December 16, 2018

Is it good that the court pushes for implementing the Kotel compromise?

The Supreme Court Aug. 31 discussion on the Western Wall came at a bad time. Three days ago, the court made a decision inhibiting the state’s ability to deport illegal immigrants, and raised the ire of activists and politicians. The debate over the role of the court, and its ideology, once again became a center of attention.

Two days ago, Justice Minister Ayelet Shaked vehemently attacked the court, and declared that  “Zionism will no longer bow its head to the system of individual rights that are universally interpreted in a way that cuts it off from the history of the Knesset and from the history of legislation that we all know.”

The court, argues Shaked, ignores the interests of Zionist Israel in favor of universal values detached from both the reality and the values of Israel. This morning, a gold statue of Supreme Court President Miriam Naor was erected outside the courthouse in Jerusalem, another demonstration of rightwing groups raising their level of criticism of the court’s ideology. The statue, said a member of the organization that built it, is a protest against Supreme Court “dictatorship.”

So, for the court to ignore these voices and enforce a solution for the Kotel with which the government does not agree will not be easy.

In a paper published by the Jewish People Policy Institute a few days ago, my colleague Dan Feferman and I argued that progressive Jews in Israel, lacking in political power, used to rely on two main pillars of support as they strived to advance their goals: “Battles in courts provided the movements with public funding for rabbis, access to the education system, some budget allocations (although these pale in comparison to what the Orthodox are granted) and more. Support from their American counterparts provides the other pillar for Israel’s Reform and Conservative movements. While not possessing much local power, in the U.S. Reform and Conservative Jews comprise a full half of the six million strong community and are a source of significant activity, philanthropy and pro-Israel political influence”.

However, we argued, “things are changing with these two levers of influence.” Both seem to be weakening.

Why the court is weakened is a long and complicated story. But one of the reasons for the battle against it is its tendency (welcomed by some, rejected by more) to rule on matters of government policy. For example: on questions pertaining the proper arrangement near the Western Wall.

There is great irony here: Progressive Jews, disillusioned about their ability to get the support of the government, rely on the power of the court. The more they appeal, the more the court rule in their favor, the more the court becomes exposed to criticism and thus to attempts by politicians to erode the court’s power. In other words: the institution most important to these Jews is the institution they hurt by constantly forcing on it their grievances.

This of course doesn’t mean to imply that these Jewish movements should not seek the support of the court when they feel that the law is on their side. Israel’s court is such pillar of excellence because of its ability to withstand the winds of political turmoil and rule as it sees fit. But it does mean to imply that relying on one main pillar of power is problematic because it makes the pillar a target of condemnation and its power a target of attacks. It is as problematic as any reliance on one source of supply and support because if the source dries, the whole enterprise it endangered.

The court’s discussion on the Wall reflected its ambivalence as it strives to balance its role and the one of the government. Supreme Court Justice Naor said, on the one hand, that the court cannot be the one managing the Kotel: “We do not have the power to craft a new Kotel compromise.” But she criticized the government for changing course at the last minute, and reneged on a compromise that the court considered worthy. In a way, the court handed Prime Minister Netanyahu a tool to tell his coalition partners that they either let him go back to the compromise, or risk a ruling could be even harsher from their viewpoint.

The movements are understandably pleased with the discussion that took place. The court seems to be sympathetic to their arguments and unsympathetic to the government’s last minute flip flop.

But maybe a grain of more ambivalence should also characterize the movements as they seek to advance their goals in Israel. One the one hand, the court is a comfortable venue for getting relatively quick results. On the other hand, the more they go to court, the more they rely in it, the less creative they become is searching for other venues.