Supreme Court pundits were ready to say that new Supreme Court President Asher D. Grunis had disappointed his supporters on the Right, and happily surprised his detractors on the Left. But that was only Grunis’s Act I in shaping the court. Act II has taken a different direction entirely.
On Thursday, Grunis authored an opinion that could cause a massive paradigm shift in reducing NGO petitions to the court, while at the same time dramatically self-limiting the court’s powers.
Coming into the job, Grunis was supposed to be the anti-Barak/Beinisch Supreme Court president.
If former Supreme Court presidents Aharon Barak and Dorit Beinisch sought to expand the court’s powers to supervise governmental actions even in areas like national security and setting borders, Grunis would keep the court from getting involved and let the Knesset and the government have its way.
Grunis’s supporters expected that he would also limit the court’s interventions into other areas where the court had criticized the state or business ventures with regards basic rights.
Proponents of Grunis and of this world view, such as former justice minister Daniel Friedman, saw the Barak-Beinisch years as an aberration when an unelected court manufactured a constitution of rights and imposed them on the elected parliament of the country despite the nonexistence of a constitution.
Supporters of Barak and Beinisch would have responded that the absence of a constitution for such an extensive amount of time made the court’s defense of basic rights – which were otherwise unconscionably vulnerable – a necessity.
Beinisch’s retirement was greeted with fanfare by the Right and those favoring a limited judiciary. The blow was absorbed by the Left and those in favor of a more active judiciary with predictions of darker days.
Then came Grunis’s (leading panels of High Court judges) shocking rulings on Migron and Ulpana. In consecutive high-profile rulings setting the powers of the judiciary over settlements and essentially borders policy, Grunis led the court unabashedly in slamming the government’s positions of trying to hold onto the outposts in question and escape rulings made against it during Beinisch’s term.
As if to hammer the point home with a thundering exclamation mark that he would uphold and not trample the legacy of the Supreme Court leaders before him such as Beinisch, Grunis concluded his Migron rebuke of the government and the settlers by quoting an entire paragraph – word for word – from Beinisch’s August 2011 opinion on the issue.
While justices often cite previous opinions, the context of such a word-for-word quote was no accident.
Suddenly, the Left found an unlikely hero and the Right began to cry betrayal, saying it had been misled into passing a special law to make Grunis eligible to lead the Supreme Court, only to find that he was leading the court independently and not in the direction they wished.
Act I may have already ended in May 2012 with some other recent cases in which the court, led by Grunis, slapped an unusual number of fines in the NIS 15,000-17,000 range on NGOs for various technical infractions, beginning a process of discouraging NGO filings to the High Court.
But the recent ruling against ACRI, with an even steeper fine of NS 45,000 for filing its petition late, makes it unambiguous that Grunis has entered Act II – fulfilling the expectations of his original supporters, at least in the area of NGO filings.
Activists like ACRI Attorney Gilad Barnea will argue that both the size of the fines and the reversing of precedents – in significantly elevating the importance of procedural bars against NGO petitions even in issues involving basic rights – embody a massive regression in the development of democratic norms in the country.
Grunis’s supporters will likely argue that he is restoring balance to a judiciary that had taken on too much power.
The truth is that while this is Grunis’s latest act, the debate about judicial power predates the Barak- Beinisch years, dating to the founding of the state, when it took several years before the state even agreed to give Supreme Court justices tenure and safety from firing on political grounds.
It will probably continue unabated at least until the day when a constitution is ratified – if ever – and maybe even beyond.
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