No government action or failure to act was beyond the purview of the Barak Court
2017, I was invited to participate in a panel in Palo Alto on the topic "The Majority Votes, a Minority Rules." The minority thus fingered was the Israeli chareidi community, which is why I was invited at the last minute. I began, however, by stating that the only minority that rules in Israel is the country's High Court. That has been a regular theme since my first piece in the Jerusalem Report in 1997, entitled, if memory serves, "The Man Who Would Be King," on Court President Aharon Barak and his judicially declared "constitutional revolution." Nearly one hundred columns and long essays followed on related topics.
The thrust of many of those pieces was to demonstrate how anomalous the Israeli legal system is when compared to other stable democracies, and how anti-democratic those anomalies are. In a critical 2007 review of A Judge in a Democracy by Aharon Barak, who as Court president single-handedly established Israel's High Court as the most powerful in the world, Judge Richard Posner, one of America's leading legal thinkers as a professor and judge, concurred with the earlier judgment of Judge Robert Bork that Barak had established "a world record for judicial hubris." (Barak's tenure as Court president ended in 2006, but his successors were all his acolytes, and the "constitutional revolution" continues to rest on his arguments.)
Traditionally, Posner wrote, democracy has been defined in procedural terms: "a system of government in which the key officials stand for election at relatively short intervals, and are thus accountable to the citizenry." That, however, is merely "formal democracy," according to Barak. His interest is in "substantive democracy," which encompasses all sorts of "human rights" and requires an independent judiciary to discover those rights and enforce them. Those "human rights" go far beyond the political rights — freedom of speech, freedom of the press, freedom of association, and freedom of petition — essential to a functioning democracy.
In Barak's view, the world is filled with law — i.e., there is no human action that is not subject to a legal norm, and judges are empowered to determine those norms. In furtherance of that vision, Barak did away with traditional legal doctrines of standing (who may bring a suit) and justiciability (what subjects are appropriate for judicial determination). He boldly declared that even call-up orders in wartime are not beyond the scope of judicial review.
As a consequence, no government action or failure to act was beyond the purview of the Barak Court. The late Professor Ruth Gavison charged that no high court in the world set out to determine every societal norm to the extent that the Barak Court did. But by setting itself up as the supreme moral authority, Gavison told Ha'aretz's Ari Shavit in 1999, the Court undermined its stature as the chief judicial authority. Rather than competing with Rav Ovadiah Yosef, she said, the Court should make clear that it operates in a completely different sphere.
(Gavison was, in her lifetime, the only Israeli legal figure who could match Barak's international prestige, and, as a consequence, he fought tooth and nail, successfully, to keep her off the Court in 2005, when Justice Minister Tzipi Livni pushed for her appointment.)
Barak, however, does not view morality and legality as separate realms. It is the judge's duty, he argues, to give expression to the values of the "enlightened" and "progressive" members of the public. The standard of "reasonability" wielded by the ideal Barakian judge (i.e., Barak himself) is precisely what accords with the views of the enlightened public. Government actions that are unreasonable by those lights would be, according to Barak, illegal.
Not surprisingly, what the High Court deems "reasonable" trends heavily left. Thus the Court developed out of whole cloth a doctrine that the government cannot make major decisions with elections pending, and thereby prevented a previous Netanyahu government from closing Orient House and from making certain appointments. Yet when the Lapid government signed away Israeli territorial waters in the Mediterranean five days before elections, without even consulting the Knesset, the Court found no infirmity because of its "caretaker" status.
Not surprisingly, Barak ardently defended Israel's unique method of picking new judges for the High Court, according to which the three sitting judges on the nine-member selection committee, exercise a de facto veto over potential new colleagues. The result of that system, charged Gavison, is that the Court becomes a "self-perpetuating sect" of like-minded individuals drawn from the same narrow societal stratum. But what was a bug in Israeli democracy, for her, was a feature for Barak, a means of ensuring that progressive values prevail and the lower orders are kept in place.
While Barak writes of the need for appropriate checks and balances on the executive and legislative branches, i.e., the elected branches, his strictures never apply to the judicial branch, which sits as the umpire above.
