A Truly Supreme Court

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In an op-ed in TheMarker, IDI Vice President Prof. Mordechai Kremnitzer and Dr. Guy Lurie discuss the benefits of establishing a new appellate court between the district courts and the Supreme Court, and assert that it would improve the quality of Israel's judicial services and enhance the work of the Supreme Court.

 Several days ago, Justice Asher Grunis, the President of the Supreme Court, revived the idea of establishing a new appellate court that would be above the district courts and below the Supreme Court. In response, Ido Baum (TheMarker, January 12, 2014) remarked that the plan has slim prospects for implementation because of the opposition it would provoke by ostensibly turning the Supreme Court into some kind of constitutional court.

Setting up a new appellate bench is not a novel initiative. Similar ideas have been discussed by various public committees since the 1980s. The Israel Democracy Institute drafted a detailed proposal several years ago, whereby the new court would handle all appeals by right and rulings by district courts and all discretionary appeals and rulings by magistrate's courts (that is, verdicts and rulings that have already been appealed to the district court). The Supreme Court would handle appeals that raise new, important, or difficult legal issues once permission to appeal to the Court had already been granted, as well as petitions to the High Court of Justice.

Nothing in this plan is meant to turn the Supreme Court into a constitutional court—that is, a court that hears only major constitutional issues, such as the constitutionality of legislation. There is a widespread consensus today that one of the roles of the Israeli Supreme Court is to serve as the top of the Israeli judicial pyramid. Israel appoints its very best jurists to the Supreme Court so that they can rule in all areas of law. They provide leadership and direction to the other courts in the areas of criminal, civil, and constitutional law.

However, although the Supreme Court is officially responsible for providing direction to other courts, it is impossible for it to fulfill this role in practice because the workload of its 15 justices is excessive by any standard. By way of illustration, according to data provided by the Courts' Administration, in 2012 alone, 9,492 new files were opened in the Supreme Court and 9,847 were closed. Of those opened, 3,871 were principal cases, which must be heard by a panel of three or more justices; the others involved requests for permission to appeal or were related to detention orders and the like—matters that are generally handled by a single justice. The average duration of principal cases in the Supreme Court was 15½ months, criminal appeals lasted 12½ months, and civil appeals had a lifespan of approximately 21½ months. With such a workload, is it possible for Supreme Court justices to truly dedicate themselves to their work, to develop the law, and to write profound and quality verdicts?

By way of comparison, the Supreme Court of the United Kingdom—which is not a constitutional court (the United Kingdom does not have a constitution)—handled only 83 cases during the same period. The figures are similar for other Supreme Courts (which are also not constitutional courts), such as the United States Supreme Court (some 150 cases annually) and the Supreme Court of Canada (fewer than 100 cases).

A new appellate court would make it possible for the Supreme Court to do its job properly. It would also make appeals of district court rulings more efficient, improve the quality of the judicial services provided to citizens, and allow justice to be rendered more swiftly by both the Supreme Court and the new appellate court. A new appellate court would not transform the Supreme Court into a constitutional court, but would allow it to function as a genuine Supreme Court, capable of interpreting Israeli law in a more stable, correct, and clearer fashion. 

Prof. Mordechai Kremnitzer is Vice President of Research at the Israel Democracy Institute. Dr. Guy Lurie is a Researcher at the Institute.

This article was originally published in Hebrew in TheMarker on January 16, 2014.