High Court Puts the Very Nature of Israel at Risk

In a post-impeachment landscape cluttered with the fallen, one proud victor emerges in the U.S. The Constitution did what it was supposed to.

No such luck in Israel. We Americans look to the judicial to interpret the law and to legislatures to make it. Aharon Barak, chief justice of the Israeli Supreme Court, has found a way to do both at the same time.

It was no surprise when 250,000 religious Israelis gathered on Sunday in a day of prayer concerning the excesses of the Supreme Court. This event, uniting almost every segment of the religious public, gave voice to the frustration of a public tired of a judicial activism that is not tolerated in any Western democracy. Far from threatening the fabric of Israeli democracy, it actually calls for the addition of a good deal more cloth to it.

While Barak happily churns out new policies from his bench, a disproportionate part of his activism is aimed at redefining the Jewishness of the Jewish state to agree more with his devoutly secular tastes.

Many of Israel’s well-wishers around the world, at least those with a sense of history, recognize the need for a Jewish state to correct the millennia of horrors inflicted upon the Jewish people. Barak would strip the state of its spiritual legacy, the very notion that animated and gave birth to it.

The inhabitants of the present state are far more traditional in their religious attitudes than their cousins in the United States, and have traditional views of what a Jewish state should look like. So how does Barak get away with yanking a traditional Judaism from under their feet?

Simple. In the United States, the president nominates justices to the Supreme Court, but the Senate must approve these appointments. No such process is active in Israel. A committee of nine, including the president of the Supreme Court, two other justices, two members of the Knesset, the minister of Justice and other representatives of the legal community, makes the choice.

There are no open hearings or public review. The committee was tolerant and inclusive enough to appoint an Arab justice but cannot find even a single Sephardic justice. (Sephardim--Jews of Eastern and North African descent--make up a majority of Israel’s population.)

The real focus of Sunday’s demonstration was the very nature of the Jewish state. When the court was formed 50 years ago, one seat was set aside for a religious justice. The intent was to welcome the contribution of Jewish law, the oldest continuously practiced system of law known to man. By now, the size of the court has more than doubled, but only a single religious seat remains. Because many decisions are heard by only three judges, the preservation of the single religious seat amounts to tokenism.

The religious public watches in horror as the court unilaterally chips away at the religious status quo that has served well to keep Israel simultaneously democratic and Jewishly defined for a half a century.

The political left’s attempts to dismantle this contract were never achieved in the Knesset. Barak’s court accomplishes the same goal by fiat.

The reactions to Sunday’s prayer gathering were equally disconcerting. Important changes are needed. Some 30% of the Israeli public considers itself religiously observant. The number of justices must be increased to reflect that constituency. Judges on the Supreme Court and lower courts need to expand their knowledge of Jewish legal sources and case law. Finally the process of nominating the judges should be opened up for public review and comment.

If these measures are not implemented, it is not just a runaway court that Israel will have to deal with. As opinionated and argumentative as Israelis can be, in the final analysis, Israel is run through compromise. Barak’s imposition of his own way of looking at things may succeed in in truly dividing the country against itself. Justice for all will be seriously endangered, along with the state itself.