Analysis |

Israel's New Supreme Court Justices Won't Easily Defy the Government

The political majority’s representatives want an anemic court, and one that won't place any obstacle in their path. They likely won't show much judicial independence

Interior Minister Ayelet Shaked, Justice Minister Gideon Sa'ar and Supreme Court President Esther Hayut at a meeting of the Judicial Selection Committee, on Monday.
Interior Minister Ayelet Shaked, Justice Minister Gideon Sa'ar and Supreme Court President Esther Hayut at a meeting of the Judicial Selection Committee, on Monday.

The selection of four new Supreme Court justices shows that the “change government” has indeed brought change, though on the face of it, the change is still quite limited. The government brought change in the sense that it halted the crude “Shaked-ization” that characterized the Netanyahu government, which took the form of seeking to appoint justices “from our side” who would always be ready to assent to the actions of the government and Knesset. Had four such justices been appointed, this would have dramatically altered the Supreme Court and turned judicial oversight into pure fiction.

This did not happen, but the distance between the justices who were selected and the scenario that did not come to pass is not all that great. It's not so surprising, considering that a majority of the political representatives on the committee (with the exception of MK Efrat Reiten) are right-wingers, and members also include Interior Minister Ayelet Shaked and MK Simha Rothman, whose agenda opposing the court’s power is well-known.

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There is a heavy cost to having politicians sit on the judicial selection committee, even if their participation is for the purpose of lending the court legitimacy. The representatives of the political majority – and as in the present case, often of the opposition as well – are interested in having a court that is as anemic and bland as possible, one that will not place any obstacle in their path. As the populist trend in government and the ideological trend in policy grow, so does the desire for a court that won’t interfere. It is not the good of the institution or the public that they seek, but that of their rule, in the narrowest sense. In the wake of the amendment that was put forward by Justice Minister Gideon Sa’ar requiring a majority of seven out of nine members of the judicial selection committee for the Supreme Court, the coalition majority has veto power (as do the Supreme Court justices if they are not unanimous in their opinion). Therefore, the power of the coalition majority in judicial selection has increased, as has the problematic motivation described above.

Apparently still intact is the veto on candidates who have a clearly liberal profile or who, heaven forbid, once worked for “the enemy of the people” as they see it – former Supreme Court President Aharon Barak. Evidently candidates like Professor Shahar Lifshitz of Bar-Ilan University, Professor Yoav Sapir of Tel Aviv University (who until recently was the chief public defender) or Judge Yigal Marzel, who was Barak’s protege, never stood a chance.

This is a badge of shame for the country, when commitment to human rights and equality immediately disqualifies someone from serving on the Supreme Court, an institution whose raison d’être is to protect human rights even when a political majority seeks to infringe upon them. From this standpoint, a substantial change has occurred in the distinction between left and right in Israel. In the past, when the Israeli right was liberal, political affiliation (right or left) was not an important consideration in filling seats on the Supreme Court. However, in recent years, with the right having largely become nationalist-populist, illiberal or anti-liberal, it has become a critical factor.

Not one of the newly selected justices has expertise in the field of public law. So there is no way of knowing whether or not they are liberal in their judicial outlook. Experience as well as logic indicates that to display judicial independence towards the government when it is called for, it is easier and more natural for someone who is an expert in public law to adopt a critical and well-supported position versus the government. When justices who lack such expertise are selected, the likelihood of that happening is reduced.

One factor in this is the relatively brief terms of seven to 10 years for which the new justices were selected. It takes time to adjust to the role of Supreme Court justice, to consolidate an overall judicial philosophy in a forum that is also the highest court of appeals in all areas of the law for which its decisions shape the law, in addition to the court’s special role in administrative and constitutional law. It also takes time to acquire full independence and confidence. By the time this judicial maturity has been attained, not much time is left until the end of the justices’ tenure. In this way, the government ensures some degree of peace for itself from the court.

Our Supreme Court is unique in terms of the workload it is given. This is because it is the court of appeals to which anyone who challenges a verdict that was initially handed down in District Court turns, even if the appeal has nothing to do with a new or difficult legal question. It therefore appears necessary to establish a separate court of appeals, as has been proposed in the past, to hear all of these cases. The justices who were selected today for the Supreme Court would be absolutely suitable to serve on such a court. The problem is that the politicians would rather have a court that is suffocating under an unbearably heavy workload than one that is constructed in a more rational way and afforded the conditions to be able to operate quickly and efficiently. Another concern is that if the Supreme Court were to become primarily an administrative and constitutional court, the motivation to undercut it by appointing justices who will support any government action would increase even more.

Supreme Court justices, clockwise from top-right: Chaled Kabub, Gila Canfy-Steinitz, Yechiel Kasher and Ruth Ronnen.Credit: David Bachar, Ofer Vaknin.

If the politicians on the committee did their work with the required thoroughness, presumably they made certain that the new justices are not expected to make any trouble regarding Israel’s conduct in the territories it holds – an area where Israel is violating international law systematically and with mounting intensity. Make no mistake: Despite the claims about the apolitical nature of these positions, someone who would not be expected to go along with these violations of international law would never be appointed to a senior position in public law in Israel.

The appointment of the first Muslim justice is certainly praiseworthy, although a single Arab justice is obviously not enough. Moreover, a disturbing judicial practice has developed in which, on fundamental issues of equality, the Jewish majority leaves the Arab justice in striking isolation, as also happened recently regarding the nation-state law. An absence of justices, like the late Edmond Levy, whose hearts are open to society’s weaker groups and their special problems, can still be clearly felt. If there is a genuine desire to bolster public trust in the court, this shortage must be addressed.

Inner intellectual independence, which is vital to judging that is worthy of the name, is not so easily found. It is particularly hard to develop in an atmosphere of growing populism, political attacks on the court and with positions that favor inequality being widespread among the public. Nevertheless, there is no reason to despair of seeing it. The chronicles of Supreme Court appointments are filled with examples of justices who behaved contrary to the expectations of those who appointed them. Here’s hoping that the four new justices will prove that they are independent of the government and committed to justice and justice alone. It is in their hands.

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