Learning the Truth About the Court

It was a remarkable educational moment with regard to the true reality of Israel’s Supreme Court: Just a few months after completing her tenure as the President of the Court, the Hon. Dorit Beinisch paid a visit to California. I was a part of a small group of rabbis from across the community the local Israeli Consulate invited to meet with her. With not many other rabbis in attendance, it presented an opportunity for personal interaction.

After the formal presentation, I approached the Justice, quietly asking her, “Why did you invalidate the Tal Law?” Some years earlier, Tzvi Tal, a distinguished Orthodox Israeli Supreme Court Justice, crafted the “Tal Law.” Like many laws, it was a political compromise, attempting to find a middle ground in the continuous issue of Yeshiva students serving in the IDF by creating an avenue to mainstream more students to the army and work. During the last months of her tenure as President of the Court, Chief Justice in the American parlance, Beinisch led the court in invalidating the Tal Law. 

This pushed Israel into a major political conflict, and was a catalyst for the fall of the government. Officially, the court invalidated the law based on their version of “equality,” an ideal that is lofty but not always wise. Their ruling was a result of a left-wing group who argued that it was not fair that some serve in the IDF and others do not. While this is a persuasive argument, the real question is how we create societal change in the Haredi community. Will the sledgehammer of judicial fiat set back the goal of integration? If you follow the numbers, that is exactly what has happened since the Beinisch ruling — fewer Haredim are joining the army. (Personally, I attended a Chabad Yeshiva that supported serving in the IDF. The majority of students received deferments during their studies and then joined the army later.)

I wondered what kind of legal reasoning Justice Beinisch would give me. I was astonished with her simplistic yet telling answer. “We made the ruling because it was not working.” In other words, according to her assessment, the Tal Law was not successful in creating a larger integration of Yeshiva students to the Army and society, so she struck it down. I remained stoic, respectful, not revealing my astonishment.

In a moment of emotional honesty, she had revealed her inner thoughts. She didn’t like what was going on; the Yeshiva students were not moving fast enough along the road to participating in the army or working. She was going to give them a push. There is a place for this kind of assessment in a democracy, but it’s in the Knesset. While I said nothing, I recalled the words of the U.S. Supreme Justice that I had once heard, “It is not our job to change the law. If you want to, cross the street and have congress vote a new law.”

In Washington, the Supreme Court and the Congress are just across the street. The same is true in Jerusalem. The role of the legislative body is to deliberate, find compromise and solutions. The role of the court is to evaluate if the legislature has acted callously and trampled on the rights of another, or broken the law. If Beinisch would have given me a legal argument, then one could evaluate if it had merit or not. But her true reason for the ruling had nothing to do with law. “It was not working.” I wondered why Beinisch didn’t resign her position in the court, and run for the Knesset.

Israelis have been watching the court slide from being a bastion of justice to a culture of leftist legal supremacy. The seeds of the present crisis go back to the original establishment of the court, when Justice Minister Pinchas Rosen blocked the appointment of Gad Frumkin. He had been the longest serving jurist in Palestine and a member of the British Mandate Supreme Court. Rosen rejected him because he was not a Mapai (Labor Party) supporter. Ever since then it’s been “one friend brings another” until Aharon Barak. He propelled the court to a point where leftist activism is its culture. Yes, there will be token religious or conservative Justices like Tzvi Tal or Menachem Alon. Both confided to me in separate conversations that they felt at odds with dominant ideology in the court.

Cases can be brought even if you have no standing or relevance to the case. The court has used the concept of “reasonableness” — in other words “we don’t think that’s a good idea” — and then ordered government ministries to change their policies or even dictating to the military because the justices on the court thought they were a better judge of policy. No American court uses these guidelines; clearly it’s a case of judicial overreach. 

Judaical reform is essential for Israel to remain a vibrant democracy. Just one segment of society, the liberal elites, cannot continue to impose their worldview. They claim that modifying the present legal systems will “endanger democracy,” which is just a way of saying, “the law must be my way, otherwise it’s not democracy.”

One also has to wonder why some U.S. liberal Jewish groups have been lobbying against any reform. Would they agree with a U.S. court that operated like one in Israel? Would they support the Conservative-leaning U.S. Supreme Court selecting its successors? The Israeli justices have used the court repeatedly to impose their beliefs on Israeli society. When the city of Afula decided that just one of the many concerts they fund will be for Haredim with separate seating, the New Israel Fund supported the case to ban it. NIF and similar groups have skillfully brought many cases, using judicial fiat to enforce their views. With a balanced court, that will be challenging. Are they really concerned for democracy, or do they want to protect the court so it can advance their political goals that they cannot win in the ballot box?

This issue must be approached with delicacy and serious deliberation. Clearly the methodology of selection judges must be modified. The court should only judge cases where the litigants have standing. While consideration should be made for an override clause, in my personal view, this should be carefully evaluated to ensure that it not be abused. Judicial reform is essential in Israel. But it must be done with careful deliberation — a scalpel is needed, not an axe.

A society with people of diverse viewpoints — and as we know most Israelis have strong opinions — must find a way to coexist. That comes with political compromise and respect for the person with whom you do not agree. 

A society with people of diverse viewpoints — and as we know most Israelis have strong opinions — must find a way to coexist. That comes with political compromise and respect for the person with whom you do not agree. As the Sixth Lubavitcher Rebbe, Rabbi Joseph Isaac Schneerson, wrote to a group of Yeshiva students, “You should spread Judaism in a way of peace, you should seek the good in another and the weaknesses in yourself.” At the same time, a fair court is essential to help the society strike that balance. It must be a lighthouse of justice and evenhandedness to ensure the rights of all Israelis, despite their differences.

Rabbi David Eliezrie is the president of the Rabbinical Council of Orange County. His email is rabbi@ocjewish.com.