Coercing Virtue

by Robert H. Bork

  The extremes to which Barak’s judicial philosophy can carry him is shown by his statement that the deployment of troops in wartime is a justiciable issue. Barak recognizes, however, that the public may not want the Court deciding certain issues. In highly political cases, therefore, such as that involving the Oslo peace process, Barak and the majority of the Court chose to limit universal justiciability and not to intervene directly. A second exception to universal justiciability arises in cases where justice may not seem to be done, but Court action itself would undermine public confidence in the judiciary. These exceptions clearly overlap, if they are not identical. In both instances, however, the Court’s power is not limited by principle, but only by fear of adverse public reaction. This justification denotes concern for the prestige of the Court, not for the integrity of the law or the vitality of democracy.

  A comparison with the activist American Supreme Court demonstrates how far the Israeli Supreme Court has gone. The American Court does not hold that law is everywhere. With the sole exception of the Thirteenth Amendment, which bans involuntary servitude (any condition approaching that of slavery), the American Constitution applies only to action taken by the state, not to its inaction. Although the Court has strained to find state action in cases of racial discrimination, it remains true that most private behavior is beyond the reach of the Court’s constitutional power and must be regulated, if at all, according to laws made by elected representatives in the legislatures.

  In the United States, the doctrine of standing has, as its constitutional core, the requirement that the plaintiff must have suffered an “injury in fact” – an invasion of a legally protected interest that is concrete, particularized, and either actual or imminent. It cannot be merely conjectural or hypothetical. An American federal court could not, for example, entertain a citizen’s lawsuit complaining that a Cabinet member was not fit for her position. The Court has held that taxpayers and citizens lacked standing to sue on the claim that the Constitution required the CIA’s budget to be published, or that members of Congress are constitutionally disqualified from holding reserve commissions in the armed forces. By comparison, when members of a citizens’ rights movement challenged the Israeli justice minister’s refusal to extradite a person wanted for murder abroad, the majority of the Court asserted a new standard by holding that the petition could be reviewed by the Court. The Justices said that, because it was a matter of genuine public concern and no one else in the country had a more direct interest in the case, the Court would hear the petition.

  The Israeli Court’s power is further magnified by the ability of litigants complaining about the government to proceed directly to the Supreme Court, rather than reaching that tribunal after trial and appeal in lower courts. U.S. law about justiciability derives from the separation of the powers of the three branches of government. A court will stay its hand, according to Baker v. Carr (1961), for several reasons: a textually demonstrable constitutional commitment of the issue to another branch of government; a lack of judicially discoverable and manageable standards for resolving a dispute; an inability to decide without a determination of policy that is clearly of nonjudicial discretion; an inability for the court to decide the case without expressing a lack of respect due to coordinate branches of government; an unusual need for unquestioning adherence to a political decision already made; or the potential for embarrassment from multifarious pronouncements by various departments on one question.

  The American Court applies these concepts of state action, standing, and justiciability to confine its own power. These self-limiting doctrines are, of course, more complex than a brief statement can indicate, but the nub of the matter is clear: these boundaries on judicial power assist in preserving legislative power and democratic authority.

  In addition to this astonishing array of judicial powers, the selection process for the Israeli Court’s Justices, established in 1953, ensures, as Mordechai Haller says, that “in Israel the judiciary selects itself.” The choice of a Justice is made by a Judicial Selections Committee composed of the president of the Supreme Court, two other Justices chosen by that Court, the justice minister, an additional minister appointed by the government, two members of the Knesset, and two members of the Israeli Bar Association. That makeup, according to Haller, ensures that the influence of the Justices is “nearly absolute” and “it is almost unheard of that a nominee to the high court would be either approved or rejected over the objections of the justices on the committee.” Quite naturally, the Justices prefer candidates with views similar to their own. The result is a Court without serious internal dissension or debate, a Court that agrees with and is led by Aharon Barak.

  The activist decisions of the Supreme Court of Israel fall into two categories. The first comprises interventions in the internal operations of the other branches of government. These decisions have been extraordinarily intrusive, perhaps reflecting the belief that the Knesset and the executive are not trustworthy. The second includes rulings on human rights. These decisions display a willingness to substitute the Court’s own extremely liberal New Class values for the moral and prudent choices made by democratic institutions. The Court’s values implement a socialist impulse in cultural and social affairs: they are universalistic in scope and, to the exclusion of competing values, stress such concerns as the dignity, freedom, and equality of individuals. As rhetoric, those words are highly persuasive; as operational concepts, they have often proved highly deleterious.

