types of expression that are viewed as antithetical to the norms needed to underpin democratic societies.
61. Yated Ne’eman, August 25, 1996.
62. The Jerusalem Post, September 6, 1996.
63. Ha’aretz, September 1, 1996.
64. Ha’aretz, September 4, 1996.
65. Marbury v. Madison, quoted in Bork, Tempting, p. 24. The existence of written limits was also the basis for the Israeli Supreme Court’s assertion, ever since it was established, that it had the right to examine the legality of government actions in light of Knesset legislation: The Knesset passed laws for the purpose of having them obeyed, and while the Knesset might repeal these laws as it pleased, the government had no right to violate them as long as they had not been repealed.
66. Quoted in Bork, Tempting of America, p. 20. Iredell was responding to the assertion of Justice Samuel Chase that the court should be able to overturn legislative acts contrary to “the first great principles of the social compact.” Bork, Tempting of America, p. 19.
67. The Jerusalem Post, January 10, 1997.
68. Akiva Nof v. Ministry of Defense (HCJ 205/94), unpublished.
69. Aharon Barak, quoted in The Jerusalem Post, July 14, 1996.
70. Barak, quoted in The Jerusalem Post, August 16, 1996.
71. Justice Mishael Cheshin, quoted in The Jerusalem Post, August 16, 1996.
72. The Jerusalem Post, July 14 and August 16, 1996.
73. At the court’s urging, a second public commission was set up to study the issue by the government, and this commission also recommended closing the street. However, some of the secular commission members said the recommendations included an implicit promise of a quid pro quo to the secular community, in the form of instituting public taxi service in the capital on the Sabbath, though no such deal was included in the written recommendations. These members later withdrew their signatures when the government rejected this interpretation of the document.
74. Shmuel Wickselbaum v. The Minister of Defense (Rehearing HCJ 3299/93), in Decisions of the Israel Supreme Court, volume 49, section 2 (1995), p. 210.
75. Ha’aretz, September 10, 1993.
76. In a similar case in 1989, the court overturned the attorney-general’s decision not to prosecute the editor-in-chief of Yedi’ot Aharonot and one of its reporters for alleged violations of sub judice laws. Again, after a conviction was obtained in a trial court, the accused were acquitted by the Tel Aviv District Court on appeal. Looking back, it seems the attorney-general’s inclination not to indict was in fact more reasonable than that of the High Court. Ha’aretz, July 3, 1997.
77. It is only by chance that Ne’eman’s political career was not completely ruined: Shortly after Ne’eman’s acquittal, Finance Minister Dan Meridor resigned his post, and Prime Minister Binyamin Netanyahu offered Ne’eman the vacant ministry.
