High Court in the Hot Seat

I am more worried than I have ever been about the future of Israel,” says attorney Dorit Beinisch, former president of Israel’s Supreme Court, as well known in Israel as the late Justice Ruth Bader Ginsburg was in the United States. I am visiting Beinisch’s home in Tel Aviv, and we are sitting in her small office, which is comfortably overstuffed with a large desk, hundreds of books in different languages and dozens of photographs, mostly of her family.

Beinisch was appointed to the Israeli Supreme Court in 1995, and in September 2006 she was sworn in as its first female president—the equivalent of the U.S. Supreme Court’s Chief Justice—a position she held until her mandatory retirement at age 70 in 2012. Now 79, Beinisch speaks firmly and deliberately, as eloquent in our meeting as she was on the bench. After a career she describes as “promoting Israeli democracy through the law,” Beinisch is as busy as ever, fending off growing attacks on the Court that threaten its power.

A few days later, I visit another attorney, Simcha Rothman, in his law office in Jerusalem, which also serves as headquarters for the Movement for Governability and Democracy, an NGO that is lobbying to increase the number of politicians on the committee that selects justices. Rothman, 40, served as legal counsel to that group until his recent election to the Knesset as part of the Religious Zionist party, which is known for its ultranationalist platform. A strong proponent of the settlement movement, Rothman was named by the Israeli financial daily The Marker as one of Israel’s 100 most influential people in 2020.

His office, too, is filled with books, prominent among them numerous copies of The Ruling Party of Bagatz: How Israel Became a Legalocracy, the book he published last year in which he claims that Israel’s Supreme Court judges “rule the country against the will of the people and ignore Jewish values.” Like Beinisch, he speaks articulately, almost in paragraphs, as he cites rapid-fire references from numerous legal, religious and philosophical sources.

“We must remake the Court, and I will do everything I can to make sure that we do, for the good of Israel and the Jewish people,” he tells me, raising his voice and gesturing broadly. Rothman too expresses concern about Israel’s future, insisting that “to save Israeli democracy, we must change the Israeli Supreme Court.”

My conversations with Beinisch and Rothman, which feel as if they could have taken place in alternate universes instead of merely in different cities, encapsulate the fierce debate Israel is embroiled in over its Supreme Court. It is a debate that will sound familiar to American ears, a debate with two visions of democracy—one based on the rule of law, the other on majority rule. True, its contours, as well as the Israeli judicial and government structure, are vastly different, but the two countries’ culture wars are eerily similar—and connected.

At stake in the clashing views about the Court are the fundamental core values that define Israel’s soul.

The story of the Israeli Supreme Court starts long before the Jewish state was established in 1948, with the dual and often-dueling influences of Ottoman and British Mandate law. The new nation inherited DNA from both, and its difficult birth included a declaration of independence without an accompanying constitution. This is not an uncommon phenomenon in the annals of nation building (the United States is truly exceptional in this case). Prime Minister David Ben-Gurion and Israel’s other founders had more pressing battles to fight than one over a constitution. They ended up creating a Supreme Court that had to coexist and deal with Jewish, Muslim, Christian and other religious courts while functioning as a Western legal system. As a result, Israel’s judicial system was born with built-in tensions between religious and civil authority, and handicapped by the lack of a constitution that could have helped clarify the relationship between the branches of government.

Like the Supreme Court in the United States, Israel’s Supreme Court is the highest court of appeal for civil, criminal and administrative cases. But thanks to its British genes, the Court’s judges also serve as a High Court of Justice, which hears petitions for judicial review of decisions and actions of public authorities. The High Court of Justice or Beit Mishpat Gavo’ah L’Tzedek, also known by its acronym bagatz, may, for example, issue orders to release people who have been illegally detained or imprisoned and order state and local authorities to act or refrain from acting against an individual or a group. Although it has almost no way to enforce its rulings, the High Court can also instruct the Jewish, Muslim and Christian courts to rule according to civil, rather than religious, law—for example, in the distribution of property in the event of divorce.

