A certain degree of tension between the judiciary and the executive branch is almost built into the democratic system. Prime Minister Yitzhak Rabin clashed with the Supreme Court in 1992 when it forbade him to appoint Shas politicians Arye Deri and Raphael Pinhasi as ministers in his cabinet. Throughout, however, it remained a polite dispute, and Rabin grudgingly acknowledged the court's supremacy. All prime ministers would prefer not having to defer to its decisions, but all have ultimately adhered to Menachem Begin's motto, uttered after being ordered by the Supreme Court to dismantle the first settlement in Samaria, "There are judges in Jerusalem!"
Background: A difference of opinion between branches, not a personal war
The current level of warfare between the two branches, and especially Supreme Court President Dorit Beinisch versus Justice Minister Daniel Friedmann - and as of this weekend Prime Minister Ehud Olmert - is unprecedented. It's not yet total and open war. Ostensibly, these are only minor incidents, and everyone is really on the same side. In reality, however, each of these clashes manages to chip away another bit of the foundation supporting our system of government.
For those involved, it is of course a deeply partisan affair, but for the wider public, including those with a legal grounding, it's becoming more and more difficult to judge either side's motives.
Take the latest fracas between Friedmann and Beinisch. The minister summoned the presidents of the local courts to discuss their personnel needs, and was answered by a joint letter saying that the justices wouldn't come to see him if their affairs weren't coordinated through Beinisch.
An angry exchange of letters ensued, Friedmann accusing Beinisch of intimidating her colleagues while the court's president hit back, saying that Friedmann was acting against the accepted procedure. Whom to believe? Beinisch is the head of the judiciary, and the chief justice traditionally has had a say on these matters. On the other hand, Friedmann is within the law to insist that it's his job to determine the allocation of manpower throughout the justice system.
And why has this deteriorated into a catfight? Is Friedmann simply anxious to uphold the proper division of responsibilities while Beinisch is trying to cling to ill-earned powers that the chief justice never should have had in the first place? Or is she valiantly defending the authority of the court in the face of a vindictive minister bent on seeking revenge against Beinisch for opposing the appointment of his close friend to the bench five years ago? Few observers seem to have much faith anymore in either side.
The same can be said regarding Olmert's remarks on Friday, when he criticized the Supreme Court for its ruling on the Sderot bomb-shelters. Was this an unwarranted intervention into the function of government, yet another case of the excessive "judicial activism"? Or was the court merely fulfilling its role by giving succor to the people of Sderot, deprived of their basic rights and left defenseless for too long?
And can this at all be seen as a principled argument on the importance of the separation of powers, or do we have on the one side a prime minister under multiple investigations trying to erode the credibility of the courts, against a power hungry "mafia" of senior judges? Opinion polls showing continuously plummeting approval ratings for both branches seem to suggest the majority of the public is prepared to believe the worst on either side.
At least when it comes to politicians, their standing was never very high. On the other hand, only a few years back, the Supreme Court, while criticized by a small and voluble minority, still enjoyed wide admiration from most of the public. Its detractors came mainly from the margins of the political system, the far-Right, far-Left and the haredim. Now the Supreme Court is defended by a dwindling constituency, and its fiercest critics are some of the most powerful politicians in the land, not to mention a number of highly respected legal experts.
The blame for this rapid erosion of trust and prestige can't all be laid at Beinisch's door, though not even the court's staunchest defenders will claim that there are any legal giants currently warming the bench in her court. In many ways, she is being forced to pay now for her predecessor Aharon Barak's activism. But he had the necessary stature to take those liberties and get away with it. Barak was probably the closest any public figure in Israel got to being unassailable. Beinisch is not thought to be even in his league, and her own conduct over the years has earned her more than her fair share of enemies.
Ultimately, save perhaps for the grudge Friedmann bears her, most of the attacks aren't personally aimed at her. It is simply her weakness that allows the blows to fall and cause damage. Few politicians in government, even those who have no police investigations hanging over their heads, (and it's been quite a while since we've had one of those) can overcome the temptation to limit the powers of the Supreme Court, but in the quarter of a decade in which Barak and Meir Shamgar ruled the court, it was all but unthinkable.
The way things are going now, it looks as if Beinisch is fighting a losing battle. Her tenure may be the one in which the Supreme Court's power receded.