The real issue
by Jonathan Rosenblum
February 12, 1999
One of the hallmarks of wisdom, say our sages, is to foresee the consequences of one's actions. By that standard, Sunday's mass prayer demonstration by a broad cross-section of the religious public will not garner high marks.
Rather than focusing attention on the unparalleled power of the Supreme Court, it has once again made the issue religious 'incitement.' Yet the threats of prosecution for incitement by Attorney-General Elyakim Rubinstein and State Attorney Edna Arbel (both of whom have their eye on seats on the court) reveal more about the immaturity of Israeli democracy than do the intemperate utterances of one or two rabbis.
Evelyn Gordon describes the equally outraged reaction to previous religious criticism of the court in a recent edition of Azure: 'The volume and the rancor of the public's response exceeded the bounds not only of normative public discourse, but even of Israel's own vitriolic traditions. In the name of democracy, moral and legal censure was advocated to crush debate on an issue essential to the maintenance of a democratic society [i.e. the allocation of power between the various branches of government].'
Obsession with the haredim obscures how unexceptional are heated criticisms of courts in any thriving democracy. Equally sharp, albeit more sophisticated, critiques of Aharon Barak's judicial activism can be heard every day in our law schools and among the professional bar, and my law school professors spoke and wrote no less contemptuously of the US Supreme Court.
Compare the reaction in America when Robert Bork, former Yale law professor and chief judge of the Washington D.C. Circuit Court, called the Supreme Court 'outlaws' and 'robed masters' against whose ukases the people have no recourse, and another law professor advocated massive civil disobedience in First Things. Two resignations from the magazine's editorial board and a large number of angry letters to the editor, that's all.
When Beersheba Magistrate's Court Judge Oded Alyagon likened haredim to 'huge lice' in the presence of Aharon Barak, and the latter subsequently praised his speech, Barak did more to undermine the legitimacy of the court and reveal its lack of neutrality than could any religious criticism. And when President Ezer Weizman acts as the Center Party's campaign manager, he demonstrates his utter contempt for the office he holds. But the press largely ignores these far more damaging threats to society's 'fundamental institutions.'
Civics lessons are only for the religious.
IF BARAK is now subjected to the type of vitriol regularly directed at our prime minister - 'proto-fascist,' 'petty crook' - he has himself to blame. Under his leadership, the Supreme Court has increasingly become a super-legislature, claiming authority to pass judgment on every decision of the other branches of government. No other court in the world, according to the Hebrew University's Ruth Gavison, has taken such responsibility for solving all society's problems. Having usurped the policy-making functions traditionally reserved for the legislative and executive branches, Barak cannot claim foul if he is now criticized like any other politician.
Indeed Barak has long been recognized as the country's most skillful politician. He tirelessly curries favor with the media, lobbies MKs for his court reorganization plan, designed to give the court even more influence on the 'big' societal issues, and has managed to place Justice Minister Tzahi Hanegbi under his thumb by offering him a patina of respectability.
No other Supreme Court president in the world wields such power.
Barak handpicks the judges for every case. And he and his subordinates control, to a very large extent, the selection of their own successors. One would be hard- pressed to name another democracy in which the legislature and executive have so little role in the selection of judges.
The result is a court largely devoid of intellectual debate and guaranteed to remain so long into the future. It is also unrepresentative in the extreme. There is but one token religious justice out of 15 (as opposed to 20 percent of the Knesset) and not one Sephardi justice. In an 'off- the-record' meeting with the press in late 1997, Barak opined that in the early days of the state, standards had been diluted to include a Sephardi justice. (Ori Orr must envy Barak's sway over the press, which largely ignored the remark.)
Even within the legal community, the justices represent an extremely narrow segment, many of them coming straight from the groves of academia or the State Attorney's Office, with no prior experience in private practice or on the bench.
The danger resulting from the lack of any institutional checks on the court is exacerbated as the court moves increasingly in the direction of becoming an oligarchy of Platonic guardians. Again and again, the court finds itself ruling on issues in which there are no traditional legal materials - statutes, precedents - to guide it, and which it is ill-equipped to resolve.
Barak has frequently reiterated his philosophy that there is no area of life devoid of law, and thus virtually no issue which courts should not decide. But when everything is law, nothing is law. Or as former justice Menahem Elon put it, 'We have the rule of the judge, not the rule of the law.'
Barak himself cheerily admits that many of the most contentious issues will be resolved by judges on the basis of their own values and criteria of reasonability. What should those values be? Here Barak is unabashedly elitist: 'the views of the enlightened population,' those 'whose values are universal [and] progressive.' Basically, the self-description of the average Ha'aretz reader.
What Barak has yet to explain is why we, as a democratic society, should prefer the value judgments of an unrepresentative and unaccountable court on the major social issues of the day to those of the elected legislature.
That is the real issue.
Related Topics: Israeli Supreme Court
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