Supreme Court Justice Asher Dan Grunis 370.
(photo credit: Courtesy Supreme Court)
Justice Dorit Beinisch will be stepping down Tuesday as Supreme Court president
at the age of 70. Does this mark the end of an era of judicial activism begun by
her predecessor and mentor, former president Aharon Barak? Undoubtedly, incoming
president Justice Asher Grunis favors more judicial restraint than his
predecessors Barak and Beinisch.
In a number of rulings, Grunis has shown
an aversion to judicial activism. Just last week, Grunis dissented from the High
Court of Justice’s majority decision against extending the Tal Law, which
legislated exemptions from military service.
Grunis, in a lone opinion,
held that the court had no business interfering with an issue that should be
left up to democratically elected lawmakers. Part of Grunis’s reasoning was
practical. The incoming president rightly argued that the highly volatile issue
of haredi draft-dodging, which has sparked heated debate for decades, would not
be solved by a single court ruling. But Grunis also based his decision on the
more fundamental belief that the court should limit judicial review of
legislation to a minimum.
Grunis used the same sort of judicial restraint
in additional cases such as in last week’s High Court decision not to strike
down the Disengagement Pardons Law, which exonerates right-wing activists from
all but the most violent crimes perpetrated during demonstrations against the
dismantling of settlements in the Gaza Strip and northern Samaria.
January, Grunis ruled in favor of upholding the Citizenship and Entry Law, which
restricts the right of Palestinians married to Israelis receiving Israeli
citizenship. In both these cases, Grunis shared the majority
Grunis is also in favor of doing away with a legal innovation
first initiated by Aharon Barak in the mid-1980s when Meir Shamgar served as
Supreme Court president. In Barak’s creative jurisprudence, any citizen
may ask the court to block action by the government even if the citizen is not
personally affected by it and therefore lacks “standing.”
to preoccupy the court with frivolous petitions “which must be addressed
posthaste,” wrote Grunis in a May 2011 decision that rejected a request to
disqualify a recipient of the Israel Prize, “robs the court of valuable time and
forces it to put on hold scheduled cases which ought to be accorded
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In large part due to the fact that almost anyone can petition
almost anything, the High Court has been flooded with petitions. Approximately
10,000 petitions are brought before the court every year, about half of which
are discussed. For the sake of comparison, the US Supreme Court – which serves
primarily as an appeals court and restricts itself to hearing only petitions
from individuals with “standing” – deals with about 80 cases a year.
is not immediately clear what kind of influence Grunis will have on the Supreme
Court’s rulings in the future. His ability to hand-pick panels of judges to deal
with particularly sensitive cases is limited. Court tradition dictates that a
judge’s seniority, not his or her opinions, decides the formation of panels –
whether these be the typical three-judge panels or expanded panels chosen to
deal with more contentious cases.
But if Grunis does manage to have an
impact, say by virtue of his personal leadership qualities, we believe it would
be a positive development. By exercising judicial restraint and by restricting
the right to petition the court to those with “standing,” Grunis might succeed
in alleviating the court’s heavy work load, thus speeding the judicial process.
Also, by recognizing that not everything can be ruled upon judicially, the
Supreme Court will force our lawmakers to deal with the most controversial
issues and make the decisions they were voted into office to make.
will always be a need for judicial review. Tolerance, pluralism and respect for
minority rights must continue to be protected by the Supreme Court. There is
always a danger that a “tyranny of the majority” will trample the rights of
those who are not properly represented in our political system.
Supreme Court’s strength and legitimacy is best protected when exercised with
restraint and when judges are not perceived as partisan or politically
motivated. Grunis’s moderate approach will best ensure that the court
remains a respected and honored institution.
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