Restoring the pre-Barak juridical culture of realism and restraint will be a long process. Students will need to be reintroduced to ideas regarding representative government and limited bureaucracy.
It is no secret that the state of Israel suffers from both external and internal threats to its life as a flourishing democracy. Less well known is that one of the most potent such threats arises from the unlikeliest of quarters: Israel’s own hyperactive justice system.
Let me begin with an anecdote. Even in Israel’s famously contentious environment, it’s startling to see a government minister interrupt a supreme-court hearing to shout that the state attorney representing his own ministry has been sabotaging him—and that he wants to represent himself. But that is exactly what Ehud Olmert, then Israel’s minister of industry, did in the summer of 2003.
The story, in brief, was this: the Israel Lands Authority (ILA), then under the control of Olmert’s ministry, had reached a revenue-sharing deal with a consortium of kibbutzim to rezone and sell state-owned agricultural land under lease to the kibbutzim. A non-governmental organization (NGO) then petitioned the Supreme Court to invalidate the deal on the grounds that the deal “over-compensated” the (predominantly Ashkenazi and presumably privileged) kibbutzim and had thus failed to achieve “distributive justice.” Since “distributive justice” is the sort of policy issue in which most courts, in most countries, are loath to get involved, the ILA thought it had a strong case. So Olmert was stunned when Israel’s attorney general, whose position entails defending state agencies in court, not only refused to defend the ministry—his client—but sent a state attorney to undermine its case.
Olmert’s outrage was his alone; nobody else in Israel was even slightly surprised. Already a decade had passed since Israel’s high court opened its doors to any petitioner on any issue that caught its fancy, at the same time subordinating elected officials to legal bureaucrats ostensibly in place to advise and represent them. In doing so, the judiciary effectively emasculated the executive branch—as it would ultimately emasculate the legislative branch—while empowering a cadre of extremely powerful government lawyers unaccountable to the public.
Here’s how it happened.
One of the foundations of republican government is the principle of checks and balances, with different branches of government serving to constrain the power of the others. In such a system, a key element is an independent judiciary whose job is to compel adherence to the law and prevent other actors from exceeding their legal authority.
But while the courts are necessary to preserve the balance of power, they must themselves be kept in check. What makes them especially dangerous is that, unlike elected officials, they are typically not answerable to voters. Thus, when judges invalidate some state policy, they are in effect, if indirectly, overruling a choice made by the citizens themselves. For this reason, modern democracies impose constraints both on the kinds of disputes the courts may address and on the specific ways they may resolve those disputes.
For the first three decades of Israel’s history, its courts—as is the practice in all democratic legal systems—avoided judging the substance of administrative actions and intervened only when a government agency exceeded its legal authority. Indeed, Israel’s legislative body, the Knesset, initially regarded the courts as such benign institutions that in 1953 it (misguidedly) passed a law allowing judges themselves to play the dominant role in determining judicial appointments. Predictably, however, the effect of that system, unique among democracies, was that slowly but inexorably the Supreme Court became ideologically homogeneous, thereby rendering its long record of judicial prudence vulnerable to dramatic reversal.
The major catalyst in this reversal was Aharon Barak. Born in Lithuania and, with his parents, a survivor of the Holocaust, educated at the Hebrew University and briefly at Harvard, and from 1975 to 1978 the attorney general of Israel, Barak then joined the Supreme Court, becoming its chief justice in 1995. From his perch on the court he launched not one but two revolutions. In the first, beginning in 1981, the court weakened the previous limitations on its interventions in state policy. In the second, less well-known but more insidious, it empowered a judicial-bureaucratic complex to nip government policies in the bud—before they could even reach the courts.
In his initial revolution, Barak broadened the grounds on which courts could intervene in state policy and then eliminated two crucial limitations—in legal jargon, “standing” and “justiciability”—on the sorts of cases they could hear.
