Judicial activism and the chareidim

"Immoral enemies make stupid mistakes," American labor organizer Saul Alinsky used to say. The Israeli Supreme Court provided one more proof of Alinsky’s adage last month when a three-judge panel ordered the state to provide it with some minimal monetary standard for what constitutes a "dignified human existence." The Court’s order came in the context of a petition by various social organizations against the cuts in government welfare payments.

Even those who can normally be counted on to reflexively support every usurpation by the Court of Knesset prerogatives and to accuse critics of the Court’s judicial activism of delegitimizing the main pillar of Israeli democracy sharply criticized the Court’s ruling. Former Justice Minister and Meretz MK Amnon Rubinstein pointed out, "Nothing is more fundamentally the legislature’s responsibility than what to do with the taxpayer’s money. The judiciary, after all, doesn’t levy taxes." Even Ha’aretz, normally the most ardent supporter of Court President Aharon Barak, opined that the Court’s ruling would "disrupt the orderly workings of government."

The reaction was even more furious in the Knesset, where a resolution passed condemning the Supreme Court for trespassing on legislative turf.

The Court’s claim to jurisdiction to adjudicate the level of government welfare payments rests on the 1992 Basic Law:Human Dignity and Liberty. Yet the language of that Basic Law makes clear that the Knesset conceived of the right to human dignity as defensive in nature – i.e., a protection against violations by the state of "the life, body or dignity of any person" – not as an affirmative entitlements to a particular level of social services.

That conclusion is inescapable in light of the fact that the Knesset has summarily rejected at least 15 proposals to anchor "social rights" in the Basic Laws since 1948. At least four of those proposals for a Basic Law of Social Rights have been submitted since enactment of the 1992 Basic Laws. Clearly, then, the Knesset did not conceive such social rights to have been included in the 1992 Basic Law: Human Dignity and Liberty.

Though Court President Barak did not participate in the proceedings under discussion, the Court’s ruling very much derives from his approach. It was Barak who first attributed constitutional status to the 1992 Basic Laws, and found in them an implicit grant to the Supreme Court of the right to strike down Knesset legislation. With that declaration, Israel became the first nation whose constitution was retroactively "discovered" by the Supreme Court rather than promulgated by a constitutional assembly.

Nothing connected to the passage of the 1992 Basic Laws reflects the extensive debate or seriousness associated with constitution-making. Assistant Attorney-General Yehudit Karp concluded in her exhaustive study of the legislative process that not more than a handful of lawmakers had any sense of anything momentous taking place when the laws were passed. Only 37 Knesset members voted in the middle of the night for the Basic Law: Human Dignity and Liberty and 23 for the Basic Law: Freedom of Employment. Even Justice Barak admits that the process was
"almost hidden."

A stealth constitution, created by judicial fiat, is no constitution at all, for it cannot plausibly be argued to reflect the will of the people to enact a legal norm superior to all others.

Having created a constitution and judicial review out of whole cloth, Barak has gone even further, declaring himself not to be bound by the specific terms of the 1992 Basic Laws or the intent of the Knesset as indicated by the legislative debates. Justices have the right to import into the legal system "other unenumerated rights that have no name," he asserts. Indeed he has expended more energy darshaning the title of the Basic Law: Human Dignity and Liberty than he has explicating the specific rights included, which the legislative history demonstrates were meant to be limited to those upon which a broad societal consensus exists.

The Court’s most recent claim that it has jurisdiction to adjudicate the minimal level of social transfer payments to be made by the government is, as we have seen, just another example of the Court effectively writing a constitution for Israel to its own liking. In the process it would usurp the most fundamental power of the Knesset – the power of the purse.

Were the Court to find that the government must increase social transfer payments, it would force one of two courses of action on the government. Either the government would have to make cuts from other areas of the budget – e.g., defense spending – or to engage in deficit spending to a much greater degree than at present. Either alternative is unacceptable.

In the first instance, the Court would then be the arbiter of budgetary priorities to a degree unknown in any parliamentary democracy. And in the latter case, the Court would be determining macro-economic policy to a disastrous degree. An increase in the annual deficit would likely cause the United States to withdraw its loan guarantees and make it much more expensive for Israel to attain necessary credit abroad. The result could well be an economic catastrophe that far from advancing human dignity would do the opposite by causing tens of thousands to lose their jobs.

Long before its decision on social rights, the Israeli Supreme Court had already appropriated for itself the right to determine basic societal norms to a degree unknown anywhere else in the world, according to Professor Ruth Gavison, founder of the Association for Civil Rights in Israel. With the latest decision, it would turn itself into a group of Platonic Guardians, with no need for the other branches of government.

THERE IS, HOWEVER, A FLY IN THE OINTMENT OF THE FOREGOING ANALYSIS as far as the chareidi community goes. A ruling by the Israeli Supreme Court that the government must restore cuts in welfare spending represents the best chance for quick relief from the impact of those draconian cuts on poor chareidi families. At a time when children are going to bed hungry should we concern ourselves with the niceties of democratic theory?

I don’t pretend to know the answer to that question. But when making the determination it is crucial not to lose sight of long-term goals in the pursuit of short-term interests. If today we choose to take advantage of the Court’s judicial activism, we will not be in a position to state a principled objection, in terms of democratic theory, if at some future date the Court determines that municipalities cannot exercise the power granted to them by the Knesset to ban the sale of pork within their borders. (Such a case is currently pending before the Court.)

Today chareidi political power is next to nothing, but there is a much better chance of chareidi political parties once again exercising a decisive role in the Knesset than there is of justices sympathetic to traditional Jewish values being appointed to the Supreme Court, under the present system where the current justices effectively choose their successors.

Perhaps as a warning against some of the dangers of casting our lot with an overreaching Court, last week the Court continued its decade-long whittling away of the authority of rabbinic courts, when it ruled that a civil court could adjudicate child custody issues, despite the divorced couples’ previous agreement to adjudicate custody issues in beit din. We should take note.