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Supreme Court Under Attack
The Association for Civil Rights in Israel
Position Paper
February 29, 2012

http://www.acri.org.il/en/2012/02/29/position-paper-supreme-court-under-attack/

In every substantive democracy, the judiciary – particularly the Supreme Court – constitutes a central pillar in the protection of human rights. Yet in recent years in Israel, the Supreme Court has served as one of the main targets of the assault on the democratic foundations of the state, an assault that has other fronts as well – legislative and public efforts to constrain freedom of expression, violate the rights of Israel’s Arab minority, and weaken civil society organizations.

On the surface, the main argument against the Supreme Court or High Court of Justice relates to its “activism” or even “leftwing bias”. The claim about judicial activism stems from the power of the Court to nullify laws or provisions in laws; thus, the Court is accused of arrogantly overturning decisions made by the Knesset, decisions that “express the will of the majority”. In actuality, the Supreme Court generally refrains from interfering in Knesset legislation, with a few exceptions, and can hardly be called activist. Nevertheless, public debate about this matter – and about relations between the Supreme Court and the legislature in general – is appropriate and important.

If the Court has actually not been very activist, why is it the target of so much aggression? The accusation that the Court is “leftist” is the real source of the stepped-up attacks against it by the government and the Knesset. The claim that it is “leftwing” is a code word for the clash between the current political majority, with its aspiration to strengthen the nationalist-Jewish aspects of Israeli identity and life, and the values of equality. Those who stand up for the latter discover themselves to be obstacles in the way of the majority with all its political clout.

Thus, efforts to undermine the Court are not a response to its “over-activism”, but an assault on the legal analysis of the Supreme Court, its human rights perspective, and its constitutional interpretations, which are inconsistent with the values, worldview, and political outlook of its critics. Legitimate discourse about the Supreme Court’s “judicial activism” actually serves as a cover for the real critique, which has to do with the content of the judicial rulings. Thus, the real reason for the clash – the efforts to limit the power of the Supreme Court, to influence its structure and composition, and even to subordinate it to the legislative or executive branch – is the judicial decision-making, which takes into account equality, human rights, and constitutional rights, considerations that, in the opinion of the current Knesset majority, thwart the realization of its nationalist-Jewish-political agenda.

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