Judicial activism – The lesser evil

While excessive judicial activism is not ideal, it is the lesser of evils as long as Israel’s political system allows small political parties to have excessive influence over government decisions.

August 15, 2016 22:44
3 minute read.
THE SUPREME COURT under Miriam Naor and her predecessor Asher Grunis has made a ‘partial withdrawal

THE SUPREME COURT under Miriam Naor and her predecessor Asher Grunis has made a ‘partial withdrawal from very extreme activisim,’ says Daniel Friedmann.. (photo credit: YOSSI ALONI/MAARIV)


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When the Supreme Court knocks down legislation seeking to discourage illegal immigration because it is “unreasonable”; when it forces a prime minister to fire ministers even though the law does not require him to do so; when it rules on eminently political matters such as the placement of the security barrier beyond the Green Line or the legality of settlements, critics, most of them positioned to the Right, decry the court’s judicial activism.

But while excessive judicial activism is not ideal, it is the lesser of evils as long as Israel’s political system is set up in a way that allows small political parties to have excessive influence over government decisions – particularly in the field of religious freedom for non-Orthodox streams of Judaism.

One of the most outspoken and learned critics of judicial activism is former justice minister Daniel Friedmann. On the occasion of the publishing of the English translation of his 2013 book, The Purse and the Sword: The Trials of Israel’s Legal Revolution, The Jerusalem Post’s legal affairs correspondent Yonah Jeremy Bob sat down with Friedmann, the former dean of Tel Aviv University’s Law School, for an extensive interview.

Not surprisingly, Friedmann is a darling of the right-wing due to his opposition to the Supreme Court’s activism. But unlike most on the Right who don’t like the idea of an elitist group of secular Ashkenazi legal scholars knocking down laws passed by right-wing governments heavily influenced by the demands of haredi political parties or settler groups, Friedmann takes a different view.

From the interview it emerged that Friedmann, who defines himself as a centrist who favors civil marriage and is against the expansion of settlements in Judea and Samaria, opposes the disproportionate influence of the ultra-Orthodox and the settlement movement on legislation. His opposition to judicial activism is principled, not political. He believes only democratically elected governments, not the courts, should have the power to decide on laws that affect Israeli society so profoundly.

What, then, should be done to curtail the excessive influence that haredi and settler groups have on politics? Friedmann believes the answer is reform in the electoral process that would prevent small political parties from leveraging their influence in the government well beyond their electoral strength due to their ability to topple a narrow coalition. This could be achieved by further raising the electoral threshold.

In principle, we agree with Friedmann. Ideally, only a government that has a mandate from the majority should be empowered to make far-reaching legislative changes. In Israel’s present political reality, however, judicial activism is the lesser evil. This is particularly evident in the court’s defense of non-Orthodox streams of Judaism including on matters of personal status.

If not for the court’s activism, converts by non-Orthodox streams of Judaism who underwent their conversions abroad would not be recognized by the state under the Law of Return. The court saved Israel from a break with North American Jewry over the issue of “Who is a Jew?” More recently, the court ruled to provide non-Orthodox rabbis with state-funded salaries just like their Orthodox counterparts; it forced the state to allow non-Orthodox converts to Judaism to use state-built ritual baths (mikvaot).

A solution that provides non-Orthodox streams of Judaism and the Women of the Wall group with access to the Kotel on their own terms will be made possible thanks to the understanding that if a mutually agreed solution is not reached, the court will intervene on behalf of the non-Orthodox and Women of the Wall.

None of this would have been possible without the court. The haredi parties in the coalition would have prevented it.

As long as smaller parties have disproportionate influence over government decisions, the only counterbalance that protects religious freedoms for all Jews – Orthodox and non-Orthodox alike – is judicial activism.

Solutions such as electoral reform or adoption of a constitution might be better. But as long as political realities make such reforms unrealistic the lesser evil is judicial activism.

If ensuring that the State of Israel remains the home of all Jews regardless of their affiliation necessitates judicial activism, so be it.

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