Many of Israel’s founders believed that Israel would at some point adopt a constitution. In the country’s first decades, it wasn’t a priority: Israel was consumed by feeding and sheltering new immigrants and fighting wars and, unified under the leadership of the Labor Party, the Court was widely respected. But as decades wore on, little progress was made on the constitution front. The objection to a constitution, explains attorney Gil Bringer, a founding member of the Israel Law and Liberty Forum, an Israeli organization that models itself on the U.S. Federalist Society, has consistently come primarily from religious parties, who have fervently opposed any document that could be viewed as being more authoritative or legitimate than Jewish law. And throughout Israel’s history, the religious and, especially in recent decades, the ultra-religious parties have wielded enough political power in coalition governments to block all efforts to produce such a document.

Enter the hugely influential Aharon Barak. Barak, who earned a doctorate in law at the Hebrew University of Jerusalem and was the dean of its law faculty from 1974 to 1975, served as attorney general of Israel until 1978, when he was appointed to the Court. Barak became president of the Court in 1995 and served until he reached mandatory retirement in 2006, when he was replaced by Beinisch. His distinguished career included participation in the Camp David peace negotiations with Egypt, during which then-President Jimmy Carter, impressed by him, jokingly offered him a seat on the U.S. Supreme Court. Blessed with extraordinary intellect, charisma, oratorical skills and political savvy, at age 38 he was, and remains, the youngest person ever to receive the Israel Prize, Israel’s highest civilian honor.

Simcha Rothman, Dorit Beinisch and Aharon Barak. (Photo credit: Adapted from wikimedia images)

Barak was born in Kovno, Lithuania, in 1936 as Europe and its Jews were about to go up in flames. He and his family survived the Holocaust in hiding, finally immigrating to Israel in 1947. In talks and lectures, Barak has often said his judicial career was shaped by his parents, who instilled in him a search for knowledge, and a German soldier, who helped him and his family survive and inspired his quest for justice and dignity. Now 84, the famed jurist did not respond to requests to be interviewed for this story. He is venerated by Israel’s liberals, who view him as a sort of founding father of Israeli human rights. At the same time, he is vilified by the conservative right, who accuse him of conducting a “constitutional revolution without a constitution.” All agree, however, that under Barak’s leadership, the Court became more influential in Israeli politics and society.

That shift began in the Knesset, not the Court. To make up for the lack of a constitution, Israel’s parliament enacted a series of what it called Basic Laws. The first nine, passed between 1958 and 1988, dealt primarily with structural issues, such as the powers of governing bodies, the role of the president and the parameters of the national budget. Then, in 1992, the Knesset passed Basic Law: Human Dignity and Liberty, the first law related to human and civil rights by forbidding infringement upon a person’s dignity, life, body or property. This was followed, in 1994, by Basic Law: Freedom of Occupation, which prohibits restrictions on a person’s right to practice any vocation.

At stake in the clashing views about the Court are the fundamental core values that define Israel’s soul.

Following the passage of these laws, Israel’s Supreme Court adopted a number of steps that increased its reach and influence. By interpreting Basic Laws very broadly, the Court assumed the power to strike down new legislation that contradicted any Basic Law. Some legal observers have compared this process to the United States’ famous 1803 Marbury v. Madison decision, which established the principle of judicial review of statutes and gave the Supreme Court the power to strike down laws and government actions that violate the U.S. Constitution.

The Israeli Court also expanded who had the right to “stand” before it, in other words, to petition it to take a case. Originally, and as is still the case in most Western democracies, only someone who had been directly harmed by a government action could petition the court for redress. But in the 1990s, Israel’s High Court adopted new “user-friendly” definitions, which for the first time allowed it to entertain a petition from anyone—whether or not they were a citizen or even a resident of Israel, including Palestinians from the West Bank—if they believed they had been unjustly affected by a decision made by the government, a public body or a civil servant. (These same user-friendly definitions also made the cost to petition the Court minimal.) In essence, the Court created a work-around for the lack of a constitutional provision for equality and increased the emphasis on individual rights.

