That, of course, is patently ridiculous: As one judge commented to Haaretzthis week, “How can you expect a senior jurist, some 60 years old, not to have opinions about the court’s role?” But it is particularly egregious coming from a man who has systematically made the court a vehicle for his own agenda during 27 years on the bench.
Barak has an extremely well-developed view of the court’s proper function. In a nutshell, it is that the court should be the arbiter of every major political and social issue. As he explained in a 1992 article, “in my eyes, the world is filled with law. Every human behavior is subject to a legal norm. Even when a certain type of activity – such as friendship or subjective thoughts – is ruled by the autonomy of the individual will, this autonomy exists because it is recognized by the law… There are no areas in life which are outside the law.”
Moreover, as he wrote in another article, the court must decide such issues “according to the views of the enlightened community in Israel” – where the justices, of course, are the arbiters of what qualifies as “enlightened.” In other words, Supreme Court justices are the modern equivalent of Plato’s philosopher king: Their job is to impose their own “enlightened” views on the nation.
To put this agenda into practice, Barak persuaded his colleagues on the bench to eliminate two procedural barriers to judicial intervention that had been in place since the court’s establishment, and are still in place in most other Western countries.
One, the doctrine of “standing,” held that only someone with a direct, personal interest in a case could petition the court on that issue. Barak decided instead that anyone could petition the court on any issue, thereby ensuring that someone could always be found to bring every major issue to the court’s doorstep. The second, the doctrine of “justiciability,” held that the court should not rule on certain issues because they are properly the purview of the legislature or executive. Barak held instead that since “no areas in life… are outside the law,” no issue can be beyond the court’s purview.
HAVING SUCCESSFULLY eliminated these procedural barriers, Barak then abolished the one remaining check on the court’s power: the Knesset’s ability to overrule the court through legislation. He did this by declaring that two 1992 Basic Laws supported by a mere quarter of the 120-member Knesset – Human Dignity and Liberty (which was approved 32-21) and Freedom of Occupation (23-0) – comprised a constitution, and therefore entitled the court to overturn subsequent legislation passed by far larger majorities if, in the court’s view, it conflicted with these two laws.
The fact that no other country in the world has ever adopted a constitution by minority vote troubled Barak not at all. Neither did the fact that most MKs did not intend these laws as constitutional legislation (as Barak himself admitted, Israel’s “constitution” came into being “almost secretly”). Asserting constitutional status for these laws was essential to his program – especially since they are worded so vaguely that virtually anything a justice opposes can be held to contradict their principles – and he therefore insisted that they indeed authorized the court to overrule the Knesset.
AND, JUST as Barak intended, the court is indeed now deciding virtually every major issue. It is determining the route of the separation fence, which may well define Israel’s future borders; dictating immigration and citizenship policies (both by defining who is a Jew, and thereby entitled to automatic citizenship, and via various cases dealing with naturalization); setting budgetary priorities (in one pending case, it has already asserted the right to set a minimum level for government welfare payments; in another, it asserted the right to expand national health insurance coverage); intervening in sensitive family matters (from recognition of gay couples to criminalizing spanking); and even dictating wartime military tactics (with regard to both specific operations, such as one in Rafah in May 2004, and general policies, as in a pending petition against targeted killings of terrorists).
Thus what really bothers Barak is not the existence of an “agenda,” but the existence of a different agenda – namely, Gavison’s belief that such major public issues should be decided by the people’s elected representatives rather than the court. He even admitted as much later in his speech, charging: “Her agenda is not good for the Supreme Court.”
That, however, is a highly debatable proposition. Indeed, traditional democratic theory sides with Gavison: It holds that major issues are supposed to be decided by the people, via their elected representatives, rather than by an unelected court. By usurping the legislature’s role in making such decisions, the court has made normal democratic politics – which centers on trying to elect people who share your views – largely irrelevant. It has thereby gutted our political culture, increased alienation and undermined belief in the value of democracy. And ultimately, it is liable to undermine the court itself – because the court, like any other dictator, will increasingly become the focus of popular resentment.
The choice between Barak’s approach and Gavison’s is one that every democracy must make, as it fundamentally affects the shape of society. As such, it deserves to be debated openly and thoroughly. Barak’s attempt to quash this debate by hypocritically declaring all “agendas” hors concours is merely the latest salvo in a decades-long effort to subordinate Israel to one particular agenda – his own.
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