Among the matters being argued by the Jews of Israel is their Supreme Court.
Somewhere in the noise are the classic questions about democracy. What is it? What's enough? What's too much? and Who is the best guardian?
Commentators are describing a series of instances that have upset, altered or challenging actions of the Knesset or other official bodies. Jurists, politicians, activists, and street rowdies are at higher than usual volume and low-level violence about what they see as threatening all that is sacred. Or--for the secular among them--essential.
It's impossible to know if there is more noise in favor of the Supreme Court, or in favor of reigning in the power of the Court.
The recent list of Court involvements has featured several decisions against the actions of the Knesset or other governmental bodies, as well as cases being considered that have provoked aspirations or fears.
- Exemptions from the draft of ultra-Orthodox Yeshiva students
- The Rabbinate's control over certificates of kashrut
- Interior Ministry's effort to remove the residence permit of a Jerusalem Arab said to have incited violence
- Opposition of the Welfare Ministry against adoption by single sex couples
- The Finance Minister's effort to lower the price of apartments by imposing a tax on the ownership of more than three apartments
- Limiting the confinement that had been imposed on illegal immigrants
- The rights of non-Orthodox religious Jews at the Western Wall
- What's permitted on the Sabbath, including spectator sports, the opening of shops, and public transportation
- Freedom of access to the Temple Mount
The noisiest and most violent responses to the above have come from the ultra-Orthodox. Their opposition to the draft has featured non-lethal violence, i.e., burning trash dumpsters, smashing police cars, throwing bricks and sticks at the cops, closing key roads going through their neighborhoods, then claiming police violence after a confrontation produced injuries among the police as well as demonstrators.
And when some of the few ultra-Orthodox who have joined the IDF go home in uniform, they have been beaten-up by anti-military co-religionists.
The Askhenazi Chief Rabbi has cursed the decision about kashrut, and lots of his subordinates are worried about the economic loss from what had been a monopoly of providing stores, restaurants, and hotels inspectors of kashrut and then provision of certificates that their products are kosher.
Economists are quarreling over the tax on owning more than three apartments. Would it serve to free more apartments for young people to buy? Or would it take away the incentive for investors to acquire apartments which they would rent to young people unable to buy apartments?
Populist politicians are siding with low-income Israelis stuck in poor neighborhoods of South Tel Aviv, where there are several thousand illegal immigrants difficult to send back to African countries that do not want them. The Supreme Court has limited the time that illegal immigrants can be confined in a facility near Eilat. The Africans disturb the locals, sleep on their park benches, steal, threaten, are violent toward one another and occasionally against veteran Israelis. While they cannot work legally, they do the work that Israelis do not want (like illegal Hispanics in American cities). Hebrew-fluent kids of illegal Africans have already made a contribution as Israelis in international sport competitions, and may contribute more to the IDF than the ultra-Orthodox..
Secular Israelis lament the deal by David ben Gurion, in the context of East European ultra-Orthodox losses in the Holocaust, that freed the few remnants in Israel from military service. This has become part of the status quo, as untouchable as US gun owning.
Among the arguments are secular accusations against European rabbis who urged their followers to remain where they were, continuing praying and studying, and to rely on the Almighty for protection against the Nazis.
Right wing politicians are noisily maneuvering to enact a law that will limit the Supreme Court from meddling in what the Knesset has enacted. They're talking about a draft, not yet made public, which will enable a majority to protect a Knesset enactment from Court meddling.
We've been here several times in the past.
Against such a proposal are retired and current Justices, lower court judges, left of center columnists, academics, and activists claiming that the Supreme Court is the essence of Israeli democracy. The same left of center cluster can be counted on to support the Israeli system of providing sitting Court justices a significant role in the appointment of new Justices and lower court judges. Right of center politicians have sought to give themselves more control over the appointment of judges.
From the right we hear that the Court is the monopoly of Israel's left of center, Ashkenazi, educated elite. It's still called the "Rehavia Court" after what had been, years ago, an upper-income Jerusalem neighborhood.
For some time now, that neighborhood has been taken over by the ultra-Orthodox.
The competing claims that the Supreme Court or the Knesset-Government are the essence and guardians of Israeli democracy resembles an American story from the 1930s.
The details are being debated by historians, legal and political scholars, but the general picture is a Court reflecting pre-FDR presidential appointments that rejected one after the other of FDR's New Deal enactments that had passed the Democratic Congress elected along with him in 1932. Then came a presidential proposal to facilitate the work of aged Justices by appointing another 6 Justices to the 9-person Court. The American right and those concerned about the Supreme Court rose in opposition. Then what became known as a "switch in time that saved nine," i.e., the change in position of Justice Owen Roberts, provided FDR with a Supreme Court majority that allowed the President to retreat from a "court packing" proposal that he was having trouble pushing through Congress.
Israel's record resembles the American, not in the details, but in the larger picture of Court flexibility in the face of political pressure.
The most recent example appears in the decision about the drafting of ultra-Orthodox. The Court did not order anything like an immediate or complete change in the exemption, but gave the government a year to come up with a more acceptable enactment.
What that'll be, if anything, will take at least (and more likely more) than a year of time.
Meanwhile, the Israeli way of appointing Justices, which is less overtly political than the American pattern,, has--by some analyses--produced a Supreme Court with a conservative tilt, despite the prominence of what are said to be left-leaning Justices on the appointment committees
So amidst all the noise of what is democracy and which branch of government is its ideal defender, Israel's judicial politics are doing something parallel to what Owen Roberts did in the 1930s.
Call it judicial politics if you will, or paraphrase Shakespeare with the line that politics by any other name would smell as sweet.
שנה טובה מעיר הקודש
Ira Sharkansky (Emeritus)
Department of Political Science
Hebrew University of Jerusalem
Department of Political Science
Hebrew University of Jerusalem