Opponents of the Barak Court may have a new ace in the hole that they can draw on - the Roberts Court.
By DAVID FLATTOroberts 88(photo credit: )
Distracted by the dramatic overhaul in leadership in the Middle East, most Israelis are paying little attention to developments in their Supreme Court. Yet, noticed or not, significant adjustments are reshaping an institution that has become a formidable force in the social and political arena. Beyond the obvious personnel changes and a volatile political climate, a more subtle and seemingly coincidental factor may enable a much larger transformation in the Israeli Supreme Court's judicial philosophy: the parallel transitions taking place in the US judiciary.
Justice is in flux on both sides of the Atlantic. Washington has recently completed its nominations, producing a younger Supreme Court led by a new chief justice, John Roberts. Meanwhile in Jerusalem, veteran Justice Mishael Cheshin's departure reduces the number of Supreme Court justices to 11, and the retirement date of legendary Chief Justice Aharon Barak is quickly approaching.
Although the past orientation of the Israeli Supreme Court has been bluntly clear, its prospective direction in this chaotic atmosphere is less certain. Even as its influence has reached new heights, it faces an increasingly emboldened opposition. Moreover, opponents of the Barak Court may have a new ace in the hole that they can draw on: the Roberts Court.
What does the Roberts Court have to do with Israel's future? Potentially a great deal. The extensive influence of the US on Israeli policy is usually attributed to America's executive and legislative branches. Yet the judiciary plays an important, if less direct, function in shaping Israeli life as well. Its influence can increase, if harnessed by conservative and moderate Israeli jurists.
In recent decades, American constitutional law has become increasingly relevant to Israel because of the bold jurisprudence of Justice Barak. In order to appreciate this evolution, one must recall certain highlights of Barak's "constitutional revolution" (a phrase Barak himself memorably coined).
Despite an initially limited role, Israel's Supreme Court has emerged as a powerful institution under his watch. For example, in 1986, the Barak Court made a sweeping declaration that any citizen can claim that the government violated the "rule of law"; and in 1992 the Basic Laws were expanded to formally recognize certain fundamental rights.
Buoyed by these developments, Barak proceeded to safeguard these rights even further, notwithstanding legislation that allowed their infringement for a "proper purpose" advancing the "Jewish and democratic" values of the state.
In a seminal ruling, Barak marginalized the possibility of infringement under this provision by interpreting the phrase "Jewish state" as actually "identical [with] the democratic nature of the state," as defined by "the enlightened community."
COMMENTATORS quickly understood this to mean that the new rights were virtually guaranteed as long as they comported with the court's own, liberal, intuition.
With no foundational text and little binding precedent, the Barak Court frequently found itself navigating in open terrain when defining these expanded rights.
But rather than proceeding cautiously, it felt empowered by an open charter to broadly formulate constitutional privileges. And given their broad discretion, the Barak Court looked for guidance, seeking to be "enlightened" by foreign law, especially that of the United States.
Consequently, America's First Amendment case law informed Israel's freedom of speech law; the Fourteenth Amendment Equal Protection Clause supported the rights of Israeli Arabs; and the standards of due process led to analogous protections in Israeli courts.
Successfully leveraging its activist posture and reliance on international constitutional law, the Barak Court has become a dominant force in Israeli life.
Nevertheless, in recent years its activist orientation has come under increasing fire from politicians, academics and jurists. Barak's opponents are hoping to seize upon the new vacancies as an opportunity to alter the nature of the court. In a particularly heated standoff, they have promoted the Supreme Court nomination of Hebrew University professor Ruth Gavison, an outspoken opponent of Barak's activism.
In the short term, Israel's idiosyncratic rules for judicial appointment - where selections are made by a committee of justices and lawyers and the chief justice is appointed by seniority - limit the likelihood of Barak's opponents joining the judiciary. Moreover, Barak has left such an indelible imprint on the curt that it is virtually certain to advance his approach.
THE LONGER term prognosis, however, is less clear. Although opponents of Barak will neither succeed in reconfiguring the court nor in thwarting the constitutional enterprise he began, they may affect the court's substantive doctrines in another way - by monitoring the foreign law that shapes the court's jurisprudence in the future.
The Roberts Court's legal doctrines may provide a substantial counterweight to the Israeli Supreme Court's liberal disposition.
To be certain, although the Barak Court has, up to now, frequently looked to the US for constitutional guidance, it has done so selectively. True to its liberal orientation, and capitalizing on the open-ended nature of its enterprise, the court has eclectically relied on an assortment of American, Canadian and European law. As the US Supreme Court moves to the right, Barak's devotees may wish to look elsewhere going forward.
However, capable advocates for more moderate rulings may be able to hold Israel to the "enlightened," democratic values of its leading ally. Substantive legal analyses emerging from a moderate American judiciary could provide the jurisprudential basis for a legally coherent alternative statement of fundamental rights.
Take one particularly divisive issue that will likely reach the Israeli Supreme Court in the coming years: gay marriage. Israel's judiciary has a history of progressive rulings concerning gay rights, including entitling an El Al steward to share a companion ticket with his gay partner (1994), granting inheritance rights to a gay partner (2004), and allowing a lesbian couple to adopt each other's children (2005).
Accordingly, the liberal, activist court may be inclined to recognize gay marriages of couples who married abroad - notwithstanding the fierce opposition - by relying on legal precedents from Holland, Belgium and Canada.
The opponents of gay marriage will be more successful in swaying the court if they buttress their religious and political objections with a cogent legal argument advanced on Barak's own terms: pointing to the (probable) refusal of other democratic regimes to recognize such marriages.
Ironically, then, the Barak Court's method of jurisprudence (turning to foreign law for guidance in actively formulating the fundamental rights of Israelis) may ultimately prove beneficial for conservative and religious parties who are among Barak's leading adversaries. For even if the values of the "Jewish state" do not translate into traditional Jewish values (as Barak insists), they still may translate into the moderate democratic values of the Roberts Court, which can trump - or at least keep in check - the liberal proclivities of the Israeli judiciary.
The writer, a rabbi and lawyer, is currently pursuing a PhD in the Department of Near Eastern Languages and Civilizations at Harvard University.
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