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Judgement Day for Israel's Supreme Court

Israel Harel
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The High Court adjourning to discuss petitions against the nation-state law.
The High Court adjourning to discuss petitions against the nation-state law.Credit: Shalev Shalom
Israel Harel

This week the Israel Democracy Institute published a statistic that ought to cause great concern: Public trust in the Supreme Court stands at 42 percent – an all-time low. Despite the momentousness of this finding, the people of the political system and the media who serve as the institution’s defenders and mouthpieces were silent.

The few who did speak out, of course blamed “Netanyahu’s attacks on the rule of law.” Apparently the “Neturei karta” of this “rule” are fleeing from their responsibility for this appalling state of things – and of course from grappling with the deep reasons why so many people have become fed up with the highest court in the land – to the point that its survival is at risk.

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Two decades ago, 85 percent expressed faith in the Supreme Court. Then, though not for very long, the public – in its naivete, it’s important to add – believed that the justice system, and the Supreme Court at the top, operated “out of the authority of the law and the justices were independent and apolitical.” Aharon Barak was quick to boast: “We, the justices, have neither sword nor purse; we have the public’s trust.”

Later, when the justices, initially led by Barak, and subsequently, and to this very day, led by his loyal successors, shaped the law according to their political outlooks, Barak did not back down. “The Supreme Court,” said the supreme arbiter, “is Israeli society’s Iron Dome.”

One main reason for the precipitous decline in the public’s view of the court (and many who view the High Court as akin to liberal Israel’s “Council of Torah Sages” would also agree with this) is that instead of proffering aid (as it purports to do) “to every individual and group,” this institution decided that it shall be the one to set, according to its secular-liberal agenda, the country’s social, ethical and cultural agenda.

Former Supreme Court President Aharon Barak, 2018. Credit: David Bachar

As one clever expert put it, it has become “the tiebreaker of Israeli identity.” And this, after Israel also changed and became a multicultural society. The Supreme Court, with the dedication of a supreme mission and nearly-religious devotion, remains the mouthpiece of the liberals.

In wake of the IDI’s findings, the court system issued a lengthy, apologetic response. A few selected gems: “Loyalty is given to the public as a whole, and to each individual who comprises it. The sole authority of its decisions is the authority of the law. This is its ‘genetic makeup’… and its necessary to ensure that the public accepts and upholds the court’s rulings… public trust in the judiciary is contingent first and foremost upon it being an independent, professional and apolitical system.”

Well, if they really were “faithful to the entire public” and “apolitical,” they would shun making rulings on political issues that are at the center of raging public debate. If they refrained from discussing Basic Laws, from which they derive their authority, trust in them would not have become so eroded.

Their decision to hear petitions against the nation-state law outraged many people who generally accept their rulings, even when they run counter to their own views. In recent years, Barak, who spearheaded the definition of Israeli identity according to his values – i.e., the values of the hegemons – has begun to admit some of his mistakes.

In a recent lecture, he even said, “It isn’t necessary to make a point of choosing a ruling that will fuel the fire… There is also room to have a dialogue and reach compromises.” His current successor and many of her predecessors are entrenched in their arrogance and self-righteousness and, even in the midst of the court’s downward plunge, refuse to accept this kind of advice that could help rescue the court.

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