Israel's Supreme Court Cannot Afford to Compromise

Supreme Court President Miriam Naor has a vital role to play in safeguarding Israeli democracy.

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Miriam Naor.Credit: Ilya Melnikov

She was considered an excellent but uncharismatic judge, meticulous, gray and, mainly, too small to fill the shoes of her predecessors. So what if that’s what people thought? It’s just possible that Supreme Court President Justice Miriam Naor will show herself to be a courageous public figure, not afraid of starting battles that even juridical giants would hesitate to undertake.

She never got her first hundred days of grace. Not even a week. Upon assuming office, before the March election, she realized that the rules of the game were shifting before her eyes, leaving her with a couple of distinct options: holding her nose and moving on; or, leaving aside considerations of state, rolling up her sleeves and putting up a fight.

That is why she left her chambers for a few hours last week, crossing Jerusalem to visit President Reuven Rivlin. In controlled, measured words, she managed to deliver her message: The courts are the last barrier against harm to human dignity and other fundamental rights. Damaging them will impact not only every citizen of this country, but also the state and its standing. Her final words were surprisingly powerful: “It’s hard to build, and easy to destroy ... Keep watch over the gatekeepers.”

Since Naor assumed office in January, several of the High Court’s rulings have been a cause for concern, a warning sign flickering toward danger: the law in which those calling for a boycott of Israel can being sued sailed through almost untouched. Then there was the law allowing for the confiscation of property belonging to East Jerusalem residents who are trapped in the West Bank or elsewhere. Finally, there was the decision to allow rabbinical courts to keep blacklists of adulterous couples, as is customary in the darkest of civilizations.

One could accuse our current High Court of passivism or feebleness. However, one cannot take away due credit for passing all its resolutions in the most meticulous, sincere and transparent manner. This is why the public, including all its diverse factions, blindly follows this institution, even while protesting and feeling unease at much of its behavior. This is termed “social consensus.”

In law schools, this consensus is exalted even before discussing human dignity or arguing about judicial activism. This consensus is an evasive entity that is hard to define: an unwritten pact that has no real authority behind it, the one that makes most of us help an old lady cross the street, stop at red lights and obey the Knesset’s laws – annoying or strange as they may sometimes seem to us.

This consensus also makes us obey the rulings of the High Court. How come? Because otherwise, we could not live in peace and enjoy personal security. Our common belief in the possibility of obtaining effective and real protection at the High Court, with all its errors and constrictions, is part of the glue that holds up this democratic-Jewish-Zionist mix – no less than the mandate MK Yariv Levin (Likud) received to enact the laws he believes in.

Ever since the election in March, this glue seems to be drying up and crumbling, threatening a tremendous legal enterprise in our society filled with never-ending confrontations. Gnawing away at core values of democracy in the name of strengthening governance and the rule of the majority is indeed a huge threat. But challenging the institution itself, attacking its stature and the social stability it represents, is even more worrisome.

Supreme Court President Naor understands this very well. Consequently, silence is not an option – even at the price of drawing fire onto herself and the High Court. If she doesn’t compromise on the significance of her role – the one no single ruling can define – and if she harnesses President Rivlin to her side, this gray and conservative justice could yet turn out to be a key figure in the annals of Israel’s history.