Wanted: A more activist Supreme Court

Above the media static, one recognizes that the argument over the Supreme Court is one that touches on the question of identity with which Israeli society has wrestled. Dr. Aviad Hacohen is known to our readers as the legal analyst for Israel Hayom. But Hacohen can also be found in many other places. He is the dean of the Sha’arei Mishpat Academic College, a senior lecturer of law at Hebrew University of Jerusalem, a research fellow at the Van Leer Institute, a member of a number of public committees, and an active attorney who argues cases in both the civilian courts as well as the rabbinical courts.

During our sit-down, he emphasized that he “doesn’t just speak on a theoretical level.” While he teaches and researches law, it is important for us to know that he also “does law,” namely, appears in court. He recently published a compendium of articles and commentary pieces about Jewish law and the weekly Torah portion as well as contemporary legal issues that have been in the news.

Let’s talk about the Supreme Court and the legal system. Let’s start with the heart of the matter. It seems to me superficial to talk only about judicial activism and the opposition to it. There is something deeper at play here.

“If only the court here was more activist. There are areas, like religion and state, where the court has been the most anti-activist in the world. Even when petitioners are correct in their arguments, the court says, ‘You’re right, but cancel the petition,’ or, ‘I won’t issue a ruling.’”

“I was part of the petition against the fence in the middle of the highway in [the ultra-Orthodox Jerusalem neighborhood of] Meah Shearim meant to separate men and women. The police abdicated its policing authority to members of the Edah Haredit! The police cannot evade its obligation by handing over its responsibilities and surrendering part of its authority to a private militia. The court said: ‘You are right, this is totally illegal, but rescind the petition.’ And I wonder, for Heaven’s sake, why should I rescind the petition? Because the court is unwilling to deal with the criticism. They don’t want people saying that the court is ‘a branch of Meretz’ or it’s too activist. That is why it doesn’t strike down laws that perhaps it should. So one can say that the court is the most activist in the world, but only with words.”

The court may not have nullified many laws, but the court has become an arbiter on issues related to values dictated by the norms of “the enlightened public.”

“Since it is not possible to put one’s finger on this ‘enlightened public,’ we are actually talking about the judge who imposes his values that are based on his or her upbringing. Obviously if all judges came from a certain place, they would espouse values that are not accepted across all swaths of society.”

“Professor Gad Tedeschi, who is considered the foremost expert on Israeli civilian law, had three main prot g s: Aharon Barak, Mishael Cheshin, and Yitzhak Englard. All of them made it to the Supreme Court. They were from the same village; they lived in ‘Rehavia,’ which was a code name [for liberal elitism]; they got their education at the same faculty; and all of them are graduates of Hebrew University. Still, they espoused views that were diametrically opposite.”

“It disturbs me that at a time when the U.S. Supreme Court, with a full panel of nine justices, often issues rulings with a 5-4 margin, or a 6-3 margin, our court, with either a panel of nine of 11 judges, will often issue unanimous decisions, or, in the best case scenario, 8-1."

Apropos minority opinions that are publicized, didn’t the Jewish holy texts speak of a prohibition against publicizing the minority opinions so that nobody would know how any of the judges ruled-

“In Jewish law, it was forbidden to reveal which judge ruled in the minority opinion. Because once you belong to a particular body - it’s not just a collegial matter – you could argue so long as a decision hasn’t been made. But once a ruling is announced, you can’t repudiate it and say, ‘I’m the just one, and they are the wicked ones.’ Nowadays, even the rabbinical courts publicize the minority opinions.”

The demand as it relates to the court is not a greater balance of opinions, but rather a demand for greater balance in the composition of the bench.

“The Supreme Court does not have to line up foursquare with the public. That is not the problem. The problem is that the other voices and opinions are not heard with the same resonance that is needed. There is this attitude which holds that the Supreme Court is some legal technician, as if to say whenever there is a disagreement, it needs to be straightened out and values should not be factored into the equation.”

“What you called ‘activism’ is the opening of the gates so as to allow the discussion of diplomatic, political, and moral issues. The question is whether there is room for a legal ruling on the matter. This is a fundamental question. The position that could be taken may be a leftist, arch-liberal position, and still the court could conclude that it is not its role to intervene. The second position, which Barak so eloquently championed, states that the function of the court is to educate. If he views himself as an educator, he will educate according to his beliefs, and not yours. The question is why does this viewpoint prevail while other viewpoints cannot find expression-”

What do you think about the school of thought which posits that Barak views himself as an educator because a horrible disaster [referring to liberal angst at the Likud election victory and the end of Mapai rule] befell this country in 1977-

“I’m familiar with this school of thought. One of its most prominent backers is Professor Meni Mautner. This is correct, but not precise. Members of Knesset petitioned the High Court of Justice in the 1950s. Every once in a while there were one or two petitions per decade. Since the political upheaval in ’77, we have seen a deluge of petitions, most of which are filed by opposition members. But this school of thought is not entirely accurate because MKs from the right also petition the court. It was Aharon Barak of all people who rejected 98 percent of defense and security-related petitions and ruled in favor of the state and the military.”

Yossi Sarid is also a security hawk. So what? If you take the judicial realm as we knew it before the 1970s and compare it to what it has become since, these are two completely different things.

