Bringing Israel’s Supreme Court into the 21st Century

The latest battle in Israel’s ongoing struggle to define itself is being fought over the way Supreme Court justices are selected. The 15 justices are appointed by a judicial selection committee of 9 members:

• The Minister of Justice, who chairs the committee,
• One additional cabinet minister, chosen by the cabinet (i.e., the government),
• Two Knesset members, one from the coalition and one from the opposition,
• Two members of the Bar Association, selected by the association, and
• Three current justices of the Supreme Court, including the President of the Court (Chief Justice).

Presently, a super-majority of 7 committee members is required to approve a candidate. This gives the existing court justices a veto power, and – since the Court and the Bar Association lean leftward – gives left-of-center candidates a significant advantage. It also means that the Court is self-selecting and unaccountable.

The Israeli Supreme Court has far more power than the US Supreme Court. Rules about justiciability (what matters are in the purview of the Court) and standing (who can petition the court) are far looser than in other democracies; any citizen can petition the Court about any action of the government. It can throw out a law passed by the Knesset even if there’s no litigation about it. Or it can let it be known before a bill is passed that it will not approve it in its present form, and thereby force changes.

The Court greatly expanded its role and its power as a result of the activities of Aharon Barak, who was a justice from 1978-95, and its President from 1995-2006. The American jurist Richard Posner explains just how much power Barak placed in the hands of the Court (his hands!) in a review of one of Barak’s books. It is eye-opening.

Many Israelis feel that that it is unacceptable that in a democratic country so much power is held by an institution that is almost entirely not accountable to the people or its elected representatives. On the other hand, there is great respect for the Court and for the importance of having an independent judiciary and a rule of law.

The present Minister of Justice, Ayelet Shaked, has submitted a bill to the Knesset to change the rules so that only a simple majority of 5 members will be required. This would eliminate the veto power held by the current justices.

I used the expressions ‘right’ and ‘left’ above, but that isn’t the whole story. The disagreement is about much more than the desire of politicians to have a court that will take their side about issues like the development of Israel’s gas reserves, drafting Haredim, or the settlement enterprise. It is about the most basic principle of all: what kind of state will we have?  Most will say that it is a Jewish and democratic state, but ideas of what this means in practice diverge widely.

Israel doesn’t have a constitution; instead it has a number of Basic Laws that partially define the nature of the state. There has been a great deal of discussion about what constitutes the Jewish aspect of the state, and recently there was a controversial attempt to introduce a Basic Law that would specify its precise meaning. The Supreme Court was a silent partner in all discussions about the law, because it was clear to all parties that the court would immediately test it – and probably find any non-vacuous version inconsistent with the existing Basic Laws. Various versions of the law were discussed, but so far nothing has been passed. If such a law does pass, chances are that it will be less ambitious than the earlier versions.

Is it an appropriate role for a court to judge the state’s self-definition? Or is this something that should be left to the representatives of the people?

The Amona settlement decision is another situation in which the ideological bent of the Court may have played a role. The settlement of Amona was declared to have encroached on land which was owned by Palestinians, and ordered by a court (and the order approved by the Supreme Court) to be demolished. The Knesset, looking for a compromise, proposed that the Palestinians be compensated and the buildings allowed to remain. But the Attorney General indicated that the Court would find such a solution “unconstitutional.”

The case was very complicated, as are all land ownership issues in Israel. The settlement had been there for several years and the Palestinians had not worked the land in question. The case was brought by a left-wing, foreign-funded NGO (“Yesh Din”) on their behalf. Could there really be no option other than destroying the settlement?

Something is backwards here. In a democracy, the power to govern ultimately resides with the people. In a modern state they express their will through their elected representatives. It is important that the rights of minorities be respected, but it is the majority that decides. But in Israel, the Supreme Court is not selected or even confirmed by the representatives of the people. There are no checks and balances – there is no way the Knesset can appeal or override a court decision. It is both totally independent and all-powerful.

And unfortunately, it leans in one direction. It values a European vision of democracy, universalism over nationalism, a “state of its citizens” over the more conservative, Zionist idea of a state that belongs to the Jewish people. When the Court believes that Zionism and minority rights conflict, it chooses minority rights.

Today there is a struggle between the remnants of the secular, Ashkenazi, universalist, dovish, elite that once ran the country, and the more religious, more Mizrachi, nationalist and hawkish population that is now the majority, and which elects right-wing candidates to the Knesset. It is being played out in the arena of arts and culture, where Miri Regev is challenging the old establishment; it is also happening in the academic world, where Naftali Bennett as Minister of Education is trying to rein in the excesses of the professorate. In the last few days we’ve seen yet another cultural struggle, this one over the new Public Broadcasting Corporation, which Likud politicians say has been co-opted by the left-wing journalists that overwhelmingly dominate the media.

All of these elites have maintained their control of these realms because they are self-selecting. They complain about “political interference” and “undemocratic” actions by the ministers that are trying to change them, but in reality it is the politics of today’s Israel that is trying to “interfere” with institutions that are run according to the politics of the 1960s.

The Supreme Court is the most important and powerful institution in the state that is still firmly in the hands of the old left-wing elite. Even if you think it is a benevolent despot, it is still a despot. Shaked’s bill to end its incestuous means of reproduction is a good start to bringing it in line with the rest of the nation.