These moves caught the attention of none other than Robert Bork, the influential American jurist who served as U.S. solicitor general in the 1970s and a judge on the U.S. Court of Appeals for the D.C. Circuit in the 1980s, and whose nomination to the Supreme Court was rejected in 1987. Bork, an opponent of so-called judicial activism, promoted originalist theory, which views the U.S. Constitution’s original meaning as fixed. Writing in 2007 in Azure, a now-defunct Israeli conservative magazine, Bork observed, “Barak’s court can turn ordinary legislation into a constitution, force it on the nation, and then announce that it can prevent any democratic amendment. In this, Barak surely establishes a world record for juristic hubris.”

The Israeli Supreme Court building in Jerusalem. (Photo credit: Adapted from wikimedia images)

Bork set the tone for Israeli critics of Barak—and put forth the idea that Barak himself was to blame. Indeed, Barak’s opponents accuse him of unbridled activism. This kind of talk disturbs Beinisch. Looking back, she says that these processes were not revolutionary and should not be attributed solely to Barak. Israeli courts, she explains, deliberately learn and take examples from other courts, and apply them to Israeli reality. Thus, well before Barak even assumed the bench, Israel’s courts were influenced by American jurisprudence, such as the decisions made by the liberal Warren court in the 1950s and 1960s and the rulings by the Canadian courts that focused on multiculturalism. “By the 1990s, there was a clear zeitgeist in Israel that recognized the state’s responsibility to protect the individual, and especially the weaker individuals in our society, and the court reflected this,” Beinisch says. “This was an evolutionary, not a revolutionary process.”

Israel’s growing civil rights movement and nongovernmental organizations (NGOs) quickly realized that the expansion of standing provided an opportunity to petition the Court to promote civil equality. One of the first cases involved a young IDF soldier, Alice Miller. Miller wanted to fly planes in the Israeli Air Force but was not allowed to take the qualification exams required for acceptance into the pilots’ training course because it was open only to men. So in 1994, the Israel Women’s Network and the Association of Civil Rights in Israel brought a petition on behalf of the IDF soldier, contending that since the law requires both men and women to serve in the armed forces, her gender should be irrelevant to her military service. The Court agreed with Miller and ruled that she be given the opportunity to take the tests. (Miller took the tests and failed, but dozens of women have since taken these tests, and several have become pilots.)

More NGOs followed suit, forcing the Court to take on issues that began to push it to the forefront of societal change. But starting in the late 1980s, dramatic shifts were underway in Israel. Liberalism was on the wane: Russian immigrant voters helped bring new conservative governments to power; a talented young politician, Benjamin Netanyahu, became the dominant force, and the power of the ultra-Orthodox as brokers grew. Ethno-nationalist and religious values began to replace those of minority protections, gender equality and the strengthening of civil society, which the Court generally upheld. The right felt that it was winning the elections, but the Court was constraining its political agenda.

“Judges make decisions according to law, not according to feelings—even with regard to the rights of terrorists.”

This created what Adam Shinar, associate professor at the Interdisciplinary Center in Herzliya, refers to as a “perfect storm” that thrust the Court front and center on Israel’s political and social stage. Of course, says Shinar, right-wing and conservative individuals and organizations also had, and have, the right to turn to the Court. “But they didn’t, and rarely do today, because to the right, the collective is still most important, and individual and human rights—and therefore the Court—are viewed as the province of the left.”

Indeed, like many on the right, MK Rothman insists that the Court is politically biased. “The judges cannot accept that the right has repeatedly won the elections,” he says. “So they use the courts to control the politicians and promote their agenda.” Again, Beinisch comes to the Court’s defense. “The Court doesn’t make political decisions, but the decisions may have political implications,” she says, adding that in a polarized Israel, many rulings land in a “minefield.” She argues that Court decisions are based on universally accepted legal principles of justice, consensual values and binding international conventions. “Judges commit themselves to universal values. In the Second Intifada, when terrorists were blowing up buses all over the country, our children rode those buses, too. We judges were also frightened and angry. But we made decisions according to law, not according to our feelings—even with regard to the rights of terrorists.”

