One year into the reign of Supreme Court President Asher D. Grunis, the anointed
prince of the school of anti-judicial activism has fulfilled some of his
supporters’ goals while moving to the unpredictable center of the judicial map
This was a man who had been prohibited from taking charge of
the court because he had less than three years left before mandatory retirement
(70), but was lifted into the top judicial position by a right-wing-backed new
Knesset law removing that bar.
His supporters dubbed him the savior after
20 years of an “activist” court revolution. Yet, the mantle of power has a way
of bringing judges from both ends of the spectrum into the Center.
Pnina Lahav notes this in her biography of highly respected former Supreme Court
president Simon Agranat, saying he started off as a revolutionary, intent on
establishing as much of a de facto constitution as possible, citing Israel’s
Declaration of Independence as embodying a binding commitment to certain
fundamental freedoms, often to the chagrin of other branches of
But once Agranat became head of the Supreme Court, Lahav says
that he became more cognizant of trying to please the different branches of
government, with “continuity” and the status quo becoming his
Grunis’s reign has not made him a judicial activist, but if
Agranat was drawn from Left to Center, Grunis may have been drawn from Right to
Regarding foreign policy and national security issues, Grunis was
all over the map, but had two ground-breaking back-to-back decisions against many
of the settler activists who effectively put him into power.
two major decisions, just after taking over the reins, were ordering the state
to remove the Migron and Ulpana settlements.
These two rulings made his
right-wing supporters’ mouths drop.
Some supporters were so shocked that
they angrily spoke out and wrote op-eds against former court president Aharon
Barak’s judicial activism, which had supposedly led to the ruling.
Barak had retired years before, and the ruling was made by Grunis, their own
The two rulings were especially noteworthy for the harsh
language Grunis used to describe the state’s attempt to undo earlier court
rulings and his quoting word for word a previous decision of former supreme
court president Dorit Beinisch, as if to say, “I may not be an activist, but I
will defend the court’s autonomy as much as she did.”
Some thought that
maybe Grunis had completely abandoned the Right, which had essentially put him
in power. But that understanding can be dismissed as overly simplistic following
the court’s handling of the petition regarding most university presidents’
opposition to declaring Ariel University Center Israel’s eighth university, and
not just another college.
The case was important because of the impact on
funding to AUC and to other more left-wing universities and also because of the
massive entrenchment that it indicated for Israel in the West Bank.
another astounding show of formalism, the court essentially refused to rule on
First, it drew out the proceedings for a long enough time that
the state got the hint that the court would look the other way if it acted and
formalized AUC’s status, even though the case was pending before the
Then, as with the case of migrants on the border, the court
dismissed the university presidents’ petition without deciding the merits of the
issue, saying it was powerless to handle the petition to stop AUC from becoming
a university now that it already was one.
The court could have stopped
the action and could even have retroactively stayed the action and sanctioned
the state for putting new facts on the ground on a case before the court. But
that is not Grunis’s style and he clearly was not going to fight on that case
for the court’s independence.
On a major recent case dealing with
compelling the Shin Bet (Israel Security Agency) to videotape its
interrogations, Grunis also declined to get involved in any substantive way –
this despite that the Turkel Commission Report II and former Shin Bet head Yuval
Diskin have both pressed publicly for videotaping interrogations.
did not sit on another case strongly upholding the state’s administrative
detention policy for Palestinians, but it is hard to believe that his
predecessors would not have made sure they were on the panel and it is likely
that they would have authored a more nuanced opinion or at least made their
support for the state policy more qualified.
Grunis continued to confound
analysts in his handling of Arab-Israeli issues.
He led a 9-0 rout of the
attempt to disqualify Balad MK Haneen Zoabi from running for Knesset and upheld
her party’s right to satirize the national anthem in campaign ads.
on the Right saw this as another major betrayal, protecting someone who had
participated in the May 2010 Mavi Marmara flotilla.
But then Grunis
dismissed Zoabi’s petition to fight against the Knesset’s stripping her of
certain parliamentary privileges (due to her involvement in the flotilla) on the
grounds that her privileges would be automatically restored in the new Knesset,
rendering her complaint moot.
The Knesset had moved to strip her of those
privileges after the May 2010 flotilla, and by March 2011 the case was already
before the court and all arguments before the court had been completed eight
months before the election.
