How Israel Got Its Supreme Court Right

After much national hand-wringing, four new judges were appointed to Israel’s 15-member highest court late last month. Justice Minister Ayelet Shaked, who comes from a right-wing religious party and has long championed changes to the court, considered the appointments a victory: One of the new judges is a settler; another is an Orthodox Jewish woman; a third is also considered a conservative. (The fourth judge is an Arab Israeli.)

The new judicial appointments, Ms. Shaked argued, “reflect the human and legal diversity” that she said had “until now has been so lacking on our highest court.” After decades dominating politics, the Israeli right had finally broken through into this bastion of unapologetic liberalism. Now the right has the opportunity to prove that it can run the country effectively without being fettered by a liberal court.

Engineering this political earthquake required some serious politicking. A nine-member committee selects the judges for the High Court of Justice. Four members are politicians, two of them ministers and two members of the Knesset. Three are sitting judges on the court. Two are representatives of the Bar Association. To get the conservative judges added, Ms. Shaked cunningly forged a coalition between the politicians and the lawyers. When the judges on the committee tried to block most of the new appointees, she made them back down by threatening to pass legislation that would in effect cancel their power to veto candidates they highly dislike.

The High Court had been a target of right-wing complaints for more than two decades. In the 1990s, a liberal-minded court began interpreting Basic Laws — Israel’s partial substitute for a constitution — more expansively. The court also became more aggressive in inhibiting government actions. The new approach, labeled a “constitutional revolution” by Aharon Barak, then the chief justice, aimed to fill a void left by Israel’s lack of a constitution.

The timing couldn’t have been more out of step with the direction of the country. As the court was becoming more liberal and interventionist, Israel’s voters and politicians were moving rightward. As liberals lost elections, they increasingly turned to the courts. Meanwhile, judges became a constant irritant to the conservatives who won elections only to see their agendas constrained by the judiciary.

Critics said the court was forcing its liberal values onto Israel’s elected officials. For example, in 2013 the court rejected a government policy enabling the state to detain without trial illegal immigrants for three years. For years, settlers and their supporters have accused the High Court of going easy on Arabs who build without proper licenses, while being tough on settlers who do the same thing. Ms. Shaked and many of her peers in the government harshly criticized the court in these cases.

In some ways, this era saw the court pitted against the people. Or at least that was how a growing number of Israelis perceived things. The High Court’s approval rating, while still high, seems to be eroding. The nonpartisan Israel Democracy Institute tracked a significant decline in Israelis’ approval of the court from 2000 to 2009. And last year, it found that among right-wing Israelis “only 41 percent place their trust in this institution.”

Ruling majorities often hope to make the judiciary more compatible with their ideologies. (See, for example, President Trump’s nomination of Neil M. Gorsuch to the United States Supreme Court.) But in Israel, the system for selecting judges makes this more difficult. The process by which new judges are appointed (they retire at 70) has historically been less politicized, with the sitting justices having a veto over nominees they deemed unfit.

Over the last four decades, in which the right has mostly been in power, it has attempted to weaken the perceived control of left-liberal agendas in important institutions, from nongovernmental organizations to the news media. Now it is the High Court’s turn.

It is, no doubt, a frightening time for a minority of Israelis, who believe that the liberal court is the last of Israel’s democratic institutions untouched by the right. But the rest of us see the gradual alteration of the court as a positive development, an important step for Israel’s ruling coalition of conservative voters and representatives. That is, if the conservative coalition proves worthy of the changes it is promulgating.

For many years, a liberal, activist court served as an excuse and a shield for Israel’s conservatives. When the right-wing government failed to achieve its goals, it blamed the court for tying its hands. When government failed to restrain its fringe elements, it counted on the court to do its job.

This has to stop.

Though there are no guarantees, it seems likely that a more conservative court will be less likely to block policies that come out of the government or the Knesset. So by forcing the hands of the judges, Ms. Shaked in essence declared herself and her peers worthy of a more independent political and legal environment.

The burden is now theirs. After four decades of political dominance, the conservative coalition that runs Israel feels confident and mature enough to steer the country without a need for the easy excuses that the High Court provided. Only time will tell if the conservatives really understand that with the weakening of the court comes a price: They will now have to take responsibility for their own actions.

Shmuel Rosner is the political editor at The Jewish Journal, a senior fellow at the Jewish People Policy Institute and a contributing opinion writer.

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