Decade in Review: A Rocky Road for Israeli Courts

IDI Vice President Prof. Yedidia Stern dissects the tenuous road traveled by the Israeli court system, in an article that was published at the end of the third millennium as part of a collaboration between IDI and Walla!, a popular Israeli website.

The past decade was the most traumatic in the history of the Israeli court system. Evidence of this can be found in the dramatic shift in Israeli society's attitude toward the Supreme Court. At the beginning of the decade, 80 percent of Israelis expressed confidence in the Supreme Court, an impressive figure given Israelis' general mistrust of government institutions and the high level of dissension in Israeli society. This figure provided a vote of confidence that enabled Chief Justice Aharon Barak to proudly declare: "We judges have neither sword nor purse; all we have is the public's trust in us."

However, the Israeli Democracy Index, which is published annually by the Israel Democracy Institute, shows a drastic decline in trust in the Court over the course of the decade: in 2005, the percentage of the public that expressed trust in the Supreme Court "to a large degree or to a certain degree" dropped to 72%; it decreased to 68% in 2006; and shrank to 61% in 2007. The level of confidence plunged further in 2008 when another 12% of Israelis joined the 'camp of the suspicious'. At the end of the decade—and for the first time in Israeli history—less than half of the population (49%) expressed trust in the Supreme Court.

In cold, cruel terms this means that every other Israeli on the average Israeli street—and not only in minority communities or in fundamentalist pockets—distrusts the Supreme Court. The enormous credit balance that the Israeli court system had amassed in the bank of public opinion is being depleted at an alarming rate. The court's defenders are dwindling—in the political realm, the media, law faculties, synagogues, and even in the upper echelons of the Justice Ministry. While the words "there are judges in Jerusalem" used to put an end to public debate, today they provoke it. A curse was cast on the most elite, high-caliber, and authoritative system in Israeli society during the past decade.

But, what caused this?

One school of thought lays the blame on the judicial system itself, which has changed its ways. We have witnessed a transition in the Supreme Court's function from passive to active jurisprudence; a shift in the language of law from formal language to value-laden language; a change in the nature of the institution from one that resolves conflicts to one that determines the social-cultural agenda; a change in interpretations; an emphasis on the judge's role as a forger of justice, etc. All of these changes have indeed resulted in the expansion of the Court's sphere of influence. Some maintain that this new situation was born of necessity—the Court fills a void created by the weakness of Israel's political system and the difficulties that have hampered the functioning of the legislative and executive branches. During the past decade, however, growing segments of the public have come to believe that the Court's conscious decision to position itself as a center of power in Israel is a result of judicial hubris. In their view, if the Court decides it must have a say in all matters, then the public must have a say in court.

The other school of thought argues that the source of declining confidence in the court system lies in the major changes taking place in Israeli society as it undergoes a deep and prolonged identity crisis. The Israeli public, through the marketplace of ideas, political institutions, and various focal points of leadership, has been hard-pressed to deal with this crisis. As a result, Israelis have turned to the court system to decide the major questions of Israeli identity.

On one end of the spectrum, the nationalists and those on the political Right claim that they are underrepresented on the Supreme Court and, therefore, view its rulings as diluting the unique Jewish identity of the State; at the other end, the Arab Israelis, the post-Zionists, and the individual members of the liberal, academic elite contend that their views are likewise ignored by the Court and, therefore, claim that its rulings are colored in strongly nationalist hues that do not correspond with the accepted practices in liberal countries.

The same applies to matters of religion and state: religious and Haredi (ultra-Orthodox) citizens believe that the Supreme Court's secular majority strives to curb the influence of religion and weaken Jewish tradition within the State, which runs counter to the political pronouncements made by the coalition majority in the Knesset. Opposite them are groups of secular activists that are disappointed with the Court's acceptance of the status quo, which finds Israeli society victim to religious coercion and Haredi "parasitism." The cumulative result is that many people feel that the Court does not listen to them as carefully as it should, and their response is to punish the system with cast a vote of no-confidence.

These two schools of thought do not contradict one another, but rather complement one another's explanation of the facts: the Court has indeed assumed a dominant and powerful position as a "tiebreaker" in the struggle for Israeli identity. During the past decade, Israelis have been slow to come to terms with this change due to the other pains within the process of social maturation, included: the transformation from a homogeneous society into a multicultural society; the diminishing of social solidarity in the face of sectoral preferences; the replacement of "consociational democracy," which strived for consensus, with "crisis democracy," which craves friction and cutting remarks; and the influence of postmodernism—which slaughters holy cows—and the Court was but one if its victims.

Israeli society is in need of a strong court system that enjoys broad public support. This should be a foremost social-strategic aim. Everyone—the Supreme Court and its dissenters alike—has an obligation to ensure that the Israeli court system be placed on its rightful pedestal, in a place of deepest honor and respect. 

Professor Yedidia Z. Stern is Vice President of IDI and former dean of the Law School at Bar Ilan University.