Neal Hendel: A US oleh who rose to the top of Israel's judicial system

Who is Israeli judge Neal Hendel in terms of where his decisions are on the spectrum of critical debates over judicial liberalism versus conservatism?

 AN AERIAL view of the Supreme Court building in Jerusalem. (photo credit: Wikimedia Commons)
AN AERIAL view of the Supreme Court building in Jerusalem.
(photo credit: Wikimedia Commons)

After 34 years as a judge – including 12 years on the Supreme Court that he finished with terms as deputy chief justice and head of the Election Commission – Neal Hendel retired from the judiciary in April.

He did so in characteristic silence with none of the public ceremonies that are held for most retiring justices. And he has maintained that silence, giving absolutely no interviews to the general media (The Jerusalem Post made repeated requests) even now, some five months after stepping down.

However, in May, Hendel did give an interview to a group of Israeli judges for a publication designed solely for the judiciary. The Post has obtained access to that interview, which until now had not been made public.

Summarizing some of his broader views on the judiciary, his time on the highest court in the land and his commitment to judicial pluralism, Hendel said in the interview, “In the Supreme Court building there is a multi-colored mosaic. Harmony. In my eyes, it is similar to a choir of voices. Each one [justice] comes with his own background and his personal experience and judgment. This is positive from a professional perspective and can elevate the judge upwards.”

“In the Supreme Court building there is a multi-colored mosaic. Harmony. In my eyes, it is similar to a choir of voices. Each one [justice] comes with his own background and his personal experience and judgment. This is positive from a professional perspective and can elevate the judge upwards.”

Neal Hendel

Trying to put an optimistic outlook on some of the current fiery debates among the political class over judicial activism versus conservatism, Hendel said it took about 50 years for the United States to work out what judicial review should mean after the historic constitutional Marbury v. Madison decision was handed down in 1803.

“The question of what is a Jewish and democratic state is not an easy one and does not have an obvious conclusion at all,” he said in the interview. “In the long-term, I am optimistic and hope that these issues will be sorted out and understood. The court must perform its work, including defending minority rights, eventually along with sensitivity to the state’s Jewish character.” 

“The question of what is a Jewish and democratic state is not an easy one and does not have an obvious conclusion at all. In the long-term, I am optimistic and hope that these issues will be sorted out and understood. The court must perform its work, including defending minority rights, eventually along with sensitivity to the state’s Jewish character.”

Neal Hendel
 NEAL HENDEL (credit: Wikimedia Commons) NEAL HENDEL (credit: Wikimedia Commons)

But who is Hendel in terms of where his decisions are on the spectrum of critical debates over judicial liberalism versus conservatism?

What does Neal Hendel think about the issues in Israel?

ALL JUSTICES bring their own nuances to the court and do not necessarily fit neatly into the public’s stereotypes of clear-cut opposing camps. Roughly speaking, however, Hendel’s rulings put him in the moderate conservative category, with the notable exception of him being especially liberal on certain freedom-of-speech issues.

When it came to balancing security and democracy and Left-Right issues related to Palestinians, Hendel was a strong conservative.

In the Supreme Court ruling rejecting attempts to legalize the Mitzpe Kramim outpost after it had already been built without the government’s authorization, he voted in the minority in favor of legalizing.

Hendel supported the majority Supreme Court ruling that found that the IDF’s rules of engagement during the 2018 Gaza border conflict complied with international law. He wrote poetically and referred to the biblical story of the trickery used by Jacob to fool Isaac, saying, “The voice was a voice of protest, but the hands were the hands of terror.” In other words, part of why the IDF could use force was because it was dealing with various forms of attacks and violence from Gaza, not just peaceful protests.

But he was in the minority when he voted to allow the government to hold terrorists’ bodies in order to use them as a bargaining chip to obtain bodies of Israelis from Hamas, which has effectively held hostage some Israeli remains.

Whereas the majority opinion was that the settlers had built on the land without proving in good faith that they believed it was legal to do so, Hendel accepted the idea that the question of intent might have been hazier, and that the settlers should be given the benefit of the doubt.

Likewise, Hendel not only ruled with the majority of the Supreme Court that the Citizenship Law which exists to prevent family unification between Israeli-Arabs and West Bank or Gaza Palestinians granting Palestinians citizenship through marriage. He was also in the minority when he said that east Jerusalem Arabs who were part of Hamas’s parliamentary slate in the Palestinian Authority could have their citizenship nullified.

Moreover, Hendel has supported numerous rulings to bulldoze the homes of families of terrorists. He has also opposed granting security prisoners’ academic privileges while in jail.

HE MADE A clear distinction between how he felt as an adolescent and a young lawyer growing up in the US (he was born in Brooklyn in 1952 and only made aliyah at the age of 31) with the Vietnam War dominating public discourse, and living as a judge in Israel. Unlike the US with Vietnam, he said Israel has “an emergency situation and I am not immune from certain dangers, nor is my family, my children nor my grandchildren. When I traveled around New York, I did not feel that I was in any great danger from Vietnam. Here, it [the danger] is very close.”

Nonetheless, he is moderate conservative as opposed to strongly conservative in comparison to, say, Justices Noam Sohlberg, David Mintz and Yosef Elron.

When the Supreme Court declared that the Knesset’s “Hauser Compromise” – which postponed the deadline for passing a state budget – had been “an improper use of parliamentary power,” he was in the majority of a 6-3 split.

The justices in the majority said the Hauser Compromise law was crafted in such a way that it could only apply to a specific time period and the government in question, not to future governments, which made it invalid.

Sohlberg, Mintz and Elron all voted that it was beyond the power of the Supreme Court to intervene.

He also voted in a 6-1 majority to limit the Shin Bet’s (Israel Security Agency) surveillance of coronavirus-infected citizens. Once again, Sohlberg voted against, saying the court did not have the power to intervene.

In another show of both his “moderate” and somewhat opposing “conservative” sides, Hendel made moves that can be seen from opposite directions.

When it came to a final ruling regarding the government’s policy to convince African migrants to leave the country, he voted with the majority 9-0 to strike the policy down as too draconian.

High Court of Justice Neal Hendel on Wednesday rejected a request from a group of human rights organizations to freeze the state’s new migrants policy until the court decides on their petition, which seeks to strike down the policy.

But earlier in the litigation, ruling alone on the issue (as often occurs for requests for interim freeze orders), he rejected a request for a temporary freeze of the policy.

He said that since the Knesset had crafted a complex new legislative scheme to handle the issue, it would be improper to freeze the policy without a full hearing.

Coming from the American legal tradition of strong free speech principles, Hendel has been more of a liberal in free speech disputes.

In 2015, Hendel ruled in the majority against the University of Haifa limiting protests during the 2008-9 Gaza War, the 2010 Mavi Marmara flotilla, the 2012 Gaza War and during other major events of tension.

During a hearing, Hendel and the other justices strongly pushed the school, stating that no other university had the blanket power to ban protests for an indefinite period, with some limiting bans to a maximum of 30 days.

Hendel has also issued many defendant-friendly rulings, acquitting a variety of defendants or voting in the minority to acquit defendants whom the majority convicted.

To date, it appears that Neal Hendel’s post-judge agenda will focus on teaching and giving occasional speeches at lawyers’ conferences, while avoiding getting into the headlines.■