The Consequences of Judicial Activism

Israel’s Supreme Court lambasted the government this week for disobeying a temporary injunction to stop work on a West Bank road. This isn’t the first time the court has complained of governmental noncompliance with its orders; as various commentators have noted (here and here, for instance), noncompliance is rapidly becoming routine. Yet both court and commentators tend to overlook the court’s own responsibility for this problem.

In March, Haaretz published a list (Hebrew only) of nine court orders the government had yet to obey. They included orders to build 245 new classrooms in East Jerusalem, to reinforce every school within rocket range of Gaza against rockets, to build a high school in an Arab village, to relocate the security fence near the West Bank village of Bili’in, and to do the same near the village of Azzoun.

These rulings have one thing in common: each would cost hundreds of millions of shekels to implement; collectively, they would cost billions. Thus to obey them, the government would have to slash billions of shekels from other parts of the budget. And while I favor budget-cutting, most quick and easy big cuts would have disastrous consequences: slashing welfare, say, or canceling all army training exercises. Productive cuts, such as eliminating unnecessary layers of civil-service bureaucracy, are neither quick nor easy, as they would entail major fights with powerful government unions. Thus in the real world, there is no practical way to promptly obey all the court’s rulings.

But aside from the practical problem, these rulings embody a more fundamental problem: the judicial usurpation of government prerogatives. Clearly, such rulings reduce the government’s ability to set its own budgetary priorities, but the problem goes way beyond budgets.

Take the ruling on reinforcing schools against rockets. Governments certainly should protect their citizens, but how best to do so is a judgment call, of precisely the sort citizens elect their governments to make. There is no legal basis for the court to require the government to protect its citizens via one particular method, by reinforcing schools, rather than, for instance, by military action against Hamas (which, when Israel finally tried it 17 months ago, proved quite effective).

Similarly, while the government is legally obligated to provide schooling, there is no legal basis for requiring it to build a high school in one particular village rather than, say, busing students to school in a neighboring town.

The practical impossibility of implementing some of the court’s orders, combined with increasing resentment of the court’s usurpation of governmental prerogatives, has generated a response of passive resistance — i.e., noncompliance. But once governments get in the habit of ignoring court orders, it quickly spreads even to orders that there are no grounds for disobeying, like this week’s injunction. And the result is anarchy.

The only way to stop this dangerous trend is by prompt legislative action to restrain the court’s growing reach. But unfortunately, no government has yet had the stomach for the public battle this would entail. It’s much easier to just keep quietly disobeying court orders.