Religious zionists such as Rothman and their political allies say they are sick and tired of hearing about international legal conventions. They would like to see the Jewish state bound to Jewish principles. The ultra-Orthodox community, for example, has objected to the Court’s interventions in matters such as universal exemptions for yeshiva students from compulsory military service (which the Court has ruled against); issues of property division in divorce (which the Court ruled should be made according to civil definitions of equality rather than Jewish law) and other matters. Another group at odds with the Court are working-class Mizrahi Jews descended from people who emigrated from Iran, North Africa and other Arabic speaking countries two and three generations ago.

Some still live in the down-and-out neighborhoods of South Tel Aviv alongside Africans who came to Israel to escape the wars in Eritrea, Darfur and Sudan, and many of them have participated in anti-immigration demonstrations calling for the deportation of Israel’s 30,000 asylum seekers. They are frustrated that the Court has not allowed the state to deport these asylum seekers, because, in response to petitions by human rights groups, it has ruled that expelling the immigrants violates international law.

As in other countries, “there are those who perceive liberalism and the emphasis on the rights of the individual as an attack on their core identity, which is based on collectivism and a sense of belonging,” says Nissim Mizrahi, professor and former chair of the Department of Sociology and Anthropology at Tel Aviv University. This internal struggle over identity is reflected in politics. “When it comes to the hierarchy of the two terms ‘Jewish’ and ‘democratic,’ the left-center bloc would like to see ‘democratic’ as a type of ID card for the State of Israel, which they envision as a modern Western state…with a Jewish complexion,” says Mizrahi. “The right-wing bloc attaches far greater importance to the ‘Jewish’ component, and believes that defense of the state’s Jewish identity is paramount.”

Nowhere is this struggle as obvious as in the battle over the latest Basic Law. The Nation-State of the Jewish People law, popularly known as the “Nation-State Law,” was passed in 2018 with a narrow majority of 62 of the 120 members of the Knesset. Its passage set off a furor among liberals in Israel and elsewhere because it anchored, for the first time, Israel’s status as “the national home of the Jewish people.” Among its 11 clauses, it said that the “right to exercise self-determination in Israel is unique to the Jewish people,” established Hebrew as Israel’s official language and downgraded the linguistic status of Arabic.

Supporters of the law claim that it is merely a declarative statement about the Jewish character and Jewish majority in the State of Israel. But NGOs such as Adalah: The Legal Center for Arab Minority Rights in Israel, the Association for Civil Rights in Israel and the left-leaning Meretz Party see the law as running counter to the principles outlined in earlier Basic Laws. They argue that it makes no mention of civil equality for all of Israel’s citizens and degrades the standing of Israel’s non-Jewish minority groups. They brought numerous petitions to nullify the law to the Court, and in December 2020, the Court agreed to hear them. This enraged the law’s supporters and placed the Court in an unprecedented position.

Since the Court has ruled that Basic Laws have constitutional status, if it invalidates the Nation-State Law, it would in effect be saying that the Court has the last word regarding the contents of the “constitution.” On the other hand, the petitioners note, if it does not strike down the law, the Supreme Court will turn Israel into the only democratic country in the world without the equivalent of constitutional protections that formally provide for the equality for all.

The Court, however, has not made a decision, and it is unclear when it will do so. This highlights another difference between the U.S. and Israeli high courts. The American Supreme Court typically releases decisions by the end of each term, but Israel’s Court can take years to hand down rulings, or issue them with little advance notice. Since the Court is not bound to explain why it publishes its decisions when it does, it is also open to criticism that the timing of its decisions is politically motivated.

This is what happened in March, when, in the thick of the most recent Israeli election campaign, the Court ruled on a long-awaited decision about non-Orthodox conversions. It instructed the interior ministry to register as citizens a group of petitioners who had undergone non-Orthodox conversions to Judaism in Israel. The petitioners, including the Israel Religious Action Center, the advocacy arm of the Reform Movement in Israel, view the decision as a significant advancement in the fight for recognition of the non-Orthodox denominations of Judaism.