“But this is not dependent on activism, but on two other factors. The first is the nullification of the need for ‘standing.’ Nowadays, anybody can petition the court, even if that person doesn’t have a direct interest in the case. The second thing is the issue of justiciability and the introduction of terms like ‘reasonableness,’ concepts that were nonexistent back then. If you look up the term ‘reasonableness’ before the 1970s, you will learn that it was limited to just a few cases. From the 1980s onward, a term was introduced that enabled one to take a case in many possible directions. What is reasonableness? What constitutes a reasonable judge, a reasonable politician, or a reasonable minister? In fact, what is ‘reasonable’ is what the judge thinks.”

“There are advantages to this, because if you think that the court’s job is not just to solve personal conflicts and quarrels but also to fix society, then it is by means of these terms that you could do whatever you want. It is also difficult to criticize you, since these are terms that are so opaque to the point where the concept of certainty in law has been almost completely lost.”

“This is very problematic. You go to court not having any idea what the outcome of the case will be. The main characterization of the trial is that the individual could use it to guide his or her behavior. Nonetheless, when the Knesset is weak, the system enabled the government to toss the discussion over to the court, where the judges were all too happy to accept this gift. So if you have any complaints, you should take them to the government and the Knesset.”

“Aharon Barak’s greatness lies in his personal fortitude and strength of character as well as in his determination to inculcate his opinions. The same goes for Justice Menachem Elon. Both of these men issued rulings that not only impacted the short term, but their rulings were felt for generations onward. When they wrote, they expressed their desire to educate, to teach theory for generations to come. They weren’t satisfied with just issuing rulings for specific cases. Whoever thinks that the addition of three conservative judges to the bench will change the Supreme Court is mistaken because the judges are likely to change their spots or simply blend in with the rest of their colleagues.”

“Nowadays, there is a lack of judges who hold a unique judicial worldview that deviates from the norm. It doesn’t matter what their opinions are. I’m not talking about a numerical majority, but people who hold vast intellectual sway. Judges nowadays shy away from voicing their opinions in public. It wasn’t always like this. Justice Barak gave hundreds of lectures, as did Justice Elon. Why? Because they viewed their job as one that carried an obligation to the public that went beyond their routine as judges. So if you put ‘other’ judges on the bench just to serve as a ‘counterweight,’ you are doing them a grave injustice. They are likely to be perceived as ‘the token Mizrahi’ or ‘the token religious judge.’ [Noam] Solberg has been my friend for many years, and I was very happy that he was nominated to the bench, but it wasn’t because he belonged to a certain constituency. Rather he was picked because he is a good judge and because he is a man blessed with humility and integrity.”

“I’m very concerned about the social criticism. How could it be that no jurist is capable of finding a solution to the problem of agunot (whereby a man refuses to grant his wife a divorce, thus forcing her to remain in an unwanted marriage)? Either there are no judges with vision who are capable of seeing beyond a specific ruling, or someone is working behind the scenes to silence those with moderate opinions. In a country of 7 million prime ministers, how could one explain the ‘one voice syndrome’ that has overtaken the courts-”

In your book you make reference to the biblical demand that judges not be influenced by popular opinion or the Zeitgeist.

“I fear that there are judges who aren’t sufficiently courageous. Some of them have a tendency to try and be ‘okay’ with everybody. Once you are in a court, your job is to rule, to take a stand, whether it is accepted or not. The court is not a mediating body nor is it an institute charged with finding a national compromise. It needs to decide.”

“One thing that worries me is that Jews are not permitted to pray on the Temple Mount. There is a huge gap – one which has been in existence for over 20 years – between the court’s rhetoric on the issue of human rights, freedom of expression, and freedom of religion and the reality on the ground. You can’t talk about freedom of expression and freedom of worship, while at the same time completely prevent every Jew from praying on the Temple Mount.”

“Obviously, it is one of the most sensitive places in the world, and I don’t discount the security sensitivity, but to the same extent that I fought the election committee against the disqualification of the Balad party – not because I agree with their opinions but I will fight for their right to run for Knesset – if you are truly a democrat, you cannot speak of freedom of worship while at the same time denying Jews the right to pray on Temple Mount. It screams to high heavens!”

Let’s talk about the recent ruling regarding the Citizenship Law. At the root of the matter, the ruling touched on something that wasn’t discussed publicly, and that was the demographic argument.

“Without a doubt. It also touches on the Law of Return, the right of return, and the character of the state of Israel. But in the ruling the judges tended to run away from the claim regarding [the preservation of] the Jewish character of Israel. I can respect the opinion which states that Israel doesn’t need to be the state of the Jewish people, even if I don’t agree with it and I will fight this opinion to the end. The term ‘Jew’ appears in the Declaration of Independence many times while the world ‘democracy’ is not mentioned once, and this is no coincidence.”

“When you read the legal opinions written by the 11 judges, with the exception of two justices, [Elyakim] Rubinstein and [Hanan] Melcer, the others barely touch on their opinions as to whether they are for or against this issue. Instead, they just ignore it. There is no doubt that the question of Israel’s character as a Jewish state was on trial here. So why don’t they talk about this? In order to put a happy face on these things and to avoid a confrontation? There’s a sense that there is something not candid in the written legal opinion. They don’t put the real issues on the table.”

Anybody is free to file a petition. Perhaps this is the problem, the hyper-judicialization of our lives.

“That is a whole other issue, and this is certainly a malady that is not the fault of the Supreme Court. Everything in Israel eventually reaches a trial. We have forgotten that there is politesse, morality, values, codes of behavior, education. Having said that, there is a problem related to the court – not necessarily on political issues – and that is opening the gates in all directions. The court is being choked by an abundance of cases. The solution is not to shut the gates entirely, but rather more effective and larger filtering mechanisms that would examine each case on its own individual merits.”