Judicial activism’s main victim is the court itself

Rulings that can’t be enforced reduce the court to an impotent political actor.

Tal Law Protest 311 (photo credit: YouTube Screenshot)
Tal Law Protest 311
(photo credit: YouTube Screenshot)
Advocates of judicial activism all too often overlook its significant costs – not only to society, but to the judicial system itself. Last week’s High Court of Justice ruling overturning the Tal Law, which governs draft exemptions for yeshiva students, is an object lesson in both kinds of costs.
This was a blatantly activist decision: The court overturned a law duly enacted by parliament on the grounds that it violated a right to “equality” which not only exists nowhere in Israel’s quasi-constitutional Basic Laws, but was deliberately omitted from them. Certainly, the court is correct in deeming equality one of the state’s fundamental values. But what the Basic Laws’ drafters understood is that when people from diverse religious, cultural, ethnic and linguistic backgrounds are thrown together in the pressure cooker of a tiny country permanently at war, the overriding need to enable them to somehow coexist without an explosion sometimes requires messy compromises that fall short of the rigorous standard of equality implicit in a constitutional right.
The ruling could also have profoundly negative social consequences, as last week’s Jerusalem Post editorial correctly noted. In recent years, for the first time in decades, thousands of Haredim have voluntarily left yeshiva to do army service and/or attend college. Israeli society clearly has a compelling interest in encouraging this trend; voluntary integration is preferable to either non-integration or forced integration. Yet if Haredim come to feel besieged by a hostile secular establishment, they may respond by circling the wagons and halting this trend toward integration. And the court’s ruling could easily create such a feeling.
But if the ruling’s societal harm is as yet merely potential, the harm it has done the judiciary is already clear and present. Nobody understands this better than incoming Supreme Court President Asher Grunis, whose dissent succinctly explained the problem: “This court’s repeated involvement in the issue of drafting Haredim, without any real progress being made as a result of this judicial intervention, assuredly doesn’t contribute to the court’s stature.” 
The court first ruled draft deferrals for yeshiva students illegal in 1998. Four years later, the government finally responded by enacting the Tal Law, which perpetuated the deferrals in a slightly different guise. The court then heard several petitions against this law, criticizing it with escalating vehemence each time, and finally overturned it last week. But despite all these rulings, most yeshiva students still don’t serve – and that will remain true after the latest ruling as well. It’s not that most Israelis wouldn’t love to see yeshiva students drafted. But they aren’t prepared to have the police forcibly draft the Haredim, to put tens of thousands of yeshiva students in jail, or to cope with large-scale Haredi protests. And therefore, it simply won’t happen.
To say this “doesn’t contribute to the court’s stature” is an understatement. When the court issues rulings that are ignored because they can’t feasibly be enforced, it undermines the court’s stature, reducing it to the level of just another political actor – no different from any run-of-the-mill Knesset member whose pronouncements may or may not actually affect policy.
Nor is the Tal Law ruling exceptional in this regard: In recent years, the court has issued many such rulings.
Take, for instance, its 2007 ruling ordering the government to reinforce every classroom within rocket range of Gaza. The court was certainly correct that governments are obliged to protect their citizens, and that successive governments had punted on this obligation. Nevertheless, the question of how to protect Gaza-area residents has many possible answers, and reasonable people of goodwill may disagree about which is best. Perhaps instead of reinforcing every classroom in rocket range – a never-ending project, since the rockets’ range keeps expanding – we should instead reoccupy all or part of Gaza? Launch periodic smaller-scale operations like Operation Cast Lead? Threaten to kill Hamas leaders if the rocket fire doesn’t stop? These are precisely the kind of policy decisions we elect governments to make, and for the court to usurp the government’s prerogative by imposing its own preferred solution was judicial activism par excellence.
But aside from being activist, it proved patently unfeasible. Reinforcing all those classrooms would cost billions of shekels, and the government can’t produce those billions without harming other important goals. Should it, for instance, slash welfare allowances, hurting society’s worst-off? Cut training for army reservists, thereby risking a repeat of the Second Lebanon War debacle? Let the deficit balloon, imperiling Israel’s credit rating? Faced with these unpalatable choices, the government’s decision was almost inevitable: It opted to allocate its limited funds to the goals it deemed most important (after all, setting budgetary priorities is one of the government’s core responsibilities) and postpone the reinforcement.
At bottom, the court’s activism reflects a profound contempt for the often messy workings of representative government. Outgoing Supreme Court President Dorit Beinisch made this clear in responding to another Grunis argument: that the court’s job is to protect minorities, not to keep the majority from giving minorities excess rights. After correctly noting that yeshiva draft exemptions have survived largely because of the constraints of coalition politics, in which parties are forced to make concessions on some issues to win their partners’ support on others they deem more important, Beinisch concluded: “Under these circumstances, it’s hard to determine what reflects the majority’s will and what is compulsion.” Translation: Policies set by the people’s elected representatives don’t actually reflect the people’s will, so she is free to replace them with her own preferred policies.
But sacrificing a lesser goal to achieve a greater one isn’t “compulsion,” it’s an essential part of representative government. Indeed, such compromises are precisely what enable all of Israel’s various subgroups, with their competing wants and needs, to somehow coexist.
The irony is that in seeking to replace the constraints of representative government with a Platonic guardianship run by themselves, the institution to which Beinisch and her fellow activists have done most harm isn’t representative government, but the court itself. For they have thereby degraded it from the ultimate arbiter of the law into just another political actor, whose pronouncements can be freely ignored.
The writer is a journalist and commentator.