Rule of Law: Shifting to the Center

A year into his term, Supreme Court President Asher Grunis has surprised both his supporters and detractors with his rulings.

By
March 14, 2013 23:59
Supreme Court President Asher Grunis

Supreme Court President Asher Grunis 390 (R). (photo credit: REUTERS/Ronen Zvulun)

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 on others.

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.

Prof. 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 government.

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 banner.

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 Center.

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.

His first 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.

But Barak had retired years before, and the ruling was made by Grunis, their own candidate.

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.

In another astounding show of formalism, the court essentially refused to rule on the issue.

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 court.

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.

Grunis 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.

Some 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 country.

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.

Grunis’s 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 more.

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”).

Grunis merely 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 Ashdod.

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 court.

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 the Left.

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 year.

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.

His first year gives significant indications of his move to the Center, but ultimately, only time will tell.


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