Judicial activism’s main victim is the court itself

Rulings that can’t be enforced reduce the court to an impotent political actor.

By
February 28, 2012 15:57
Activists protest Tal Law at PMO in J'lem

Tal Law Protest 311. (photo credit: YouTube Screenshot)

 
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Advocates of judicial activism all too often overlook its significant costs – not only to society, but to the judicial system itself. Last week’s High Court of Justice ruling overturning the Tal Law, which governs draft exemptions for yeshiva students, is an object lesson in both kinds of costs.

This was a blatantly activist decision: The court overturned a law duly enacted by parliament on the grounds that it violated a right to “equality” which not only exists nowhere in Israel’s quasi-constitutional Basic Laws, but was deliberately omitted from them. Certainly, the court is correct in deeming equality one of the state’s fundamental values. But what the Basic Laws’ drafters understood is that when people from diverse religious, cultural, ethnic and linguistic backgrounds are thrown together in the pressure cooker of a tiny country permanently at war, the overriding need to enable them to somehow coexist without an explosion sometimes requires messy compromises that fall short of the rigorous standard of equality implicit in a constitutional right.

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