Trust is on the Wane

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Despite a decline in trust - the public still believes that in the Court’s role as a professional independent entity and guardian of democratic principles.

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The 2021 Israeli Democracy Index compiled by the Viterbi Family Center for Public Opinion and Policy Research at the Israel Democracy Institute reveals a further decline in public trust in the Supreme Court. This trend is not an anomaly: over the last decade there has been a similar decrease in the public’s trust in all government institutions. In fact, despite the continuing decline, the Supreme Court remains one of the three institutions that enjoy the highest level of confidence. The disturbing figures on the public’s lack of trust in the judicial branch appear in the section of the Democracy Index that explores the public's attitudes on the judiciary as a whole. The findings are troublesome; but, as I will explain, they also indicate that a significant majority of Israelis still believe that the judicial branch has a constitutional role to protect Israeli democracy.

What is unsettling is the idea that has taken root among relatively large numbers in the population, and among Jews- primarily among the right wing, religious, and ultra-Orthodox- that the process for selecting judges is tainted by political considerations, that judges are subjected to political pressure, and that the system is not neutral. Even if these ideas are not rooted in fact, their very existence is a cause for concern.

For almost every issue examined, we see serious political polarization (troubling in its own right) among Jews: Those on the left and center have more confidence in the judicial branch than those on the right. But a not-insignificant share of the population believes that political (rather than professional) considerations influence the selection of judges. If this idea gains ground among the public, it is liable to erode the ethos of the judge as a neutral, independent, and apolitical arbiter and will no doubt further diminish public trust in the judiciary.

This negative picture should not come as a surprise. For years, the judicial system has been the target of a propaganda assault that portrays it as politically biased. As a result of this onslaught, a relatively large proportion of the public, including many who have no direct contact or deep familiarity with the system, believe that judges do not mete out equal treatment to those who stand before them, and that the State Attorney's office is driven by political motives. However, this picture is not backed up by data on the hundreds of thousands of cases that the courts hear every year.

Despite the contribution of this propaganda campaign to the waning public trust in the courts, the findings nevertheless impel the judicial system to assess its share in this negative image. Specifically, it must consider the possibility of administrative reforms to increase its efficiency and its transparency (for example, live broadcasts of more trials, and publication of a performance dashboard that presents up-to-date figures on the courts’ activities), and strengthen the judicial branch’s independence and accountability with regard to its operation (for example, transferring administrative powers from the Justice Minister to the court system, along with the establishment of a Council for the Judiciary to supervise it).

Despite this gloomy picture, if we turn our gaze from the public’s confidence in the courts to its perception of their legitimacy, a completely different picture emerges. First, the link revealed by the Index between a perception of the courts as politicized and of its proceedings as unfair, indicates that in the public eye, the system will be assessed by its ability to remain free and independent. That is, the public sees the courts’ legitimate role as being a professional entity that is separate from the political system. (We may perhaps explain some sectors’ dwindling trust by their feeling that the courts are not sufficiently independent and consequently shy away from intervening in actions and decisions by the other branches of government.) No less important is that the Index reveals that 56% of the public agrees that the Supreme Court must have the power to strike down laws passed by the Knesset if they violate the basic principles of democracy. In other words, a substantial share of the public still believes in the court’s constitutional function in Israeli democracy: to defend constitutional principles, even if in opposition to the politicians.

So those who allege that the findings of the Israel Democracy Index justify reforms that would curtail the Supreme Court’s powers or independence—such as by increasing the political influence on the selection of justices or passing an override clause that would empower the Knesset to nullify its rulings—are mistaken. Most Israelis want a professional and independent court and continue to support the central role that the judicial branch plays in the Israeli system of checks and balances.

The article was published in the Times of Israel.