For the past 25 years, and especially in the last few, there has been a growing sense that the Supreme Court is not just a High Court of Justice: When it comes to sensitive matters, the Supreme Court behaves like an organized party with an agenda that everyone knows about.
At a few conferences I’ve attended lately, I claimed that if I am told which panel of justices is sitting down to discuss a given matter, I can guarantee that I’ll predict exactly how they will rule. It’s very unlikely there will be any surprises.
Lawyers adjust the petitions they file to fit the presiding judge. One Supreme Court justice, whom I have known since we were both students at the Tel Aviv University School of Law, heaps praise on one attorney who has specialized in filing petitions of a political nature, applauding him and then sitting down to discuss that attorney’s petitions.
This is incredible in an enlightened democracy, where judges are supposed to be free of prejudice when it comes to the legal representatives and the petitions placed before them. From time to time, I am horrified to hear reports in the media about interpretations from retired justices. The rulings by those judges are an expression of their person worldviews, particularly of agendas that fit in with the “family” spirit, and which for years has been used as the reigning criterion for the selection of judges.
Over the past few years, attempts have been made to diversify the justices of the Supreme Court, but as long as the chief justice decides on the panels, it makes no difference that a small number of conservatives have been appointed.
Former Chief Justice Aharon Barak’s policy of judicial activism has put the executive branch of government under the thumb of the judicial branch, which is comprised of judges who are appointed, not elected. Vague terms such as “reasonable” and “proportional” have forced the High Court on the government.
In addition, the Supreme Court is also making its way into matters that explicitly fall under the authority of the legislative branch. In a 2004 Knesset debate, the Knesset issued a warning about ongoing judicial intervention in the work of other branches of the government – intervention that the lawmakers said; “could turn into a constitutional crisis in Israel.”
We are in the midst of a crisis. The principle of separation of powers no longer exists, and legal advisors have become representatives of the High Court in the Knesset and the cabinet, and have gathered the reins into their hands. The result is that the public’s faith in the Supreme Court is deteriorating to the level of their faith in the country’s political parties.
Israeli society is torn, and even the coronavirus crisis hasn’t managed to completely marginalize the political conflict, which is rife with hatred and strife. It’s a real shame that left-wing organizations and political parties are dragging the High Court into things rather than reaching agreements within the legislative authority. When the legislative branch fails to keep the ball from passing to the Supreme Court, it’s no wonder that the court rushes to intervene.
Despite the harsh criticism about the court intervening in the work of the Knesset and the Knesset speaker – which is against rules and traditional conduct – there is no other option. Regretful as it may be, if the Supreme Court hands down a ruling, we must abide by their decision, even if that ruling is unacceptable and unrealistic.
It is important to remember that if the court doesn’t restrain itself and we do not restore a modicum of moderation to our lives, difficult days lie ahead for the Jewish state. Society will pay the price for the Supreme Court’s brawl with the other branches of government, and that’s a shame.
An article by Dr. Haim Shine. Published on 03-24-2020 in Israel Hayom.