With an issue of such constitutional
importance sitting on the calendar for so long, one cannot help but think that
Grunis may have kept the case from being heard long enough to get to this point,
when he could say, “Oops, this is not relevant anymore.”
In some areas,
his evolution from Right to Center has been less obvious. In the area of African
migrant rights, Grunis led a panel in delaying a decision regarding migrants on
the Egyptian-Israeli border for long enough that by the time the court
reconvened, Prime Minister Binyamin Netanyahu had made the issue moot by having
the migrants sent back to Egypt.
The debate was whether the migrants were
outside the border trying to get in or whether they had successfully just
crossed over the border but were being held up to try to get them to leave and
deprive them of international law-granted rights to stay.
It was also
noteworthy that despite this clear violation of the court’s jurisdiction, rather
than rebuking and sanctioning the state, Grunis merely noted that with no
migrants left, there was nothing for the court to do.
ON TUESDAY, the
High Court addressed the broader issue of the state’s new policy to place
thousands of migrants in Saharonim detention center in the South, either to keep
track of them or to not so indirectly convince them to “voluntarily” leave the
Although the Grunis-led panel ordered the state to explain its
policy, the fact that the state was given about seven weeks to even respond
(with no way of knowing when the court will actually rule) and that the law was
not frozen in the meantime spoke volumes about Grunis.
predecessors were not merely activists in the sense of ideology; they were
emotionally invested in some of the major cases and made it clear in their
opinions and with their body language that they believed their role was to
defend the weaker and downtrodden of society.
Wherever Grunis and the
court eventually come out on this issue, thousands of migrants who have been in
the detention center for months will be there for at least several
In other words, Grunis is in no rush, even if he might sympathize
with their arguments (and it is unclear whether he does). The emotional voice at
the hearing taking the state to task for not taking the issues seriously and
only arguing procedurally was not Grunis but Justice Miriam Naor (who would have
been head of the court if not for the “Grunis law”).
dispassionately said that the state would need to explain itself.
(“Dispassionate,” “unmoved” and “formalistic” are good descriptions of Grunis’s
body language and presence in most hearings.) If his decisions on foreign
policy, national security and Arab-Israeli issues made it seem like the mantle
of power had moved him completely to the unpredictable Center, his stance on
migrants’ rights at least is indicative that he comes from a more “Right” or
more anti-judicial intervention perspective and has maintained that perspective
in some areas.
Probably the most indicative decisions of Grunis’s
personal anti-interventionist ideology was his series of fines against human
rights groups for filing what he considered unnecessary petitions, with one as
high as NIS 45,000 against the Association for Civil Rights in Israel for a
petition claiming unequal treatment of the poor at a medical center in
These fines were unprecedented, caught all of the groups off
guard and were unquestionably a form of counter-activism or initiative from
Grunis to try to reduce the number of petitions filed by these groups in
Grunis has not yet issued a final ruling on a major housing
discrimination case against Israeli-Arabs, but at the hearing on the issue, his
criticism of the human rights groups’ arguments seemed to put him firmly in a
majority against the petition – though there were some justices who spoke up
equally loudly in favor.
But continuing to confound anyone who would want
to place him firmly on one side of the legal debates, he ordered the
Anti-Boycott Law to be frozen, at least temporarily, firmly stopping the Right
from using a major new tool to sue and potentially harass human rights groups on
In the end, Grunis’s rulings since he began to head the court
(especially compared to some rulings from before he headed the court) likely
show that while he is primarily a formalist who is against “judicial activism”
and who sympathizes with certain ideologies that are considered more
“right-wing,” becoming the leader of the judicial branch has to some extent
brought him into the Center.
He is far less likely to jump into
constitutional debates to protect minority rights or to sit in judgment of the
state on national security issues, but at the same time he will fiercely defend
the court’s independence and its own prior rulings and will not suffer “new”
ideological laws on the Right to attack the Left or Israeli-Arabs if he views
them as going too far.
Of course, this is only where Grunis is after one
In the coming months he will likely rule on the state’s migrants
policy, housing discrimination, the fate of former prime minister Ehud Olmert
and possibly the fate of former foreign minister Avigdor Liberman.
first year gives significant indications of his move to the Center, but
ultimately, only time will tell.