Throughout his 27 years on the High Court, Barak consistently found new ways to expand its power, in order to fulfill his vision of a world filled with legal norms determined by judges. But what Barak and his chorus of supporters in the legal profession and the media termed the "rule of law" was rather, in the words of Moshe Landau, one of Barak's predecessors as Court president, the "rule of the judge."
But the role of 15 Platonic Guardians, Landau told Ari Shavit, is not one for which the judges of the High Court were trained or for which they have any special competence. Landau was echoing the late Justice Scalia's obiter dictum: "A system of government that makes the people subservient to a committee of unelected lawyers does not deserve to be called a democracy."
One of Barak's most daring power grabs was declaring two Basic Laws passed in 1992, in the middle of the night, with 37 MKs (out of 120) voting for one and 23 for the other, to be of constitutional status, and thus giving the Court the right to strike down Knesset legislation. And even that was not enough. The judges of the Court, he argues, are free to introduce other "unenumerated rights" into the Basic Laws, even those drawn from other legal systems. That claim is fully consistent with his method of statutory interpretation, which was guided not by the legislative intent of the people's elected representatives, but by the proper "substantive ends" of government, which necessarily shift over time.
In the Court's most audacious usurpation, Barak's successors claimed for the Court the power to adjudicate the constitutionality of its own declared constitution, i.e., the Basic Laws, and to strike them down as "too political" or "insufficiently deliberated." That later characterization certainly applied to the 1992 Basic Laws, passed with scant debate, and with few MKs even knowing what was in them, which formed the basis of Barak's constitutional revolution.
Barak's tactical acumen reached its peak in his transformation of the position of attorney general from one of acting as the government's chief legal advisor and representative to one of acting as the de facto emissary of the Court to keep an eye on the legislative and executive branches — all without a stitch of statutory warrant. Barak ruled that the attorney general — a position in which he served from 1975 through 1978 — can nix any government action he determines to be unreasonable, and thus illegal. And that decision is not subject to judicial review.
The irony is thus that any citizen or activist group can challenge a government action, under Barak's loosened rules of standing and justiciability, and obtain a hearing before the High Court sitting as the Beit Din Gavoha l'Tzedek ("Bagatz"). The only party that cannot gain judicial review of its legal claims, or even legal representation, is the government itself, if the attorney general rejects the government's position and refuses to represent it. Today, the attorney general's power has been expanded further, as she appoints legal advisors for each government ministry, with the same powers over that ministry that the attorney general exercises over the government itself.
The position of attorney general is a traditional stepping stone to the Court, as it was for Barak. And an ambitious attorney general is thus well advised to rule in accord with the positions of the president of the Court. Thus the judicially created powers of the attorney general make that position an effective agent of the Court for keeping an eye on the elected branches, and without the mess and bother of the Court itself having to reverse government actions and attract criticism. (Barak's writings are liberally laced with expressions of contempt for the elected branches.)
Not surprisingly, the unreviewable veto of the attorney general over government actions and his power to appoint legal advisors to the various ministries are prime targets of the upcoming judicial reforms. In addition, the reforms replace the "reasonability" standard for overturning government actions with a standard closer to the "arbitrary and capricious" standard used in American administrative law, and require a supermajority of the Court to strike down Knesset legislation. Statutory standards for standing and justiciability will likely be legislated as well.
Whether or not provisions for a legislative override of the Court's striking down of a statute are enacted, the above reforms will significantly tether the Court's power. (Incidentally, the "notwithstanding clause" of the Canadian constitution allows even provincial legislatures to override High Court decisions for a period of five years.)
At a Motzaei Shabbos demonstration against the reforms, an emotional Aharon Barak told a crowd of demonstrators that he would rather face a firing squad than watch his life work destroyed. But he has only himself to blame for grabbing too much power for the judicial branch, with no sense of restraint and with consistent disdain for any criticism.
Barak's judicial revolution lasted in power more than a quarter century. Now, it is up to those taking down the edifice that Barak built to move with determination, but not haste, and with care to explain the policy reasons for each step, whether the opposition wants to hear them or not.