The political and legal legacy of Supreme Court Justice Elkayim Rubinstein

Rubinstein weighs in on the controversial haredi-draft issue.

By YONAH JEREMY BOB
Elkayim Rubinstein meets with his Jordanian counterpart before peace talks, 1994 (photo credit: REUTERS)
Elkayim Rubinstein meets with his Jordanian counterpart before peace talks, 1994
(photo credit: REUTERS)
"People should read before they criticize,” retired justice Elyakim Rubinstein told Israel Radio on Thursday in a first interview on a deluge of major rulings he and the High Court of Justice issued in recent days.
The first interview came immediately after what was effectively Rubinstein’s explosive last stand as part of the court.
He was responding to massive attacks on the High Court’s rulings, especially the decisions striking the state’s policies: for integrating ultra-Orthodox men into the IDF as discriminatory; for negating east Jerusalemites’ residency for affiliation with a Palestinian political slate affiliated with Hamas; and a few weeks ago for striking the state’s African migrant policy.
He said he and the court have been demonized as anti-Torah, when in fact his ruling about haredim in the IDF gave a stirring defense of Torah study.
In other words, anyone who carefully read his ruling would have seen that he did not put down Torah study.
Rather, he only elevated serving in the IDF as an equally important value that must be undertaken in tandem with considering the value of Torah study.
Some court critics have also accused the High Court of trying to overwhelm the public with rulings so that they would not catch all the implications.
Rubinstein shot this down.
He said there was no advanced plan to issue all of the rulings at once and it just happened that way because a number of the cases dealt with are highly complex developing issues.
Ultimately, he said the decisions were issued when they were as he had retired and had to be issued within three months of his retirement.
But with all of Rubinstein’s nuance, the bottom-line impact of Rubinstein’s last stand and take on the haredim in the IDF issue could not be more pulverizing and less nuanced.
Throwing out the state’s policy on the issue created an immediate potential coalition crisis and a social crisis between the haredi and secular sectors.
Granted the court gave the state a year to resolve the issue and the state’s past policy had mostly thumbed its nose at the secular sector and at past court rulings demanding greater equality in haredi participation in the IDF.
Also, from a political perspective, the coalition does not seem to be shaken by the ruling as seems to be revving up to past another law which will still exempt most haredim from IDF service.
It is very questionable whether Rubinstein’s peacemaking radio appearance can reduce the hostility to the High Court with the zero-sum mentality from the haredi sector that anything beyond an exemption from IDF service is a hostile act.
Despite his efforts to reach a middle ground which he referred to in the interview, it seems that ship sailed when the 2014 Yair Lapid legal fix for the issue, which criminalized haredi draft dodging and set hard recruiting benchmarks, was discarded by the current coalition in 2015.
Ironically, Lapid’s law, which still demanded far less than 100% haredi (ultra-Orthodox) participation in the IDF, is probably what the High Court would have green-lighted since it at least on its face required a major jump in enlistment.
This was hinted to by several justices in their opinions striking the 2015 law as having haredi recruitment benchmarks which were too watered-down.
All of this means that at least on this issue, as major as Rubinstein’s last stand was, it will probably not be more than another battle in a social war with more battles on the horizon and no end in sight.