Grounds: Until 1981, as noted above, the courts would not invalidate a government policy unless it could be regarded as an outright abuse of authority. That year, Barak ruled that even if a state agency’s criteria for determining its policy were relevant and lawful but, in the court’s opinion, the agency nevertheless failed to “give each of the relevant considerations appropriate weight,” the court could invalidate the policy as “unreasonable.” In plain English, it could invalidate any policy it didn’t like.
This opened the floodgates to judicial second-guessing of all sorts of state policies, no matter how beneficial or how picayune. In short order, the courts invalidated decisions regarding the placement of sidewalk tables at cafés, nursery-school subsidies for self-employed mothers, the location of a soccer stadium, the scope of farm subsidies, the worthiness of prize winners, and more.
Standing: Even after 1981, a petitioner wanting to bring a case before the court had to prove that he was directly harmed by the law or policy he was challenging. For instance, in 1981 the legal gadfly Yehuda Ressler brought a case disputing military exemptions for full-time yeshiva students; since he had no coherent claim to be a victim of these exceptions, his petition was rejected.
By 1986, however, when Ressler brought his petition a second time, the court, with Barak at its head, ruled that standing was no longer a requirement. (Ressler’s petition was again ultimately rejected, but for other reasons.) It was a watershed moment. In the following years, the court entertained petitions by various political actors, including opposition Knesset members, offended by one or another government policy. Such petitions included demands that secret clauses in coalition agreements among political parties be made public; that the attorney general pursue prosecutions he had chosen to drop; that a candidate for the office of attorney general be rejected as unsuitable; and that a decision by the justice minister not to extradite an Israeli convicted in a foreign court be reversed. In none of these cases was the petitioner directly harmed by the law or policy being challenged.
Justiciability: All of the petitions listed above not only lacked standing but also fell outside the constitutional role of the courts. That is, they lacked justiciability, which requires among other things that courts refrain from interfering in “political questions”: the domain of the elected branches. But in the 1986 Ressler decision, Barak, after dispensing with the requirements for standing, also declared that “every instance of a decision by a government agency”—even “going to war or making peace”’—was justiciable.
Subsequently, Barak would go on to cite his theoretical abolition of both standing and justiciability as established jurisprudence. Freed of all constraints, the court now addressed such security issues as challenges to military tactics, the placement of the separation barrier near the Green Line, and negotiated deals involving prisoner releases. Regarding this judicial intervention in security matters, Mishael Cheshin, Barak’s colleague on the Supreme Court, once observed that “Justice Barak is willing to see 30 or 50 people blown up for the sake of human rights.”
The court also weighed in on the worthiness of government officials. In 1993, two senior officials of the Shas party, Interior Minister Aryeh Deri and his deputy Rafael Pinhasi, were indicted on corruption charges. Prime Minister Yitzhak Rabin did not wish to fire the two ministers. Nor did the law require him to do so, since they had been indicted but not yet convicted. But when several NGOs brought suit against the prime minister for exercising this right, the court enjoined him to fire them both, precipitating a major political crisis. In 2013, emboldened by its success in deposing appointed ministers, the court would go a step farther by deposing three elected mayors, each of whom had been similarly indicted but not convicted. (The voters, unimpressed, re-elected all three shortly thereafter.)
The Deri and Pinhasi cases also triggered Barak’s second revolution, to which we now turn.
The Supreme Court’s stunning extension of its own authority has been duly noted by observers in Israel and abroad. Among American experts, both Robert Bork (“Barak’s Rule,” Azure, Winter 2007) and Richard Posner (“Enlightened Despot,” the New Republic, April 23, 2007) would write scathing reviews of Aharon Barak’s 2006 book, The Judge in a Democracy. Less publicized outside of Israel, but significantly more damaging in its day-to-day consequences, was the court’s empowerment of proxies to expand its own authority at the expense of the legislative and executive branches.
In the 1993 Pinhasi case, Dorit Beinisch, then the state attorney and later to become chief justice of the Supreme Court, dryly read out the letter written by Yitzhak Rabin, the prime minister of Israel and her client, expressing his position that he had no legal duty to fire the accused deputy minister. She then proceeded to argue against her client.
