Religion and the High Court of Justice (Part 2)

This position paper is part of a series of publications concerning two basic and interrelated controversies that polarize Israeli society. The first revolves around matters of religion and state. The second concerns the legitimacy of the organs of  government, and specifically in this context – the legitimacy of the Supreme Court, mainly when sitting as the High Court of Justice. The discussions bearing upon the latter controversy make use of the term 'activism,' which evokes both positive and negative connotations associated, among other things, with claims that the judicial exercise In Israel and in general is essentially political. Our goal in this position paper is to explore the nature of the term 'judicial activism,' which has acquired diverse meanings in public discourse.

The position paper opens with a brief analysis of the socio-political and value-oriented issue designated as 'Religion and State,' along with social and academic characteristics. This is followed by a comprehensive review of the vast and rich literature in Israel on religion and state and judicial activism.Special attention is given to two publications: F. Raday, "Religion and Equality As Mirrored in Case-Law"' in A. Barak, C. Berinson (eds.), The Berinson book (Jerusalem: Nevo, 2000), Vol II, 34; R. Gavison, M. Kremnitzer and Y. Dotan, Judicial Activism: For and Against, The Role of the Supreme Court in Israeli Society (Jerusalem: Yedioth Aharinit and Magnes Press, 2000 Subsequently, this position paper deals with two matters: 1) it presents a three-dimensional model which makes it possible to examine and assess the various ways in with the judicial exercise can be perceived as "activist," and 2) the application of this model to two highly resonant rulings concerning religion and state, which to this day serve as a bases for public discourse on the status of Orthodoxy in Israel's governmental and public constellation and the role of the Supreme Court in this context.

Our point of departure is Bradley Canon's study of judicial activism, which presents a six-parameter model for examining the activism of judicial decisions. According to Canon, it is inappropriate to look for a single meaning for this term; rather, one should discern the various ways in which activism can be manifested.B.C. Canon, "A Framework for the Analysis of Judicial Activism", in S.C. Halpern, C.M. Lamb (eds.), Supreme Court Activism and Restraint (Lexington, Mass.: Lexington Books, 1982) 385 Canon argues that by employing these parameters, it is possible to focus on the various features of activism, thus obtaining a more accurate picture of the judicial exercise. This approach involves recognition of the possibility that the court may be considered "activist" according to some  parameters, but restrained under others. The model also provides another important insight: one shouldn't examine activism on a dichotomous basis (either activist or restrained,) but rather acknowledge a range or sequence of various levels of activism. The three levels of measurement proposed by Canon are: highly activist, somewhat activist, and non-activist. This model enables the writer to engage in quantitative measuring of the activism involved in major judicial operations of the U.S. Supreme Court, an evaluative process occasionally leading to surprising results.

Canon's model and other similar models share several common denominators. These models examine activism from a value-free point of view. The emphasis is on the place the court carves for itself within the web of the governmental institutions of the state. Each of the parameters is used for the measurement of the judicial techniques chosen by the court, while ignoring the value-content of the decision. The second common denominator is associated with the temporal level. All the parameters are based on data that are related to the past and the present, namely to data that occurred prior to, or at the time of, pronouncing the decision. In this context, activism is in the hands of the court. Should the court wish to do so (within its general powers,) it can overturn precedent, law, invalidate a statute, overturn an administrative action, make extensive use of obiter dicta, and so on. Should it do so, it would be viewed as activist; should it refrain from doing so, it would be considered restrained.

We expand this model, relying at certain points on Ronald Dworkin's vision of the constitution and the role of the judiciary and on Kent Roach's writing on the judiciary in a consitutionalist climate.Especially, R. Dworkin, "The Moral Reading and the Majoritarian Premise," in Freedom’s Law: The Moral Reading of The the American Constitution (Oxford: Oxford University Press, 1996) 1; R. Dworkin, Taking Rights Seriously (London: Duckworth, 1977) Chapter 6; K. Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001)  It seems to us that a monolithic definition with regards to the nature of judicial activism does not provide a suitable basis for discussion. Our model seeks to combine all the measurable criteria that are likely to lead to characteristically predictable results. We identified these criteria according to two major parameters: their value-content (neutral or value-laden,) and their location at the temporal level. Accordingly, we identify three levels of parameters: a value-free past-oriented level, a value-free future-oriented level, and a value-oriented level.

The first, past-oriented level groups the parameters that assess  the judicial against the legal background as it existed at the time of the decision, and is based on the ways judges expand their institutional role as arbiter of legal disputes. This is the common context in discussions of activism and in it we include thirteen parameters. Among them are the extent of judicial readiness to discuss the case in the event that there are threshold grounds that could serve as a barrier to the discussion; the level of substance-value rhetoric involved in the ruling, the extent of obiter dicta that were not part of the decision making; the nature of the reasoning; the readiness of the court to extend the bounds of its jurisdiction; and the complexity of the legal question that was pending a decision. In all of these we do not examine the content of the decision, but rather how the court relates to the existing law when it makes its decision on the specific question at hand.

