The Tide Turns

The Tide Turns

Dorit Beinisch, the current Court President of the Israeli Supreme Court, is proving to be no Aharon Barak in more ways than one. For starters, she has not succeeded in stifling all public debate over the overreaching of Israel's Supreme Court or to convince gullible journalists that she and the Court alone stands between Israel and a fascist regime.

Since the appointment of Tel Aviv University law professor Daniel Friedmann as Justice Minister, Beinisch has found herself embroiled in ongoing and increasingly abrasive public disputes with the justice minister. The public nature of those confrontations provoked Barak and his predecessor as court president, Justice Meir Shamgar, to seek a private meeting with Friedmann last week, in an attempt to lower the rhetoric.

Worse, from the point of view of defenders of Israel's legal oligarchy, are the increasing number of skirmishes that are no longer going their way. The Knesset, at Friedmann's initiative, recently passed a bill that limits the term of the Court President to seven years. At one level, the bill was largely symbolic. It specifically excluded the current court president – Beinsich – from its provisions and did nothing more than bring the practice of the Supreme Court in conformity with all other lower courts in Israel. Yet it sent a clear message from the Knesset to the Supreme Court that the dominance of the court president that existed under Barak will no longer be tolerated.

Though Friedmann did not gain everything he wanted in his efforts to claim a much larger role for the justice minister – and a smaller role for the justices of the Supreme Court – in the selection of the state prosecutor and the next attorney-general, he did gain a number of significant concessions from the cabinet over the issue.

Barak's word was law and none dared question his rulings. Not so Beinisch's. When leading members of the Winograd Commission, including the Court's leading academic nemesis, Ruth Gavison, threatened to resign rather than obey a Court order that it immediately publish the testimony it had received, Beinisch blinked and pushed back the date of publication. Even so weak a prime minister as Ehud Olmert did not hesitate to label the Court's order that it reinforce all Sderot schools to make them Kassam-proof absurd and make noises about refusing to comply.

These dramatic shifts in the legal landscape have not been taken lying down by proponents of the old legal order. Despite the fact that Friedmann comes from academia, and is an Israel Prize laureate in law, a group of law professors have begun circulating a petition criticizing his proposals for revamping the judicial selection process, which today is dominated by the three sitting members of the Supreme Court on the judicial selection panel. Two of the prime movers behind the petition are law professors whom Beinisch has boosted as candidates for the Supreme Court.

BEINISCH'S INABILITY TO RETAIN the vast power that Barak amassed as court president is, in part, a function her lack of comparable reputation as a legal superstar, as well as his immense personal charm. But even had Barak remained in office the tide would have begun to turn from uncritical acceptance of the power wielded by the Israeli Supreme Court – a power without parallel in any country in the world.

One sign of that reevaluation of Barak’s legacy was the recent publication in the liberal New Republic of a highly critical review of Barak's A Judge in a Democracy by Richard Posner, himself a dazzling polymath, who serves on the Seventh Circuit Court of Appeals and teaches at the University of Chicago Law School. Posner affirms the judgment of Robert Bork, reviewing the same book, that Barak "establishes a world record for judicial hubris." (Bork's review appeared in Azure, and reiterates many of the criticisms he previously advanced in Coercing Virtue: The Worldwide Rule of Judges, which features a long chapter on the Israeli Supreme Court.)

Posner's essential point, which echoes that made by this author a decade ago in a Jewish Observer review of Barak's earlier work Judicial Review, is that Barak is clueless about the meaning of democracy. Posner makes clear that Barak's judicial philosophy belongs to an alternate parallel universe to that inhabited by American judges.

Not for Barak, the definition offered by Posner of political democracy as "a system of government in which the key officials stand for election at relatively short intervals and are thus accountable to the citizenry." Barak terms that aspect of democracy "formal democracy," one might say mere formal democracy." Juxtaposed to formal democracy, in Barak's view, is "substantive democracy," which includes all sorts of "human rights" and an independent judiciary to enforce those rights.

