Civil Fights: Why High Court’s champions must back Ne’eman

Champions of the Supreme Court such as MKs Dan Meridor and Bennie Begin may ironically have hurt their own cause by securing Justice Minister Daniel Friedmann’s ouster. Even more ironically, they ought to be hoping that is true.

Though Friedmann outspokenly advocates judicial reform, his two years in office achieved exactly nothing. Not one substantive reform was enacted, and his aggressive, confrontational manner alienated even many supporters. This failure had multiple causes, but foremost was the fact that Friedmann, a brilliant legal scholar, proved a lousy politician. He did not know how to muster support, forge compromises and conduct horse trades to get his proposals passed.

His expected successor, Yaakov Ne’eman, also advocates judicial reform. But unlike Friedmann, Ne’eman is a skilled and experienced political operator. Aside from his experience as finance minister in 1997-98, he has successfully brokered numerous coalition agreements; he also chaired a public commission that forged a groundbreaking compromise on conversion among Reform, Conservative and Orthodox Jews (though haredi rabbinical courts have since effectively killed it). In short, he is a skilled negotiator and forger of compromises and is widely respected by all political factions. Thus he is much more likely than Friedmann to actually enact significant reforms.

BUT WHY SHOULD people like Meridor and Begin, who oppose curtailing the court’s powers, hope the next justice minister succeeds in doing so? Because hostility to the court has grown so dramatically that unless moderate reforms are enacted soon, the backlash is liable to produce immoderate reforms in the future.

Repeated polls have shown the Supreme Court’s once unassailable status plummeting. One published this month by Prof. Arye Rattner of the University of Haifa, for instance, found that only 53 percent of Israeli Jews had faith in the court in 2009, down from 80% in 2000, while only 35% had faith in the court system in general, down from 61% in 2000.

Friedmann’s critics often blame him for this drop in support. Rattner dismisses this as nonsense, noting that the process began years before Friedmann took office. Indeed, in his 2007 poll, conducted shortly after Friedmann’s appointment, only 51% of Israeli Jews expressed faith in the Supreme Court – meaning the main decline occurred before Friedmann entered office and actually halted during his tenure. Other surveys show similar results: The Peace Index poll, for instance, found that support for the court among Israeli Jews dropped from 85% in 2000 to 48% in August 2006, which is six months before Friedmann took office.

And while Friedmann did help to erode the taboo against public criticism of the court, his attacks were probably less effective in this regard than Dorit Beinisch’s responses: The sight of the Supreme Court president hurling invective and lobbying ministers and MKs like any politician severely undermined the claim that the court should be above criticism.

THE REAL REASON for the court’s declining status is not Friedmann, but its ongoing interference in controversial political issues. It has either overturned government decisions or threatened to do so on issues as varied as the route of the security fence, IDF operations in wartime, the level of health, education and welfare spending, the acquisition of citizenship (for both Arabs and Jews), ministerial and civil service appointments and more. This has two inevitable consequences.

First, it is hard to convince people that the court is apolitical when it demands the final word on every major political decision. And second, since overruling the government often means contradicting the views of that majority of Israelis who elected it, this majority then resents the court for thwarting its preferred policies.

Hence people who understand that an independent and respected judiciary is vital to any democracy are increasingly concluding that sensible reforms – ones that curb the court’s excesses without impairing its independence – are essential to stave off harsher measures that could undermine this independence. A good example is former Labor MK and minister Shimon Shetreet, chairman of a subcommittee whose proposals for reforming the Supreme Court were included in the Magidor Commission’s report on reforming the system of government in 2007.

In his report to the commission, Shetreet lavishes praise on many of the court’s most outrageously activist decisions, leading the reader to wonder why he favors reform at all. But then he explains: Given “the fierce opposition the Supreme Court has aroused via its judicial activism, a rethinking of fundamental issues related to the judicial system is needed. As long as the public gave the court extensive credit… it was justified in using this credit to ensure proper administration, ethical behavior, the rule of law and broad societal values,” but “once the court’s credit has been eroded,” continuing down this path is dangerous.

The court, however, refuses to change direction on its own. Thus unless moderate curbs are enacted now, “a situation is liable to arise in which the legislature succeeds in passing aggressive legislation against the Supreme Court.”

SHETREET’S PROPOSALS are actually too moderate. He would not restrict justiciability, meaning the court could still rule on any issue whatsoever, whereas in a properly functioning democracy, major policy issues should be decided by the elected government rather than an unelected court. Nor would he restrict use of the reasonability standard, under which the court declares any policy it deems “extremely unreasonable” ipso facto illegal, hence effectively substituting its own policy judgments for those of the elected government.

Nevertheless, he does propose two critical changes: He would restrict standing to those with a direct, personal interest in the case, thereby eliminating the current situation whereby anyone can petition the court about anything, and would replace the court’s ability to void Knesset legislation with the British model, under which the court can declare a law incompatible with the constitution, but the parliament decides whether to amend it, repeal it or leave it in place.

And ultimately, this is the choice facing the court’s supporters: modest but substantive Shetreet-style reforms now, or far more radical reforms further down the line. Which is precisely why Meridor, Begin and their ilk should be rooting for Ne’eman’s success.