The Orthodox, especially the ultra-Orthodox, view the decision as an affront to the very identity of the Jewish state. Arye Deri, leader of the ultra-religious Shas movement, accused the Court of handing down its decision in order to influence the elections and pledged to fight the ruling so that “only conversion according to halacha [Jewish law] will be recognized in the State of Israel.”

The petition was first brought to the Court nearly 16 years ago, when the interior ministry refused to grant citizenship under the Law of Return to 11 temporary residents who had been converted in Israel by Reform and Conservative rabbis. Throughout this time, the government repeatedly asked for continuances, until the Court lost patience. Still, the Court was cautious in its reach. Its decision did not strike down any existing legislation, and it actually affects fewer than a dozen people annually. Further, the Court explicitly invited the Knesset to rewrite existing legislation concerning non-Orthodox conversions, so as to remove the lack of clarity that led to the case in the first place.

Politically the most influential critic of Israel’s Supreme Court has been Benjamin Netanyahu. The nation’s longest-serving prime minister has been trying to weaken the Court since at least his first term in the 1990s, decades before corruption charges were leveled against him. But throughout his investigation and trial—for alleged breach of trust, accepting bribes and fraud—he made delegitimization of the entire legal system part of his political strategy to engage his conservative, right-wing core constituency. Repeatedly, he has called the case against him a “witch hunt by the left-wing parties, the media, the state prosecutors and the courts.”

In actuality, Israel’s Supreme Court has tiptoed around Netanyahu’s case and trial, which is taking place before a three-judge panel in the Jerusalem District Court, a mid-level jurisdiction. And in 2020, the Supreme Court ruled, as it has before, that Netanyahu could continue in his position as then-prime minister despite the legal proceedings against him. Indeed, in this regard, the Court was subjected to rare criticism from the left and support from the right. “The left thought that since they couldn’t get rid of Netanyahu in the polls, they would use the courts,” says MK Rothman. “At least in this case, the Court ruled according to the law, and not according to its political preferences.”

That Netanyahu set up the Court as an enemy must be viewed within the context of Israel’s increasingly populist politics, similar to that of countries such as Hungary, Brazil, Turkey and Poland, where democracy is regarded as the rule of the majority, says law professor Shinar. “Throughout the world, as the populist right wing consolidates its power, it makes every effort to remove islands of resistance, such as culture, the media, academia and the courts.”

Netanyahu’s approach, he says, has been no different. “The leader makes every effort to present himself as the authentic voice of the people and to convince them that any critique of him or his decisions is undemocratic.”

Netanyahu has had plenty of help in his campaign to diminish the Court, including some very vocal Knesset allies. Knesset member Motti Yogev from the Jewish Home Party suggested several years ago that the people should “bulldoze the Supreme Court down.” Another Knesset member, Moshe Gafni, head of the ultra-Orthodox Degel Hatorah Party, fumed during a recent interview on Israeli radio, “We must immediately put an end to the Supreme Court Justices’ unlimited power.” Yet another, MK Bezalel Smotrich of the Religious Zionist Party, has promised that “the next government’s tasks will be to reform the High Court’s thuggish, unauthorized rampage to determine Israel’s values.”

The threat is not just rhetorical. A group of Knesset members have attempted to enact an “Override Law,” which would allow the Knesset to overturn a decision by the High Court of Justice to invalidate a law with a 61-Knesset-member majority. This would effectively void the judicial review of all the laws passed by the Knesset and turn High Court of Justice rulings into nothing more than recommendations. The proposal was rejected by the Knesset in a 71-5 vote in August. And while it is unlikely to pass under a new, more diverse coalition, MKs Rothman and Smotrich have promised to continue their campaign to change the court and to influence the public discourse, even if their party is not in the new government. Furthermore, MK Ayelet Shaked, a former minister of justice, whose party, Yamina, will be part of the government, is determined to change the judicial selection process.

