This Time Justice Barak is Right

Democracy depends on the agreement of the members of a given society to abide by a certain set of rules designed to ensure a level playing field and that if one’s views do not prevail today they may do so tomorrow. That understanding of democracy makes Professor Ruth Gavison the ultimate democrat. Though she herself agrees with most of the substantive results reached by the Supreme Court, she nevertheless criticizes the Court for usurping the role of the Knesset and taking upon itself to establish the fundamental values of society.

That ability to look beyond the results that one supports to ask whether the means are appropriate, however, is in short supply in Israel today. Whenever the Left is out of power, it constantly turns to the Supreme Court to achieve what it never could in the Knesset. The New Israel Fund has recognized that it is much easier to convince a panel of three judges than to go through the laborious process of enacting legislation to support its social agenda, and is currently in the process of offering special courses and trips to America for lawyers who may one day enter academia, or take positions in the State Attorney's office or become judges.

These same issues are raised in a different context by a petition brought in the Supreme Court last week by Mordechai Eisenberg of The Movement for Proper Government, seeking to overturn the drastic cuts in Child Allowances. I have previously written in these pages of the excellent work done by Eisenberg, and this petition was no exception. Eisenberg documented at length the dramatic impact of the cuts in Child Allowances. He demonstrated that not only families of kollel avreichim, but even many large families in which one or both parents are working cannot remain above the poverty line at the current level of child support payments. Such a situation, The Movement for Proper Government argued, violates the basic right to human dignity embodied in Basic Law: Dignity of Man. (The question might be asked why it is left to a private non-profit organization, financed entirely out of the pocket of one man, to defend the interests of the chareidi community in the Supreme Court.)

As usual the justices listened to Eisenberg with a great deal of respect. In the end, however, Court President Barak advised him to withdraw his petition on the grounds that the determination of the levels of Child Allowances is basically a political one that should be left for the Knesset.

In terms of democratic theory, I think Justice Barak was right. The power of the purse is basically the only one left to the Knesset, which has witnessed a gradual whittling away of its power over the last decade and more. Every decision to fund one public need inevitably entails less money for some other public need. The budgetary power ultimately requires establishing a set of priorities among competing national needs, and that, in turn, depends on a series of value judgments, which in a democracy should usually be left to the democratically elected Knesset.

If the Supreme Court were to assume control of the budget process as well, the last remaining prerogative of the Knesset would be lost, and the Supreme Court would then be the body entrusted with establishing all national priorities.

Should this concern us when we seek relief from the Court? Is there any reason for the chareidi community to show more fealty to the principles of the democratic game than Meretz does? Or should we rather pursue the best interests of the community by whatever means are available to us – sometimes in the Knesset, sometimes in the Supreme Court.

On one level it may seem obvious that we should pursue our interests by any legal means available, without spending too much time worrying about the finer points of democratic theory. When children are going to bed hungry, what right do we have to worry about the theoretical issues? For us, after all, democracy is only the best system for diverse groups to coexist in one society, not the ideal form of government, and we do not have to be any more pious democrats than Meretz MKs.

But even if we answer the theoretical question in favor of pursuing all possible avenues, there remain some practical questions involving the balancing of short-term and long-term interests.

The Supreme Court indicated to Mordechai Eisenberg that it might be prepared to reconsider his petition in two years time when further projected cuts in child allowances have taken effect. In the meantime, proposals for a basic law of minimal social rights, which would give the Supreme Court the power to determine minimal entitlements to health care, education, and welfare for all citizens are likely to be proposed in the Knesset. Should the chareidi community support such a Basic Law, which would greatly increase the power of the Supreme Court, but which might result in the Court restoring lost benefits to chareidi families?

Again, in the short run, the answer may seem obvious. But life requires that we balance short run interests versus long-range goals. If we support the transfer of greater power to the Court, in areas traditionally thought to be the province of legislature, we will not be in a position to state a principled objection, on grounds of democratic theory, when the Court, for instance, determines that local governments do not have the power to ban the sale of pork or to confine its sale to certain areas, or requires the recognition of Reform converts.

Though today, the political power of the chareidi world is close to nothing, it still could be argued that the chance of increased chareidi political power in the future is greater than the chance of the justices of the Supreme Court showing great sympathy to Torah values or to the chareidi community. That being the case, it might be a mistake to strengthen the Court at the expense of the Knesset, even if there is some immediate gain.

Not being prophets, we can never know with certainty the answer to these questions. But before we act, we must at least understand the issues.