Court run amok

When my favorite law school professor wanted to express his contempt for judicial opinions devoid of legal reasoning he would conjure up a picture of a corpulent mideastern potentate seated under a palm tree dispensing justice according to his own lights. Kadi justice he called it. And Kadi justice is what we have in Israel today.

Our Supreme Court no longer feels the need to justify its usurpation of the decision-making authority of the legislative and executive branches or to offer any rational for its decisions other than 'We say so." A case in point is its recent order that Educational TV air a show in which four teenage homosexuals discuss their sexual preferences.

Minister of Education Zevulun Hammer, relying on a panel of experts, had determined that the show should be made more balanced before it was shown on Educational TV. But a three-judge panel of the Supreme Court, including President Aharon Barak, simply substituted its judgment for that of Hammer and ordered the program broadcast.

The entirety of Justice Kedmi's brief opinion for the unanimous panel can be summarized in his glib observation that teenage homosexuality exists and hiding our head in the sand will not make it go away. Without a shred of evidence, the court assumed that a positive portrayal of homosexuality could have no impact on its incidence. (Not that the justices would have cared if it did.) Thus even as pop psychologists, the justices showed themselves to be inept.

Even a cursory glance at societies from ancient Athens, where homosexuality was ubiquitous among upper-class males, to the Orthodox Jewish world, in which, according to the Kinsey Report, it is almost unknown, shows how socially conditioned homosexuality is.

Apart from Israel's Supreme Court under Justice Barak, most judges in democratic countries are sensitive to the inherent tension between democratic government and judicial review by unelected justices. Thus in reviewing administrative decisions of elected officials or administrative agencies, judges are careful to make clear that they are not substituting their own ab initio judgment for that of the official upon whom responsibility for making the decision is conferred.

A court reviewing an administrative law decision typically begins with a lengthy description of the statutory grant of authority to the decision-maker: the factors he is directed to consider, the procedures he is to follow, the degree of discretion given him. Next the judge will turn to the scope of judicial review and the standard to be applied by the court in evaluating the administrative decision. Usually such decisions will be reversed only if they are arbitrary or capricious.

Israel's Supreme Court, however, felt constrained to undertake none of these inquiries. Justice Kedmi did not even bother to cite one statute or precedent. The court just took for granted its right to review every government decision and to substitute its judgment for that of the official to whom responsibility is delegated. That is government by judicial fiat pure and simple.

THE American Legal Realists of the 1920s (much beloved by Justice Barak) posited that the result in any case is simply a function of the judge's ideology and prejudices. However dubious that observation was with respect to the American legal system, it perfectly describes the current Supreme Court. If one knows the justices' political views, one can predict with almost hundred percent accuracy the outcome in any given case.

The justices are completely result oriented. Institutional concerns about the role of a judiciary in a democratic society never restrain them in their headlong rush to reach what they deem the most beneficial result for society. They assume without question their right to serve as ombudsman over the unenlightened hoi polloi.

Justice Kedmi and his colleagues are sympathetic to homosexuals. So they created a 'right of free expression' to force Israel TV to show programs positively portraying homosexuality.

The court did not even acknowledge what it was doing. Even these Warren Court wannabees know that no country in the world has recognized a 'right' for any identifiable subgroup in society to have its views aired on public TV. The First Amendment of the American Constitution, for instance, protects against government abridgment of free speech. It is defensive in nature. It does not grant any citizen the right to have the
government or privately-owned media promulgate his views.

The justices themselves do not even belief in the right they implicitly discovered. It just happened to be the means to reach the desired result in this case.

Imagine that a group calling itself the Committee for Media Fairness to Haredim produced an interview with four haredi teenagers discussing their lives. And now imagine Educational TV refused to broadcast the show. Does anyone dream that the Supreme Court would grant the committee standing to challenge the decision of
the broadcast authority or order the program shown? The committee would more likely be assessed court costs for filing a frivolous suit.

That hypothetical case conveys some sense of the extent to which the court is doing nothing more than imposing its particular values on society. They are taking advantage of the public's long-standing apathy and, as an oligarchy lacking all judicial craftsmanship and without any sense of limits on its own power, forces its 'enlightened" views upon us.