Exploding the myth of the ‘apolitical’ court

In a 6-5 decision, the court upheld a controversial amendment that imposes strict limits on the right of Palestinians married to Israelis to immigrate to Israel. While the right to marry is a basic right, the majority said, it doesn’t include the right to live with one’s spouse in Israel specifically; the state is entitled to restrict marriage-based immigration to protect important interests like security (the amendment was enacted after several Palestinians who obtained citizenship through marriage exploited their residency rights to commit terror attacks).

Leftist jurists, who usually denounce all criticism of the court as “anti-democratic,” responded with a blistering attack on Supreme Court President Dorit Beinisch, blaming her for what they deemed an unconscionable ruling even though she herself dissented from it. Why? Because she personally selected the panel members who created the 6-5 majority – and did so knowing full well that her choices would produce that particular outcome.

This is a truly shocking charge: that the Supreme Court president can singlehandedly determine the outcome of any case merely by selecting the panel that hears it. Unfortunately, it happens to be completely true. Supreme Court cases aren’t heard by the entire court, nor are justices assigned randomly or in strict rotation. Every panel is chosen by the court president, who thereby has the power to shape the outcome.

In this case, for instance, the critics claim that initially, a 6-5 majority favored overturning the law. But because Beinisch didn’t push to get the verdict written before Justice Ayala Procaccia reached the mandatory retirement age, Procaccia had to be replaced. And then, instead of replacing her with someone who could also be expected to oppose the law, like Uzi Vogelman or Isaac Amit, the critics charged, Beinisch replaced her with Neal Hendel, whom she knew would uphold it. In short, they accused Beinisch of repeated decisions calculated to produce a ruling upholding the law, because she feared the Knesset’s reaction if it was overturned.

That the Supreme Court president can determine a case’s outcome by choosing the panel is clearly unacceptable, but it’s a problem that’s easily solved: Just assign justices in strict rotation, or by computerized random selection.

Far more interesting, therefore, is how this story explodes the myth of an “apolitical” Supreme Court. For if even the leftist jurists who are the myth’s chief promulgators now admit the justices’ worldviews are so well-known that Beinisch could have predicted how each of them would rule, it’s pretty hard to argue that the court is “apolitical.”

Contrary to popular perception, there’s nothing wrong with justices having political opinions. Indeed, anyone who could live for decades without developing such opinions would have to be so ignorant, unintelligent or detached from reality as to be totally unfit to serve on the nation’s highest court.

Nor is there anything wrong with the fact that justices’ political opinions influence their rulings. Complex legal questions frequently lack a clear-cut answer; in the current case, for instance, where one strikes the balance between a couple’s right to live together in Israel and the state’s right to protect vital public interests like security is inevitably a value judgment, one on which reasonable people of goodwill can disagree. And the more the court intervenes in controversial political, social and moral issues, the truer this is, since these are precisely the types of issues that lack any single “right” answer. Thus to say that justices’ worldviews shouldn’t influence their rulings is to demand the impossible.

What is problematic, however, is attempting to maintain the fiction that justices don’t have opinions, or that they can somehow avoid letting these opinions influence their rulings.
This attempt is increasingly discrediting the entire legal system, because people aren’t stupid. It’s not hard for ordinary Israelis to figure out that when six justices say security justifies restricting Palestinian immigration while five say the “right to marry” trumps security concerns, the disagreement stems mainly from the justices’ different political and moral judgments. It’s also not hard for them to conclude, by extension, that the justices’ worldviews affect other controversial decisions as well. Thus when self-proclaimed defenders of “the rule of law” – including the justices themselves and senior legal officials like the attorney general – keep insisting that the court is and should be “apolitical,” they merely paint themselves as liars and hypocrites. And how can anyone respect a legal system staffed by liars and hypocrites?

Even more importantly, however, the more Israelis realize that the justices’ opinions indeed affect their rulings, the more those Israelis whose views are unrepresented or underrepresented on the court will feel resentful and discriminated against. And that undermines their trust not only in the legal system, but in democracy as a whole. For if a Supreme Court on which their views are permanently underrepresented can, and often does, overturn the elected government’s decisions, then it doesn’t matter how many electoral victories they win; they have no chance of ever getting their policies enacted.

Unfortunately, that is indeed the case under the current judicial appointments system. As I explained

in detail, this system is virtually unique among democracies in that

justices effectively choose their own successors. And, being human, they

inevitably prefer those who share their own views, producing a court

that is unusually ideologically homogeneous.

This problem can

only be solved by changing the appointments process to bring it into

line with the rest of the democratic world – which means transferring

control of the process from unelected legal officials to the people’s

elected representatives. That would ensure a spectrum of opinion on the

court, because governments change regularly, and each new government

would inevitably seek to fill vacancies on the court with justices

sympathetic to its own worldview.

Unfortunately, Prime Minister Binyamin Netanyahu quashed a

bill to do exactly that just six months ago. For the court’s own sake,

he should remove this bill from the freezer and finally enact it.

The writer is a journalist and commentator.