Restoring the pre-Aharon Barak juridical culture of restraint is a necessary process.
Published in The Jerusalem Post, January 27, 2023; and Israel Hayom, January 29, 2023. Print-friendly copy
Judging by the fiery tone of discussion regarding the Netanyahu government’s plans for modification of the judicial system (which the opposition tempestuously is calling “the end of Israeli democracy!”), it is clear to me that many people don’t know or understand the relevant background to the reform plan.
A refresher is necessary on why the government considers Israel’s Supreme Court too powerful, essentially a runaway court.
The reason is that the court effectively has debilitated the executive and legislative branches by audaciously arrogating to itself unparalleled powers, while also yanking Israel’s politics and diplomacy to the ideological hard left-wing.
The trouble started when Justice Aharon Barak joined the Supreme Court more than 40 years ago, becoming its president in 1995. Until then, Israel appropriately had an independent judiciary which served as a check on government power while avoiding judging the substance of administrative actions, intervening only when a government agency exceeded its legal authority.
But within ten years, Barak promulgated an entirely new world of jurisprudence for Israel which empowered a judicial-bureaucratic complex to veto government policies based on Barak’s very personal progressive worldview.
Already in 2014, Prof. Moshe Koppel, chairman of The Kohelet Forum, called-out Barak for judicial overreach, for discarding all common and logical limits of juridical review as practiced in most Western democracies. (See Koppel’s landmark article, “Israel’s Imperious Judiciary,” in Mosaic Magazine.)
Courts themselves must be kept in check, because unlike elected officials they are typically not answerable to voters. Thus, when judges invalidate some state policy, they are in effect, if indirectly, overruling a choice made by the citizens themselves. For this reason, modern democracies impose constraints both on the kinds of disputes the courts may address and on the specific ways they may resolve those disputes.
In his initial revolution, Barak broadened the grounds on which courts could intervene in state policy and then eliminated two crucial limitations – in legal jargon, “standing” and “justiciability” – on the sorts of cases they could hear.
In 1981 Barak ruled out of nowhere that even if a state agency’s criteria for determining its policy were relevant and lawful, but in the court’s subjective opinion the agency nevertheless failed to “give each of the relevant considerations appropriate weight,” the court could invalidate the policy as “unreasonable.” In plain English, it could invalidate any policy it didn’t like.
This opened the floodgates to judicial second-guessing of all sorts of state policies, no matter how beneficial and substantial, or picayune. In short order, the courts invalidated decisions regarding the placement of sidewalk tables at cafés, nursery-school subsidies for self-employed mothers, the location of a soccer stadium, the scope of farm subsidies, the worthiness of prize winners, and more.
Barak also dropped any limitations on “standing,” meaning that any petitioner could henceforth bring a case before the court even if he was not directly harmed by the law or policy he was challenging. After dispensing with the requirements for standing, Barak also decreed in 1986 that “every instance of a decision by a government agency, even “going to war or making peace,” was justiciable.
He then declared his abolition of both standing and justiciability as established jurisprudence!
Freed of all constraints, the court hubristically turned to addressing security issues like challenges to military tactics, the placement of the separation barrier near the Green Line, and deals involving prisoner releases.
And then Barak’s Supreme Court began to weigh in on the worthiness of government officials. In the Deri-Pinhasi case of 1993 (two senior officials of the Shas party who were indicted on corruption charges), Barak’s court expanded the authority of the legal bureaucracy at the expense of the legislative and executive branches by declaring that the attorney general was the “authorized interpreter of the law with regard to the executive branch,” and was under no obligation to defend the policies of the government.
Barak decreed that elected officials would be bound by the views of legal advisers ostensibly subordinate to them, and the government and its ministries were not free to choose their representation in court but would have to make do with bureaucrats assigned to them by the attorney general’s office.
Each of these two principles, unparalleled in democratic nations, precisely has had the chilling effect on governance that one might expect, especially when combined with the court’s effective control over judicial appointments and the power it granted itself to block appointments of which it does not approve.
And once the high court conflated its vague and subjective notion of “unreasonableness,” i.e., something not to the court’s moral or other liking, with illegality, the legal bureaucracy followed suit.
Today, it is sufficient for a ministry legal adviser to declare some proposal “unreasonable” (or even “unsuitable,” or “inappropriate”) to kill it. Similarly, government officials themselves can be disqualified from office on bogus grounds by attorneys general and their subordinates, which happens routinely. This allows the legal-judicial bureaucracy to nix government policymaking in the bud – even before it can reach the courts.