In his decision, Barak addressed an obvious objection—namely, that the government had been denied due process to defend its position in court. In what is perhaps the single most consequential passage in the history of Israeli jurisprudence, Barak argued that the attorney general, as the “authorized interpreter of the law with regard to the executive branch,” was under no obligation to defend the policies of the prime minister. In Barak’s words,
There are two basic principles in this matter. First, that the attorney general’s opinion on a legal matter reflects, as far as the government is concerned, the existing legal situation. Second, that representation of the state and government agencies is entrusted to the attorney general. . . . Thus, if—in the attorney general’s opinion—the government agency is not acting in accordance with law, it is the attorney general’s prerogative to inform the court that he will not defend the agency’s act.
In this ruling, the court established both that elected officials would be bound by the views of legal advisers ostensibly subordinate to them and that the government and its ministries were not free to choose their representation in court but would have to make do with bureaucrats assigned to them by the attorney general’s office. Each of these two principles, unparalleled in democratic nations, has had precisely the chilling effect on governance that one might expect, especially when combined with the court’s effective control over judicial appointments and the power it granted itself to block appointments of which it does not approve.
As for the attorney general, although appointed by the government, he or she must be selected from a very small set of candidates nominated by a committee; that committee is headed by a retired supreme-court justice who is appointed, in turn, by the sitting chief justice. This system, devised by the justices themselves, makes the attorney general a judicial plant in the executive branch. Since the opinions of attorneys general possess binding force, they have essentially been handed veto power over government policy. Moreover, this same binding authority has since been extended to the entire staff of the attorney general’s office and thence to legal advisers of individual ministries: that is, bureaucrats neither chosen by their supposed bosses nor elected by the people. These advisers, in the understated words of former Justice Minister Haim Ramon, “silence the government and greatly impair the ability of ministers to implement their policies. . . . This is not legal advice, this is coercion.”
Take the case of a multibillion-dollar train line between Jerusalem and Tel Aviv, a project initiated by the ministry of transportation. A deputy attorney general, expressing his opposition to the fact that 350 meters of track crossed the Green Line, advised the ministry that it was in violation of the Geneva Convention and that he would allow it only if the plans were broadened to include a new fenced highway serving Palestinian transit from Hebron to Gaza. The government, resigned to the courts’ accepting this “advice” as binding, obediently revised its plans, incurring a delay of years at immense cost.
The attorney general’s office, following the court’s example, also does not refrain from weighing in on military matters. Throughout Operation Protective Edge in Gaza earlier this year, Israel continued supplying electricity to Gaza even as the electricity was being used by Hamas for the production of rockets. As Prime Minister Netanyahu explained the anomaly, “our legal advisers won’t let us stop the supply of electricity to Gaza.”
Once the high court conflated its vague and subjective notion of “unreasonableness”—i.e., something not to the court’s liking—with illegality, the legal bureaucracy followed suit. Today, it is sufficient for a legal adviser to declare some proposal “unreasonable” (or even “unsuitable,” or “inappropriate”) to kill it. Similarly, government officials themselves can be disqualified from office on bogus grounds by attorneys general and their subordinates—as routinely happens. In early 2011, for example, preliminary investigations by the attorney general’s office were enough to derail the appointments of the heads of the army, the police, and the prison system.
And that is not all. As a result of the second principle established by Barak in the 1993 Pinhasi decision, even the right to choose one’s representation before the courts is denied to the state and its agencies. That is how Ehud Olmert came to be reduced to shouting in court that he’d been sabotaged by his own lawyer on a petition that should not have been heard in the first place. (The petitioner, an NGO, had no standing, that is, no coherent claim to being a victim of the policy in question; and the issue, being political, was not justiciable.) The court showed little interest in Olmert’s objections. Ultimately, it ruled against him and the Lands Authority alike, exacerbating an acute land shortage from which Israel suffers to this day.
