A new era of judicial activism

A recent rush of major rulings by the High Court of Justice has framed the near conclusion of Supreme Court President Asher D. Grunis’s tenure.

October 15, 2014 04:04
2 minute read.
Judges preside in court

Judges preside in court (Illustrative). (photo credit: ILLUSTRATIVE: MARC ISRAEL SELLEM)

A recent rush of major rulings by the High Court of Justice has framed the near conclusion of Supreme Court President Asher D. Grunis’s tenure as well as the upcoming reign of his successor, Justice Miriam Naor.

Grunis steps down from the court and Naor takes over the reins in mid-January 2015.

The three rulings dealt with the constitutionality of the state’s “new” migrant policy (after the court had struck down the old policy in September 2013), a law that hundreds of small villages may be using to exclude Israeli Arabs and other minorities, and a law permitting certain haredi schools to opt out of teaching core general studies if they simultaneously take a public- funding hit.

The rulings, Naor’s appointment and the lack of protest at the appointments of Anat Baron and Menahem Mazuz – soon to join the court – all point to an overall victory for the judicial activism camp.

Overall, Naor is more in that camp than in the strict constructionist camp of Grunis and some others, and there was no attempt to force in a strict constructionist like Grunis through parliamentary acrobatics, as occurred with Grunis.

Baron’s and Mazuz’s views are not expressly known on many constitutional issues, but the critics of judicial activism were unhappy with their appointments, while at the same time failing to rally support for counter-establishment candidates.

Maybe most notable of all was the court’s migrants decision, in which it struck down the state’s entire policy for a second time within one year.

Grunis himself warned that such a ruling risked taking over the role of the legislator, though even he had issues with aspects of the policy.

But the victory is quite watered-down.

The state’s reaction to the court’s second migrants ruling appears similar to its reaction to the first: ignore the court’s larger critique, tweak the current policy and repass it, thus essentially continuing most of its policy for an extended period and daring the court to strike it down again.

In spite of the court’s two rulings, the fact is that since August 2012, the state has continually detained thousands of migrants, releasing only a small percentage and granting refugee status to a miniscule number.

On the acceptance committees and the haredi school curriculum rulings, the harder core of the activist camp was left in the minority by 5-4 and 7-2 strict constructionist rulings upholding the laws’ constitutionality, and Naor was in the majority to uphold the laws.

All of this points to a Naor court that will be more activist than Grunis, but a far cry from the days of former supreme court president Aharon Barak.

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