Koppel cites dozens of cases in which Barak’s court and his legal subordinates across all ministries have monkeyed at will with government policies, straying far from core principles of law into the realms of self-proclaimed values and morals, and with punishing left-wing bias.
For example, a deputy attorney general for years held up operation of the Tel Aviv-Jerusalem train line because 350 meters of track crossed the Green Line. He insisted on “compensating” Palestinians with a new highway serving Palestinian transit from Hebron to Gaza. Since when is such policymaking and specific development trade-offs an attorney general’s purview?!
In 2017 the High Court of Justice struck down the Settlements Regularization Law as “unconstitutional,” because it impinges on the land rights of absentee Palestinians and mere cash compensation wasn’t sufficient, according to the court – even though this is accepted practice everywhere in the world when homes already are standing.
But it was okay by the High Court to crush the rights of 10,000 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, except after the fact to increase the compensation given to those expelled).
The High Court ruled that the Central Elections Committee (CEC) could ban the right-wing and anti-Arab “Otzma Le-Yisrael” party from running for Knesset, across a series of election campaigns. But it repeatedly overruled the CEC to allow the anti-Israel Joint Arab List to run for Knesset, including some of its openly pro-terrorist candidates like Heba Yazbak and Hanin Zoabi.
It found Religious Zionist towns which operate acceptance committees to maintain distinctly homogenous small communities to be unlawfully discriminatory, even though this is basic libertarianism, not discrimination.
But according to Barak’s court it was not discriminatory for Bedouins and Arabs to operate such neighborhood acceptance committees because Arabs are considered “distinct,” and their separate communities apparently are more-kosher by the Court.
It found Jewish National Fund land allocation policy in the Land of Israel to be discriminatory in favor of the Jewish People (Heavens forfend!) and therefore illegal. It found anti-BDS laws that punish boycotters and block the entry to Israel of foreign boycott activists to be “extremely unreasonable,” and therefore unlawful.
Extremely unreasonable according to what criterion? Well, according to gut feelings of the freed-from-all-real-standards-of-law and the hard-left-leaning justices of the court – almost all who were hand-picked by Barak himself.
And the list of such over-interventionist, jaundiced, and partisan High Court decision-making goes on and on.
Until Yariv Levin (the new justice minister) took office, Israeli politicians have been afraid of the long arm of the judicial bureaucracy, which can punish them for challenging its authority.
Israeli politicians also know that driving change will be a hard slog. After all, the court may reject as “unreasonable” any reforms to the court itself, using their own slippery and subjective scale of propriety. And furthermore, the court and its defenders automatically tar-and-feather anybody attempting reforms of seeking to “politicize” the court.
On the other hand, the court and its defenders absurdly aver that prosecutors, legal advisers, and Supreme Court justices are completely neutral, free of personal and political-ideological interests, and committed only to the cause of pure justice – right?
But as detailed above, it is hard to accept that assertion when considering the grand sweep of court decision-making over the past 40 years.
Alas, generations of Israeli law students have been taught Barak’s doctrine as gospel – that it is their sacred duty to rescue public policy from the clutches of democratically-elected officials who wish to “politicize” it. Thus, restoring the pre-Barak juridical culture of realism and restraint will be a long process.
Law students will need to be reintroduced to now-heretical ideas regarding representative government and limited bureaucracy, presumably by studying non-Israeli scholarship on the topic.
In the meantime, Yariv Levin’s courageous attempt to start a process of reimposing juridical realism and restraint is to be lauded. It isn’t “antidemocratic” to think Israel’s Supreme Court needs democratic checks on its audacious power.
Not all Levin’s proposals are calibrated perfectly (such as the proposal for an override of the court with 61 votes in parliament, which is overreach by the Knesset), but his moves are meant to repair and strengthen, not undermine, Israeli democracy.
Instead of boycotting Knesset deliberations in this regard, taking to the streets with poisonous sloganeering, trafficking in scare tactics of democratic and financial ruin, inviting foreign economic disinvestment from Israel, and rallying foreign opposition to the legal reform initiative – responsible Israeli opposition leaders should be engaging the judicial reform proposals of Netanyahu and Levin with the serious attention they deserve.
Read my previous op-ed column on this topic Judicial reform is reasonable and right. (Jan. 13, 2023)