The High Court in All Its Humility

Palestinians pray on the first Friday of the holy fasting month of Ramadan, on the compound known to Muslims as Noble Sanctuary and to Jews as Temple Mount, in Jerusalem's Old City May 10, 2019.
\ Ammar Awad/ REUTERS

As of this writing, the police are banning Jews from going up to the Temple Mount on Jerusalem Day. The reason: The day “falls” during Ramadan. The public welfare, say the police, could be in danger. 

If so, one might ask, why banish the Jews – on Jerusalem Day of all days? Perhaps, for a change, on this one most singular day, for the sake of “public welfare,” entry ought to be banned to Arabs instead? After all, the Temple Mount is open to them the other 29 days of the month of Ramadan. And, of course, all year too, for that matter.

The High Court of Justice was asked to intervene. As usual, when it comes to Jews’ right to worship, it went along with the police. In its view, the Jewish people’s holiest site is simply a “powder keg.” So said (in an earlier hearing) Justice Isaac Amit (a graduate of religious schools) who serves on the Supreme Court in the nation-state of the Jewish people. 

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“We have here a decision by a professional entity,” his colleague, Justice Ofer Grosskopf modestly added. “Are we supposed to make decisions in place of the police chief or the police district commander?” For as we all well know, the High Court never intervenes in the decisions of a “professional entity.” 

Why, Justices Grosskopf, Yosef Elron and Hanan Melcer (the humble panel that is so obedient to “the professional entity” regarding the Temple Mount), didn’t you ask the question, “Who are we to contradict…?” on the hundreds of times when you did issue rulings that contradicted the views of the professional entities (ministers, IDF chiefs of staff, police chiefs, Shin Bet directors, district commanders, fill in the blank)? 

Just two weeks ago you instructed one of these professionals, the defense minister, to present the justifications for his decision to bar the entry of terrorists’ family members to the alternative Memorial Day ceremony. The decision was made, responded Benjamin Netanyahu, “in accordance with Israel’s security, diplomatic and strategic interests.” Yet, as you know, you permitted the entry of the terrorists’ families.

In short: When it’s about denying Jews’ right to ascend to their holy place, the view of “the professional entity” is what counts. When it comes to granting the right of entry to Israel to the families of terrorists, including murderers, you, in all your humility, do not hasten to intervene in the decisions of the executive branch, to take the security, diplomatic and strategic authority out of the hands of the defense minister (i.e., out of the hands of the professional entities in the army and Shin Bet), and to assume that authority yourselves. 

The public seems not to have grasped the full weight of this ruling. The High Court essentially ruled that regarding three basic elements – possibly the three most fundamental elements – under the authority of the executive branch (security, diplomacy and strategy), its own authority, that of the judiciary, is supreme. 

This is not mere judicial activism; this is a genuine governmental revolution. And after all that, the justices (along with supporters who keep encouraging them to appropriate the authorities of the executive branch) still wonder where the impetus to legislate the Supreme-Court-override clause comes from. 

Supreme Court President Esther Hayut went so far as to cite Nuremberg to warn us against legislating things like the “consent clause,” which was passed in 1933, at the instigation of the Nazis. Here, too, she came up with a precedent – regarding the need for “the justices’ independence… [so that the individual] will have an address to turn to for the protection of his rights.”

But why, your honor, do you “independent justices” refuse to be an address for the individual who yearns for his rights on the Temple Mount? And why do you meanwhile preserve and seemingly cherish the individual rights of terrorists or of foreigners who seek the end of Israel’s existence, and who were thus denied entry into Israel?