Calling a spade a spade

One of the greatest challenges confronting judges in any properly functioning democracy is that of separating their personal views from their role as intepreters of the law. That distinction between one’s private opinions and one’s duties as a judge, however, escapes our current Supreme Court justices, who often seem to be guided by little other than their own ideology.

The Court veers wildly between cases of judicial hyperactivity in which it substitutes its views for those of other governmental branches to cases in which it shows the greatest deference of the other branches. Yet a bright thread runs through the Court’s selective judicial activism: Whether it is being active or passive, the Court ultimately reaches the result supported by Meretz.

Immediately prior to the last elections, for instance, the Court enjoined the government from closing Orient House for violations of the Oslo Accords, even though the closure decision was an exercise of the executive branch’s authority over foreign policy.

In a dangerous precedent, Justice Dalia Dorner speculated (probably correctly) on the government’s political motivations. Imagine an American court ordering a halt to American bombing of Iraq on the grounds that the President was motivated by a desire to distract attention from Monica. In a democracy, the price for such shenanigans is exacted by voters at the polls, not by the courts acting as their guardians.

By contrast, when archaeologists petitioned the Court in January to order the government to halt the destruction of precious archaeological sites on the Temple Mount by the Moslem Wakf, the Court deferred completely to the government. Justice Zamir admitted that the Wakf had violated Israel’s planning and antiquities laws, but found that because of the political sensitivity of the Temple Mount extra-legal factors had to be taken into account and the matter should be left to the government. Thus when Netanyahu was replaced by Barak, the Court switched from activist to passivist mode.

This past week, Justice Zamir summarily rejected a petition seeking the courtmartial of a soldier who proudly told the national media how he had delayed entering a battle in which three of his officers were killed out of ideological opposition to the army’s presence in Lebanon. Justice Zamir lashed out at the petitioner’s attorney for seeking the intervention of the Court in a "military matter" and for running to "the Court for every single thing."

The Court, however, showed no such deference for internal army procedures in the Galili case, where the Court blocked the promotion of a general who had already been punished by the army for an improper sexual relationship with a female soldier. Justice Strassburg-Cohen felt no compunction about second guessing two chiefs of staffs and two defense ministers, and offering her own view that no officer could be that important to the army’s fighting ability.
When the petitioner is a wronged young woman the Court turns activist and substitutes its judgment for that of the army, but when the petitioner is an army officer living in the West Bank, he is sent home after a tongue-lashing for trying to involve the Court in matters beyond its competence.

The pattern that emerges from a comparison of these cases reveals an underlying ideological tilt to the Court. No wonder the Court’s opinions so often read like op-eds devoid of traditional legal analysis. Justice Kedmi’s opinion creating a right for teenage homosexuals to have their lifestyle celebrated on Educational TV was devoid of any legal citation. And Justice Dorit Beinisch’s opinion in the recent "spanking decision" could have been entitled, "My philosophy of modern child-rearing."

Even where the Court cites traditional legal materials, the legal reasoning is a mere patina covering the ideological agenda. Thus in overruling the Parole Board’s decision to parole Yoram Skolnik, the Supreme Court made a retroactive end-run around the pardon power of the president, who had twice commuted parts of Skolnik’s sentence.

To do so Justice Barak concocted an argument that Skolnik remains an ongoing danger to society based on nothing more than Skolnik’s continued adherence to a nationalist-religious ideology. The Court brushed aside the General Security Service’s finding that the danger of Skolnik’s release would be "nearly zero". The Court thus gave macabre confirmation to Skolnik’s pre-hearing quip that his only chance would be to remove his yarmulke and join Peace Now.
The Court wore an even flimsier legal fig leaf when it ordered the government to allow women’s prayer services at the Western Wall involving the wearing of tallitot and the public reading of the Torah. With Orwellian flourish, the Court unblushingly declared such services "traditional" within the meaning of the governing administrative regulations.

According to the Court’s reading of "traditional", egalitarian minyanim and Jews for Hare Krishna will also inevitably find their place at the Kotel. And all in the name of tradition.

A constitutional court on the model of many European countries would be infinitely preferable to the current situation in which justices largely selected by the Court President, and representing a very tiny slice of society, impose their values on the society. Justices of constitutional courts are typically selected through the political process and represent a broad cross-section of society.

In many European countries, the justices of constitutional courts, need not even be lawyers, since, as in Israel, so little of what they do involves interpretation of traditional legal texts. If courts are going to willy-nilly substitute their policy judgments for those of the executive branch, far better that the justices be drawn from many disciplines and represent a broad cross-section of society.

In addition, a broadly representative constitutional court would be much more suited to ruling on such value issues as the status of the Wall. No longer would the form of worship at the Wall be determined by justices who empathize more easily with the feelings of Moslem worshippers on the Temple Mount (whom they protect from the Temple Mount Faithful) than with those of the vast majority of Jewish worshippers at the Wall. Never having prayed at the Wall or even knowing many people who do so regularly, they cannot grasp the sensitivities of Jewish worshippers.

A constitutional court’s great advantage is that it is overtly political, and would at least allow us to call a spade a spade without pretense.