Grunis’s restraint

Grunis’s moderate approach will best ensure that the court remains a respected and honored institution.

Supreme Court Justice Asher Dan Grunis 370 (photo credit: Courtesy Supreme Court)
Supreme Court Justice Asher Dan Grunis 370
(photo credit: Courtesy Supreme Court)
Justice Dorit Beinisch will be stepping down Tuesday as Supreme Court president at the age of 70. Does this mark the end of an era of judicial activism begun by her predecessor and mentor, former president Aharon Barak? Undoubtedly, incoming president Justice Asher Grunis favors more judicial restraint than his predecessors Barak and Beinisch.
In a number of rulings, Grunis has shown an aversion to judicial activism. Just last week, Grunis dissented from the High Court of Justice’s majority decision against extending the Tal Law, which legislated exemptions from military service.
Grunis, in a lone opinion, held that the court had no business interfering with an issue that should be left up to democratically elected lawmakers. Part of Grunis’s reasoning was practical. The incoming president rightly argued that the highly volatile issue of haredi draft-dodging, which has sparked heated debate for decades, would not be solved by a single court ruling. But Grunis also based his decision on the more fundamental belief that the court should limit judicial review of legislation to a minimum.
Grunis used the same sort of judicial restraint in additional cases such as in last week’s High Court decision not to strike down the Disengagement Pardons Law, which exonerates right-wing activists from all but the most violent crimes perpetrated during demonstrations against the dismantling of settlements in the Gaza Strip and northern Samaria.
In January, Grunis ruled in favor of upholding the Citizenship and Entry Law, which restricts the right of Palestinians married to Israelis receiving Israeli citizenship. In both these cases, Grunis shared the majority opinion.
Grunis is also in favor of doing away with a legal innovation first initiated by Aharon Barak in the mid-1980s when Meir Shamgar served as Supreme Court president. In Barak’s creative jurisprudence, any citizen may ask the court to block action by the government even if the citizen is not personally affected by it and therefore lacks “standing.”
Allowing anyone to preoccupy the court with frivolous petitions “which must be addressed posthaste,” wrote Grunis in a May 2011 decision that rejected a request to disqualify a recipient of the Israel Prize, “robs the court of valuable time and forces it to put on hold scheduled cases which ought to be accorded priority.”
In large part due to the fact that almost anyone can petition almost anything, the High Court has been flooded with petitions. Approximately 10,000 petitions are brought before the court every year, about half of which are discussed. For the sake of comparison, the US Supreme Court – which serves primarily as an appeals court and restricts itself to hearing only petitions from individuals with “standing” – deals with about 80 cases a year.
It is not immediately clear what kind of influence Grunis will have on the Supreme Court’s rulings in the future. His ability to hand-pick panels of judges to deal with particularly sensitive cases is limited. Court tradition dictates that a judge’s seniority, not his or her opinions, decides the formation of panels – whether these be the typical three-judge panels or expanded panels chosen to deal with more contentious cases.
But if Grunis does manage to have an impact, say by virtue of his personal leadership qualities, we believe it would be a positive development. By exercising judicial restraint and by restricting the right to petition the court to those with “standing,” Grunis might succeed in alleviating the court’s heavy work load, thus speeding the judicial process. Also, by recognizing that not everything can be ruled upon judicially, the Supreme Court will force our lawmakers to deal with the most controversial issues and make the decisions they were voted into office to make.
There will always be a need for judicial review. Tolerance, pluralism and respect for minority rights must continue to be protected by the Supreme Court. There is always a danger that a “tyranny of the majority” will trample the rights of those who are not properly represented in our political system.
But the Supreme Court’s strength and legitimacy is best protected when exercised with restraint and when judges are not perceived as partisan or politically motivated. Grunis’s moderate approach will best ensure that the court remains a respected and honored institution.