  Interference with the Workings of Government

  The Court’s activism became undisguised imperialism when, in a bold and unprecedented stroke, it revolutionalized the internal structure of government – and the distribution of governmental power – by anointing the attorney general as the supreme authority within the executive branch. In the 1993 Pinhasi case (Amitai-Citizens for Good Government and Integrity v. The Prime Minister of Israel) the issue was whether Deputy Religious Affairs Minister Rafael Pinhasi had to resign when he was indicted for tax and party-funding violations. Prime Minister Yitzhak Rabin would not fire Pinhasi because that would endanger the thin parliamentary majority in favor of the Oslo accords. The attorney general, who had sole authority to represent the government in litigation, announced that he would not defend Rabin’s decision. The Court went beyond the legal merits of the case to announce that the government (though not the Court) was bound by the attorney general’s decision – effectively converting that officer into a judge dominating the executive branch from within.

  Perhaps not surprisingly, jurists proclaimed the Court’s decision a victory for the rule of law. It is difficult to understand, however, why making a subordinate government official the arbiter of the government’s actions, responsible only to his own sense of discretion, is not the antithesis of the rule of law. The government may have quite respectable legal arguments opposed to the attorney general’s view, but those views cannot be heard by the Court and are set at naught. Still worse, an attorney general’s decision is effectively final even when it is not based in law but is a conclusion about policy. “In Israel, with the world’s most liberal rules of standing and justiciability,” Jonathan Rosenblum noted, “the only party that cannot get a ruling on the legality of governmental action is the government itself, if the Attorney General refuses to defend the government’s position.”

  Pinhasi was the culmination of a series of aggrandizements by which successive attorneys general expanded the powers of the office. Foremost among them was none other than Aharon Barak, who later wrote the Pinhasi opinion when he was on the Court. His prosecution of numerous powerful figures in the Labor Party, including the wife of the prime minister, “did much to cultivate the idea that only a truly independent attorney general, free of any political concerns, could effectively combat corruption in high office,” according to Evelyn Gordon.3 In the process, however, independent Israeli attorneys general have committed a series of outrages, or what other democracies would consider outrages.

>   Attorneys general have, for example, objected to independent telecommunications and postal authorities, not on legal, but on economic grounds; conducted a vitriolic campaign against a new Knesset faction and its leader; and judged the propriety of political compromises essential to the formation of coalition governments not on the ground that they were illegal, but merely because, in the opinion of the attorney general, the compromises were “inappropriate.” A man was denied the position of minister of public security because the attorney general said an indictment for violation of privacy disqualified the applicant from holding any position with access to sensitive personal information. The fact that, as a member of the special “security cabinet,” he had access to all classified documents, in any event, was ignored. He was acquitted, but too late to reverse his disqualification. As Evelyn Gordon justly said: “With the alacrity of a seasoned despot, [the attorney general] managed to take his own, wholly unlegislated notions of political propriety, translate them into a legal presumption of guilt without trial, and impose them on the composition of government without having to convince anyone he was right – handing a major setback to the innocent [man] and the tens of thousands of voters who had found voice in his party.”

  The full extent of the abuse to which the powers of the attorney general lend themselves was disclosed when Prime Minister Netanyahu named Ya’akov Ne’eman as justice minister. A petitioner hostile to Ne’eman accused him of a number of crimes, most of which had already been investigated and found baseless. Though Ne’eman was initially investigated on a charge of suborning a witness, the prosecution found insufficient evidence to bring a case. But simultaneous with its announcement that there would be no indictment for subornation, the prosecution announced that suspicion remained and that Ne’eman would be indicted instead for perjury and obstruction of justice for his conduct during the subornation investigation. The evidence for that charge was trivial mistakes about such things as dates in his affidavit, anomalies he discovered himself and corrected. Some months later Ne’eman was acquitted in court, but he had already had to resign because of the attorney general’s charges. Gordon remarks: “The mindboggling assertion that the role of the nation’s top law enforcement officials includes besmirching public officials whom they fail to indict – an assumption that met with virtually no public opposition – speaks volumes not only about the tendentiousness of [the law enforcement officials] but also about a poisonous admixture of the legal and moral responsibilities that the public has come to expect in the attorney-general.” Similarly, when the attorney general found there was not enough evidence to indict either Prime Minister Netanyahu or Justice Minister Hanegbi, he issued a report that there was nevertheless “real suspicion” that Netanyahu was, in fact, guilty.4

  The powers the Court has lodged in the attorney general can hardly be overestimated. The Movement for Quality Government in Israel v. Prime Minister Ariel Sharon (2001) arose from Attorney General Elyakim Rubinstein’s ruling that Sharon could not use his son, Omri, as an emissary to Yasser Arafat. Although Omri was not to be paid, Rubinstein said it was nepotistic, not in accord with the norms of good government, and therefore impermissible. He qualified that by saying Omri could be used if it were really a “life-or-death” situation. Ignoring the ruling, Sharon continued to use Omri, saying that, in Israel’s situation, all such missions are potentially life or death. The Movement for Quality Government went to the Court, arguing that Sharon was breaking the law by violating Rubinstein’s directive. After a few hearings, Sharon surrendered and told the Court that though he thought Rubenstein wrong in principle, he would not use Omri without Rubenstein’s permission. Rubinstein replied that if he received such a request, he would consult with various security and defense officials before giving or denying consent. The unelected attorney general, rather than the elected prime minister, now decides when a life-or-death situation exists and when it does not.

