Israel must curb the imperious Supreme Court – opinion

"Reasonableness” is authoritarian jargon that allows justices to substitute their own sensibilities for law and government decision-making.

Israeli Supreme Court President Esther Hayut and Supreme court Justices arrive to a court session on petitions filed against the proposed government at the Supreme Court in Jerusalem on May 3, 2020 (photo credit: YOSSI ZAMIR)
Israeli Supreme Court President Esther Hayut and Supreme court Justices arrive to a court session on petitions filed against the proposed government at the Supreme Court in Jerusalem on May 3, 2020
(photo credit: YOSSI ZAMIR)
I am a reasonable guy, but I am just about fed up with the Supreme Court. It has gone beyond the limits of “reasonable” intervention in Israeli political and public life with its ever-expanding scope of super-subjective decision-making.
In normal democratic societies there are elected parliaments that set legal norms based on society’s limits of acceptable or reasonable behavior and the communal values that lie behind them. Not so in Israel. We have Supreme Court President Esther Hayut, who follows in the footsteps of former chief justice Aharon Barak.
Barak’s Supreme Court effectively stripped Israeli law of any inherent meaning and created complete legal mayhem. There are no truths, no absolute values, no clear-cut legal precedents. Past legal experience is no guide; political decisions have no intrinsic validity. Anything is “justiciable,” which means that everything from tax to defense policy is subject to the reproach of the High Court of Justice (which is the Supreme Court sitting in judgment of the government).
The whole enchilada is subject to the personal prejudices and individual inclinations of the enlightened members of the highest bench. They hold the gavel and decide according to their own scale of propriety.
The court has developed a series of mumbo-jumbo, infinitely pliant concepts to justify this takeover.
“Reasonableness” is a term that runs like a computer virus through the High Court’s decisions over the past two decades. It is authoritarian jargon that allows High Court justices to elastically apply their own sensibilities; to socially re-engineer Israeli society. In their enlightened image, of course.
“Substantive democracy” is another newfangled term that Barak concocted (as opposed to pedestrian “functional democracy” where the ballot box is supreme). This means the court takes on itself a made-up responsibility to set “substantive” norms and “standards of decency” for public life and to apply “broad interpretations” of the law to fit its own perceptions of “values,” “balance” and “equality” – even if the law books don’t contain any such terms or prescriptions.
Given the current makeup of the court, decisions that employ such supple and flexible principles invariably are skewed in favor the liberal side of the political spectrum.
And thus, the court has ruled in recent years with a liberal fist on allocation of KKL-JNF land, Palestinian residency rights in Israel, rights of foreign converts to citizenship, haredi (ultra-Orthodox) draft deferments and stipends to yeshiva students, commerce on Shabbat and more.
Further back, Barak’s High Court ruled it “unreasonable” to close the Palestinian Authority’s headquarters in Jerusalem, despite the affront to Israel’s sovereignty in Jerusalem occasioned by its operation.
The court ruled it “unreasonable” to compromise and close Bar-Ilan Street in Jerusalem for several hours on Shabbat, despite the fact that a public committee of prominent religious and secular Jews – which was far more representative of Israeli society than the court! – had found otherwise.
Fortunately, both these lamentable court decisions were later circumvented by the government.
The court found it “unreasonable” religious Jews be allowed to pray on the Temple Mount because this would disturb the Arabs and require a massive police presence. On the other hand, the court found it “reasonable” to allow the Women of the Wall to pray in a manner offensive to most worshipers at the Western Wall despite the disturbance involved and the massive police presence require to make it feasible. Get it?
It was “unreasonable” to give distinguished editor Shmuel Schnizter the Israel Prize because of one offensive column he wrote over the course of a sterling 30-year career in journalism. But it was “reasonable” to give Meretz leader Shulamit Aloni the Israel Prize despite a 30-year career which specialized in attacking and offending the religious public.
It was found “unreasonable” that religious-Zionist Jews operate “acceptance committees” to maintain distinctly homogeneous small communities even though is this basic libertarianism, not discrimination. But it is “reasonable” for Bedouins and Arabs to operate “acceptance committees” because they are considered “distinct” and apparently more-kosher communities by the Court.
It was “reasonable” for the Central Elections Committee to ban the right-wing and anti-Arab Otzma Yehudit Party from running in the three last election campaigns, said the High Court. But it was “unreasonable” to disallow the anti-Israel Joint List from running, including some of its openly pro-terrorist candidates, like MK Heba Yazbak and Haneen Zoabi.
So it was again this week when the High Court of Justice struck down the 2017 Settlements Regularization Law as “unconstitutional,” because it impinges on the land rights of absentee Palestinians and mere cash compensation is not sufficient. But it was okay to crush the rights of Israeli Jews and expel them from their homes in Gush Katif with a few pennies of compensation. (The court refused to intervene in that matter).
So it was two weeks ago when the court struck down the latest version of an immigration/deportation law pertaining to infiltrators and refugees. So it may be when the court considers a petition to outlaw the new Alternate Prime Minister position.
So it may be when the court rules on the Nation-State Law of 2018, which was passed as a “Basic Law” – meaning that it was meant as supra-Court constitutional legislation. The court has no right to touch this. Nevertheless, Hayut has convened an 11-justice panel to judge the law’s “reasonableness.”
So it may be when the court rules soon on a petition from a group of professors to terminate all government funding for gender-separate haredi college programs. Accepting the petition would be a disaster for the slow but measurable movement of haredi men and women into the workforce – which is crucial for the Israeli economy and the future of our society.
What’s next? Well, would a decision by the government to extend Israeli law to security zones and all settlements in Judea and Samaria be a “reasonable” decision? How about the opposite decision – to dismantle all settlements? Or a cabinet decision to cut-off relations with the US? Which of these decisions would be “reasonable” and which not? The imperious High Court justices will decide, not the electorate, unless something changes.
I think it would be reasonable for the Knesset to legislate limits on the High Court’s reach; or at the very least, enact an override provision. Don’t you?
The writer is vice president of the Jerusalem Institute for Strategy and Security, jiss.org.il. His personal site is davidmweinberg.com.