The American Outsider Who Saved Israel's Supreme Court

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Credit: יעקב סער / לעמ

Israel, 1948. The last remnant of the British government left on May 13.

On May 14, at 4 P.M., David Ben-Gurion proclaimed the establishment of the State of Israel and read out the Declaration of Independence.

On June 22 at 12:30 A.M. the arms ship acquired by the Irgun reached the shores of Tel Aviv. The graves from the Independence War were still being dug, the state was on the brink of civil war and the smell of gunpowder hung in the air.

On September 14, a small group of people gathered in the Russian Compound in Jerusalem: Justice Minister Pinhas Rosen, Attorney General Yaakov Shimshon Shapiro and five Supreme Court justices, handpicked by Ben-Gurion. All were Ashkenazi males, loyal to the Mapai government or its satellite parties, the General Zionists, the Progressives and the like. To placate the religious parties, Rabbi Simcha Assaf had also been appointed a justice, thus inaugurating the “religious seat.” Many years later, the Mizrahi seat would also be inaugurated, and the women’s seat and the Arab seat. Maybe one day in the future we’ll have the LGBT seat as well.

The door of the building that had been leased from the Russian Orthodox Church was locked. The fellow with the key didn’t show, so Justice Moshe Smoira opened the door with a roundhouse kick. Thus, in Hall A, the establishment of the Supreme Court was declared, with Smoira as its president. Ben-Gurion wasn’t there. He attached no importance to the Supreme Court. A few days later, on September 26, the Israeli national soccer team lost its first international match against an American team at the Polo Grounds in New York. President Smoira’s power kick was sorely missed, but he was already immersed in his work.

For a few months, the Supreme Court operated in its original composition, which tried its best to please its patrons and feared that it would be fired. The law granting judges independence had not yet been enacted. Accordingly, the Supreme Court ruled that the establishment of the Israeli state did not invalidate the Defense (Emergency) Regulations promoted by the British monarchy. Those regulations granted the government undemocratic powers to place people in administrative detention (arrest without trial) on the basis of classified information, to demolish houses, to deport people. In addition, judgments were handed down stating that the pre-state underground militia Lehi could be declared a terrorist organization, its activity banned and its property confiscated.

What really took the cake was the Supreme Court’s approval of the seizure of a private apartment at 2 Chen Boulevard, in Tel Aviv, so that Attorney General Yaakov Shimshon Shapira would have a place to live.

And then, one rainy evening in December 1948, police officers at the detention facility in the Russian Compound noticed a cloud of dust rising up from a corner of the building. The cloud concealed a small, one-person spaceship that had made a landing in absolute silence. Out of the dust emerged a tall, thin man wearing a dark suit and smoking a pipe. A slight aroma of tobacco wafted through the air. He entered the Supreme Court building, went up to the third floor, and convened the justices.

“Learned gentlemen, we have noticed that you are not aware of how much power you possess, that you are afraid of the politicians who appointed you. Your power lies in the moral advantage you have, in the truth that stands by your side.”

“Who is ‘we’?” asked court president Smoira.

“Our name will be meaningless to you, it consists of letters and numbers and marks you have never seen. But we were given the task of overseeing you, so I came. Call me Shimon Agranat. Among yourselves you can call me the Traveler.”

Indeed, the next day it was learned that another justice had been appointed to the Supreme Court, Shimon Agranat by name, who – in contrast to others on the bench – wasn’t close to the country’s ruling hegemony. He presented himself as a new immigrant from the United States who had acquired his legal education at the University of Chicago, unlike the other justices, who were from Russia, Poland and Ukraine. The foreigner was an expert in the constitutional rulings that had been handed down in the United States, which bore no trace of the Mandatory jurisprudence that ruled the roost in Israel and paid obeisance to the absolute power of the monarch. Concepts such as “clear and present danger,” “basic rights,” “minority rights” flowed from his pen and played starring roles in the lengthy judgments he delivered. He dared to draw on Israel’s Declaration of Independence as a constitutional document.

Without a constitution, without Basic Laws, the Traveler, along with the other justices, created the Supreme Court as a high court of justice. He annulled, for example, the administrative detention of Ahmed Shawqi al-Karbutli – a dangerous Arab in the eyes of the Shin Bet security service – because he had not been permitted to argue against the detention before a military advisory committee. He found that the minister of transportation was not authorized to prohibit wheeler-dealers and other intermediaries from plying their trade in the shadow of the vehicular licensing bureau, because freedom of occupation is a basic right. He canceled an explicit order from Ben-Gurion to fire Israel Eldad, one of the leaders of Lehi, from his job as a teacher.

The high point came in 1953, in the affair of the newspaper Kol Ha’am, when the Supreme Court annulled an order by the interior minister to shut down the paper for two weeks.

Few noticed that the Kol Ha’am episode was initially a snafu. The Traveler had been summoned back urgently to his place, because, it is said, of the danger of extinction that hovered over Earth. In his absence a first verdict was handed down that reiterated the outdated formulations holding that the person in authority, the interior minister in said case, was authorized to interpret his authority at his own discretion. After the Traveler saved the planet, he resumed his duties and discovered the debacle. Immediately the second ruling was handed down, effectively nullifying the first, which invoked all the instruments of the large orchestra of freedom of expression. The wise Pnina Lahav discovered this, which is why the Traveler gave her the privilege of writing his biography, “Judgment in Jerusalem” (University of California Press, 1997).

Seventy-two years have gone by. I see in the sky a dot moving speedily toward us, carrying one passenger. The spaceship touches down in the Knesset’s landing pad for spacecraft. I recognize the silhouette and the pipe. He strides with broad steps to the Supreme Court building, again goes up to the third floor and asks to be given the space he deserves. “You have lost the way,” he says softly. “You capitulated to weakness, you forgot who you are.”

In another few days, it will be reported that one of the justices has resigned “for reasons of health,” and a new justice, not very well known, will be appointed to succeed him. He will have acquired his legal education in Iceland, and he will bring to the Supreme Court’s judgments such terms and concepts as crime against the planet, personal responsibility for environmental damage, moral responsibility of governments and personal responsibility of justices who allow a prime minister charged with corruption to head a rotation government.

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