  The prime minister was further hamstrung when the Court, in denying a new government the power to replace the civil service commissioner, announced a rationale that, at the very least, strongly suggests that a new government may not replace the attorney general, and hence that no attorney general may be dismissed at any time. Even the government’s authority to choose an attorney general when the post becomes vacant may be put in question. Bills were drawn up by both the Netanyahu and the Barak governments which stated that the government must submit its proposed candidates for attorney general to a five-member committee that could propose its own candidates. The committee’s choice would be referred to the Cabinet, which could approve or reject the nominee. The committee, headed by a retired Supreme Court Justice, would be composed, additionally, of a former justice minister or attorney general appointed by the Cabinet, a member of the Knesset chosen by the Knesset Constitution Committee, an attorney chosen by the Bar Association, and an academic chosen by the deans of Israel’s law schools. The committee could reject any candidate it considered “improper,” a term that meant having personal or political ties to someone in the government. That process severely undercuts the government’s ability to choose someone known to be sympathetic to its agenda. Owing to changes in the Knesset, these bills were never enacted. They reflect, however, the widespread opinion, perhaps influenced by the Supreme Court’s decisions, that the attorney general should play a role independent of, and even contradictory to, the elected government’s policies.

  Even without these proposals, as Gordon makes plain, “the reality is grim enough. The government is now saddled with a senior official who has the legal authority to veto virtually any government action or policy, against whom it has no means of appeal, and of whom it can rid itself only with the utmost difficulty, if at all; and with an outside committee which has the power to veto any candidate who would be too likely to use his power in line with the government’s wishes.” It is extraordinary that the Israeli public should accept the idea of an attorney general capable of hamstringing the executive branch that the public votes into office. There would seem to be less and less reason for the Israeli people to bother electing a legislature and executive; the attorney general, with the backing of the Supreme Court, can decide almost everything for them. “Replacing the normal methods of democratic oversight with the oversight of a single, all-powerful unelected official,” Gordon concludes, “is not entirely different from replacing democracy with autocracy.” If the Court is added to that summation, democracy is actually slowly being replaced by oligarchy.

  The Supreme Court has adopted a standard of reasonableness for judging government decisions and actions. As a result, the range of decisions that could potentially be overturned became almost identical with the totality of government action. The Court has dramatically increased its involvement in the day-to-day governance of the country and, in recent years, has ruled on governmental decisions and actions that, in the past, were denied review. The issue of compulsory army service provides an example. After the defense minister exempted full-time yeshiva students from compulsory army service, there were a series of challenges to the law. In 1981 the Court ruled that the issue was not justiciable. In 1986 it ruled that it was justiciable, but that the exemption was a reasonable exercise of the minister’s authority. In 1998, however, in Amnon Rubenstein v. Minister of Defense, the Court decided that the exemption was unreasonable because the number of yeshiva students had increased. This ruling substituted the Court’s discretion for the discretion the Knesset had lodged in the defense minister. The Court was now deciding how many exemptions defense policy could afford. It deferred implementation for one year to give the Knesset time to enact legislation, and then granted additional extensions. The Knesset ultimately legislated a further two-year continuation of the exemptions while it considers the issue. In response to a petition that this extension be held unconstitutional, the Court created an eleven-Justice panel to consider the issue, but no ruling has yet been handed down.

  The Court’s self-arrogated authority to overturn gov
ernment decisions solely on the Court’s judgment that the action in question is “unreasonable” was again displayed when the Transport Ministry’s traffic supervisor, who is legally authorized to close major roads, decided to close a street that the Haredi (ultra-Orthodox Jews) wanted closed on the Sabbath. The Court recommended that the government appoint a commission to study the issue, which the government did. But the commission agreed with the closing. The Court then resumed hearings and prohibited the closure. The Justices cited no law or right that had been violated, but simply thought it unreasonable and, therefore, illegal.

  The reasonability standard disregards the separation of powers. In judging reasonableness, the Court necessarily replaces the legislative process. It claims that it uses the power to overturn unreasonable government decisions only where the decisions are so egregious that “it is inconceivable that any reasonable authority would be likely to make [them]” – which must mean that a majority of otherwise sensible people are behaving so irrationally as to approach temporary insanity. But the cases in which the power has been used show that the standard of unreasonableness is much lower than the Court suggests and amounts to no more than second-guessing. The Israeli Supreme Court’s standard of “reasonableness” is equivalent to the United States Supreme Court’s “substantive due process” and the Canadian Supreme Court’s “fundamental justice.” All these terms are formulations of the judiciary’s never-ending quest for a form of words that will justify judicial power that is essentially lawless. The three formulas differ in only one respect: the American and Canadian Courts perverted the plain meaning of procedural guarantees in order to seize an authority over the substance of legislation, while the Israeli Court simply imported an innocuous-sounding standard to achieve the same radical assumption of illegitimate power.