Currently, judges are appointed by the president of Israel from names submitted by the judicial selection committee. This committee has nine members: three Supreme Court judges (including the president of the Supreme Court), two cabinet ministers (one of them being the minister of justice), two Knesset members and two representatives of the Israel Bar Association.

Appointing Supreme Court judges requires seven of the nine committee members. Currently four members of the committee are politicians and those who think that the Court has too much power want to add more. They argue that the politicians who are elected reflect the will of the pepole, while appointed judges do not. The political balance of the court is already organically shifting: One justice, Menachem (Manny) Mazuz, considered a liberal, recently voluntarily retired from the Court, and others are reaching their retirement age.

Even if these efforts are not enacted into law in the near future, Beinisch is worried. “The continued agitation against the Court will influence public opinion,” she warns. “If the powers of the court are cut back, and if the changes to the judicial selection committee are put into effect, democracy in Israel will have no one to defend it and, I fear, Israel will cease to be a democracy. ”

Furthermore, she says, “There are well-funded, politically well-connected organizations that are determined to destroy Israel’s Supreme Court.” The Movement for Governability and Democracy is not the only one. Most prominent is the Kohelet Policy Forum. In 2019 Kohelet helped establish the Israel Law and Liberty Forum, whose American counterpart, the Federalist Society, is widely credited with promoting at least six of the nine justices currently on the U.S. Supreme Court, including Brett Kavanaugh and Amy Coney Barrett. Kohelet and the Israel Law and Liberty Forum take credit for successfully lobbying on behalf of the Nation-State Law as well as for promoting some of the more conservative judges to be recently appointed to Israeli District and Supreme courts. With an eye to the long term, the Israel Law and Liberty Forum is already training cohorts of young lawyers and jurists, as the Federalist Society does, in the hope that they will transform the entire judicial structure. “The left and center-left treat the Court as if it were the responsible adult in society, but that is only because the current justices are mostly from their own camp,” says Gil Bringer, one of Israel Law and Libery Forum’s founders. “But the right will still have power and will appoint the judges that will rule according to our views. How will the left feel then about the ‘responsible adult’?”

Kohelet was founded by the U.S.-based Tikvah Fund, a conservative think tank and activist forum, which was established in the 1990s and describes itself as “a philanthropic foundation and ideas institution,” whose goals are to “support the intellectual, religious, and political leaders of the Jewish people and the Jewish state” and bring “Jewish thinking and leaders into conversation with Western political, moral, and economic thought.” Kohelet is largely funded by the American Friends of the Kohelet Policy Forum, a Philadelphia, PA-based nonprofit organization with a U.S. tax-exempt 501(c)(3) status. According to The Times of Israel, the American Friends of the Kohelet Policy Forum has received millions of dollars in donations, but it provides no public information about its donors.

On the left, many of the civil society groups that have petitioned the Court in order to move the democratic agenda forward and who are now seeking to overturn the Nation-State Law have also received funding from American and international and governmental groups, such as the New Israel Fund, the Ford Foundation and the European Union. Israel’s right contends that these groups are interfering in Israeli politics, despite the outside influences that have fueled its own rise—and its campaign against the Court.

The multi-pronged and persistent attacks and the changing political zeitgeist have already taken their toll on the Court. In the past, the institution enjoyed wide public support from all sectors of society. But in mid-January, a survey conducted by the Israel Democracy Institute revealed that only 42 percent of the Israeli public currently has faith in the judicial system.

It’s critical, says Beinisch, that the Court maintain its respect and legitimacy with the public and the legislative and executive branches no matter which government is in power. “The judges know this, and so they are very careful,” she says. “For example, the Court has never ruled on the legality of the settlements in the West Bank, even though international law sees them as illegal, because there is no consensus on this within Israel.” In essence, the judges recognize the pragmatic need to balance the rule of law with majority views.

Like the physical act of balancing, democracy and its defense require constant calibration. It remains to be seen in which direction Israel will swing.

This story, the winner of a 2021 Simon Rockower Award, was made possible by the J Zel Lurie Family Fund.