The panoply of those "human rights" is by no means limited to those that are implied by Posner's definition of "political democracy" – e.g., freedom of political speech and thought, freedom of the press, the right to petition the government. Rather it is as wide as the great blue sea. And it is the judge's duty to advance those rights. When Barak writes that the judge must interpret every statute in light of its ultimate purpose, which is the "realization of the fundamental values of democracy," he means the "human rights" encompassed in "substantive democracy." That, in turn, basically comes down to the judge's own sense of justice. Indeed Barak describes "justice" as the lodestar of his work as a judge.

Clearly this definition of democracy primarily in terms of rights, rather than as a system of majority role, gives the judge almost unfettered discretion. Barak's Orwellian definition of democracy allows him to avoid confronting the inherent tension between representative democracy and judicial review of statutes and the actions of the executive branch.

Indeed Barak celebrates the fact that around the world "since World War II the importance of the judiciary relative to the other branches of the state has increased." Barak terms this process the "constitutionalization of democratic politics," when, in fact, it is the end of democratic politics.

Though Barak observes that no branch of government "should judge itself," these strictures do not apply to the judiciary. For him "separation of powers," means not the system of checks and balances envisioned by the Federalist Papers and embodied in the United Stastes Constitution, but rather an entirely different principle that the executive and legislative branches should have no control over the doings of the judicial branch. That no doubt explains his passionate defense of the anomalous judicial selection process in Israel, in which the Supreme Court justices effectively select their own successors – a process that not only ensures that a particular judicial philosophy can perpetuate itself forever, but that the Supreme Court President is able to control the judiciary at all levels by virtue of his control over judicial selection.

Posner notes Barak's paucity of reliance on traditional legal materials – most importantly statutes enacted by the legislature. Any government action that the Court finds to be unreasonable is ipso facto, illegal, according to Barak. In Barak's view, it is the judge's job not to interpret statutes in light of the legislative intent, but to give them new meaning in each generation, according to the needs of the society. And who determines those needs? The judge.

Relying on the broad abstract terminology of the Basic Laws, Barak claims the power to continually inject new fundamental principles or rights into the legal system. When the judge does so, he gives effect to the people's most cherished norms and standards. If that is so, Bork asks trenchantly, why didn't the people simply enact those norms into statutes? The answer is that "the people" that count in Barak's ideal universe, are not the same as the citizens of the country, but are rather limited to the "enlightened members of the society in whose mists the judge dwells "– academics, lawyers, judges, ultimately Barak himself.

When their enlightened values have been imposed by the judge, then "the general will has been reached." Apparently it has escaped Barak that Rousseau's concept of "the general will" provided the later justification for totalitarian governments of the Left and Right. He might not even note the irony of the former USSR styling itself a republic.

In the Federalist Papers, Alexander Hamilton famously described the judiciary as "the least dangerous branch," because it lacks the power of the purse and sword. Barak, however, as Judge Bork notes, has claimed both powers for the Israeli Supreme Court. As a theoretical matter, he has written, even IDF mobilization orders are subject to judicial review. In overruling security considerations in the drawing of the line of the security fence and expressing its willingness to overrule a statute barring Palestinian spouses of Israeli citizens from an automatic grant of residency in Israel, the Israeli Supreme Court has claimed the right to reevaluate security determinations of the IDF and the Knesset. In claiming that welfare cuts are subject to judicial review, Barak effectively made the Court master of the purse as well.

In addition, there are apparently no limits on "the rights" which judges, in Barak's view, can "import" into the legal system. When the Court struck down a statute authorizing municipalities to enact ordinances banning the sale of pork, it effectively recognized a right to be able to easily purchase pork products for consumption.

It is truly cause for rejoicing that the criticisms of Barak and his legacy are no longer confined to a handful of legal scholars – e.g., Professor Ruth Gavison and former Court President Moshe Landau -- and the religious public, but have now reached as far as liberal journals in America. It is an even greater cause for rejoicing that Barak's successor lacks his abilities and manipulative skills, and, as a consequence the battle has begun to turn on the ground as well.