The second level is equally value-free, but here we examine the level of activism under the premise that the courts act within a complex political and social framework. Accordingly, we examine the impact of a judgment after it was pronounced, by taking into consideration the public consent and the social, political and governmental systems' reaction to the ruling. The conceptual grounding of this argument is anchored in the writings on the "constitutional dialogue,"See especially P. Hogg, A. Bushell, "The Charter Dialogue between Courts and Legislators (Or Perhaps the Charter of Rights Isn’t a Bad Thing after All)" (1997) 35 Osgoode Hall L. J. 75 which depict supreme courts as participants in a constitutional framework, and are not granted supremacy or 'the power of the last word.' In this context, we examine the reaction to the ruling on the part of various actors in the public arena. Our basic claim is that the ways in which the public reacts to the ruling further mirror the judicial activism embodied in the judicial decision. Regarding this matter, it is possible to identify a hierarchy of activism. The lowest level of activism at the future-oriented level  would exist when a decision that has not overturned previous law is fully accepted (as such, it will also be viewed as low activism at the past-oriented level). A judicial decision to change of the law, that is fully implemented after its publication, is conceived as activist, since the court did play the role of agent for change; yet such a decision is viewed as less activist than a decision that is overturned or ignored after it has been pronounced. An administrative or legislative reaction that in effect invalidates a judicial decision reflects a substantive deviation on the part of the judiciary from the social and political consensus, thus manifesting its activism on this level.

The last level turns to the content of the decision. The premise underlying the inclusion of this level is that judicial exercise is not merely legal technology (at the first level) or operation in the political arena (the second level) but is also value-laden, as it can express or promote basic constitutional values. On the basis of this premise, it is argued that on the third level, a judicial decision that upholds basic constitutional values should be assessed as less activist, even when it deviates from previous law, contradicts the position of other government branches or uses creative interpretation to extend the meaning of a legal text (tecniques that would endow the decision with a high level of activism in the other levels). We argue for the existence of basic 'thin' constitutional values which support the legal system; thus, the protection of these values should not be conceived of as activist on this level. We consider several common arguments against such a position, inter alia arguments about the relativity of any value-based system and arguments that reject the role of the judiciary as central protector of such values.

We further distinguish between the parameters on the basis of a further criterion: the existence, or lack of, judicial control over these parameters. The judiciary can control and manipulte some of the aspects of activism identified in our model. for example, the court has the choice of whether to use lengthy rhetoric, to append obiter dicta to its decision or to make extensive references to comparative legal sources. Other parameters, such as the nature of the issue brought up before the judge and the kinds of reaction triggered by the judicial decision, are not under judicial control. Under these parameters, the degree of activism is at least partially dictated by external circumstances. The complexity of the legal problem at issue, the presence or absence of a legal solution prior to the petition, the sensitivity of the issue to be decided on and its ideological weight – all of these necessarily have an effect on the possible range of activism. Similarly, public and governmental reaction to the ruling is not in the hands of the court (though to a limited extent, the court has the ability to anticipate this reaction). Thus, specific factual and political alignments may essentially dictate a rise in the level of activism.

Next, we outline possible applications of the model. As an analytical framework, the model enriches the understanding of the nature and role of judicial decision-making. It replaces a stilted vision of courts as final and supreme arbiters with a politico-institutional analysis that considers the judiciary as an actor in a complex social and institutional web of interdependent, shared and competing sovereignties, which engage in a variety of constitutional dialogues, some of them highly value-laden. The model can also provide a useful analytical basis for the study of possible interrelations between different aspects of the judicial exercise.  The model can be used as a template for quantitative study, to join earlier quantitative analyses, notably Canon’s. Although fraught with methodological problems (the first of which would be the relative weighting of the parameters,) we submit that as an indicative tool, the model provides a more suitable framework for the assessment of the diverse and complex ways in which courts impact on society.

In the last part of the position paper we present a quantitative evaluation of two rulings: Bavli and Pesarro (Goldstein).HCJ 1000/92 Bavli v. The High Rabbinical Court, 48 (2) IsrSC 221; High Court of Justice 1031/93 Pessaro (Goldstein) v. Minister of the Interior, 49 (4) IsrSC 661 The former concerns division of assets on divorce, an aspect that can be decided by either the Rabbinical courts or the Civil courts. In Bavli, the High Court of Justice was concerned with the presumption of shared assets, developed by the civil courts and based on values of equality, and ruled that the presumption should be applied by Rabbinical courts. The latter decision concerns the question whether an individual who has undergone a non-Orthodox conversion to Judaism in Israel is entitled to be registered as Jewish in the Population Registry. These decisions were subject to criticism by certain Orthodox and non-Orthodox bodies. We examine the level of activism involved in the two rulings, and recognize divergence of degrees of activism. Particularly, we distinguish between aspects of the decisions that were dictated by the complex external factors, which did not facilitate the judges' decision-making process, and those factors which were under the control of the judges. It was generally possible to identify a higher level of activism in the former parameters in comparison with the latter. When compared, the first decision is characterized by a judicial proclivity toward  activism, while the second ruling reflects a lesser degree of activism. We also find a difference, though not a decisive one, in the extent of negative response to the Pessaro decision, which was lower than the negative reaction to the Bavli ruling. We try to identify a number of factors that might have influenced the extent of the reaction. Among other things, we suggest a possible causal connection between active choice of activist techniques in contexts that lend themselves to judicial choice, on the one hand, and the extent of criticism on the other hand. Substantiating this connection, as well as other influencing factors, requires comprehensive examination that goes beyond the scope of this discussion paper.

Ever since its early days, Israel's Supreme Court, sitting as the High Court of Justice, involved itself, like its counterparts in other countries, in decision-makoing which carries political implications. The court was frequently labeled as 'activist,' usually pejoratively. Yet, were all the denounced judicial decisions as 'activist,' or were critics more concerned with the content of the decision rather than its reasoning? In other words, does the judicial exercise of Israel’s High Court of Justice involve certain techniques or clear tendencies which justifies its label as 'highly activist'? Is a democratic society that shows consent or acquiesces with an activist court of law weakened as a result of such acceptance, or does activism actually contribute to the protection of its basic principles? We hope that the discussion of the nature of activism, as presented in this discussion paper, will contribute to the continuation of a lively, in-depth discussion of these fundamental questions.