Indeed, now that that the prerogative of the government’s lawyers to argue against their clients’ positions in court has been established, they are no longer even compelled to exercise that prerogative. The threat itself will do. A lawyer in the attorney general’s office can warn that the office won’t defend a bill should it be challenged, and the legislature, lacking recourse to other lawyers, will preemptively back down.
For all the harm done by the court’s unilateral extension of its own authority—Barak’s first revolution—at least its judicial interventions are carried out in the light of day and with a semblance of due process. The machinations of the legal bureaucracy embedded in ministries and other agencies of government—Barak’s second revolution—take place behind closed doors, preventing cases from even reaching court; the chilling effect is consummate.
Israel’s justice system is in desperate need of reforms that can end this tyranny of the legal bureaucracy. The particulars of the reform are not difficult to identify: allowing the government and its ministries to hire and fire legal advisers at their discretion; allowing government agencies to choose their representation in court; turning judicial appointments over to elected officials; restoring the requirement of standing; and dividing the powers of the attorney general among several individuals. Elected officials, across the political spectrum, have a clear interest in advancing these reforms. Why, then, have they not pursued them?
There are three different answers to this question, each sufficient in itself. The first is that politicians are afraid of the long arm of the judicial bureaucracy, which can punish them for challenging its authority. The second is that the Supreme Court and its bureaucratic allies know how to use the power they have arrogated to themselves in order to stymie attempts at reform. The third is that Israel’s political culture needs to be changed before its laws can be changed.
The judicial-bureaucratic complex has already made a habit of intimidating high-ranking politicians. It is perhaps no coincidence that investigations have been launched against four recent justice ministers and one whose candidacy for the position was killed in advance, as well as against every prime minister who has served in the past 20 years. A few of these individuals might actually have been guilty of the offenses they were accused of—two were convicted—but in the majority of cases an investigation or, for some, the threat of an investigation has been sufficient to keep the politicians on a tight leash. Simply by allowing a bogus case to remain open, the court (or the attorney general) can exert its influence on policymaking.
Even if some courageous politician musters the courage to advance a reform proposal, it will have no chance of passage. At the preliminary stage it will need to be vetted by the attorney general and edited by ministry lawyers; in the event it somehow makes it far enough to be challenged in court (as it surely will be), it will be “represented” by legal counsel under no obligation to defend it; it will then need to be upheld by a court not especially inclined to compromise its own power. Why should legislators bother in the first place?
In the end, the only real path toward reform lies through a change in Israel’s legal culture. The judicial-bureaucratic complex has invested decades in persuading the public that elected politicians are dangerous because they wish to advance the interests of their constituencies, while prosecutors, legal advisers, and judges are neutral, free of personal and institutional interests, and committed only to the cause of justice. (As Barak once put it, apparently without irony: The judge “does not seek power, nor does he crave to rule. He does not seek to impose his personal views on society. He wishes only to do justice.”)
Students in Israeli law schools learn that it is their sacred duty to rescue public policy from the clutches of democratically-elected officials who wish to “politicize” it. Consider, for example, a landmark 1994 decision (in the Bank Hamizrahi case) justifying judicial review of laws. First, Barak conjured the existence of what he called the “fundamental values of society”:
[W]hen judges interpret the constitution and invalidate contradictory laws they give expression to the fundamental values of society that have developed over time. . . . Judicial review of constitutionality enables a society to be true to itself and to honor its basic conceptions.
Elsewhere, Barak helpfully explained that the society to whose fundamental values he referred was not the entire society but rather only the “enlightened public.” And what were those “fundamental values”? Whatever the court said they were. In other words: the Law is us.
Generations of Israeli law students have been taught Barak’s doctrine as gospel. Restoring the pre-Barak juridical culture of realism and restraint will thus be a long process. Students will need to be reintroduced to now-heretical ideas regarding representative government and limited bureaucracy, presumably by studying non-Israeli scholarship on the topic. These ideas will need to filter down to the general public as well, so that the courage to advance reforms becomes—for a politician, a party, or a movement—an advantage rather than a liability.
Who is up to the challenge? That is the question of the hour.