(First published at Israel365.com and Israelnationalnews.com)
Did the Supreme Court disqualify Aryeh Deri from serving as a minister because the justices genuinely believed that his multiple criminal convictions rendered him unfit to serve in high office? Or did the Court banish him because it is its last best hope to topple the Netanyahu government and thwart the intended reforms that will dilute the Court’s current nearly unlimited powers? Or maybe it was a combination of the two?
The fact that these questions are legitimate and that we will never know the answer underscores the credibility problem Israel’s Supreme Court has with a large part of the public. On one hand, there are cogent reasons to ban Deri from serving as a minister. But those same reasons easily pertained to banning him from politics altogether. Thus, on the other hand, it is inherently undemocratic to negate the vote of hundreds of thousands of Shas voters who voted for him knowing of his ethical challenges. It seems odd to allow someone to run with the strong presumption that if his bloc won a majority he (the party leader) would become a minister, only to have an unelected judicial body pull the rug out from under him after the election. It is odder still that the Court took this drastic action without even a semblance of statutory support but simply based on the Court’s own conclusions of what is reasonable. No wonder so many thoughtful people think the Court is out of control and needs to be reined in.
In essence, the Court here without authority usurped the role of the prime minister in choosing his cabinet, just as it routinely commandeers the role of defense minister by decreeing security strategy and tactics, just as it routinely appropriates the role of each minister by dictating policy when it is so inclined, just as it arrogates to itself the role of Knesset when the Court invalidates laws or preempts their enactment by leaking that, if passed, the law will be invalidated, and just as it seizes the function of the Chief Rabbinate when the Court deigns to determine conversion standards and which establishments should be deemed kosher.
Israel’s Supreme Court thus serves as a Super Minister (above the Prime Minister), a Super General (above the Chief of Staff), a Super Legislator (above the Knesset) and a Super Posek (above the Chief Rabbis). And it fills all these roles without statutory sanction and without being elected by or accountable to the people – and the Court even controls the selection process of its future members.
Thus, the Supreme Court controls the judicial branch of government and for practical purposes dominates the executive and legislative branches. If I didn’t know any better, I would think that such an institution is a threat to democracy and needs to be reformed. Imagine, for a moment, that the United States Supreme Court decided unilaterally that it is “unreasonable” that Pete Buttigieg serve as Secretary of Transportation and must be summarily fired. That is not an implausible recommendation but it is unimaginable and unthinkable that such should occur because the US Supreme Court operates under constitutional and statutory constraints. No such limits currently pertain to the Israeli Supreme Court; hence the purpose of the reforms.
Is there a Torah perspective on the proposed judicial reforms? The instant answer is negative. The secular court system is not a Bet Din and the High Court is not a Sanhedrin (ironically, the Sanhedrin served a quasi-legislative function – but ancient Israel did not have a legislature). The qualifications of the judges and the standards of evidence applied do not adhere to the Torah’s framework for a judicial system. The laws that the Court enforces (or concocts) do not always conform to Halacha and the Court for more than a quarter century has studiously avoided applying the Foundations of Laws Act (1980) that calls on the judges of Israel to refer to Moreshet Yisrael (the historical heritage of the Jewish people) when a clear statutory framework is lacking.
Instead, it supplants the heritage of Israel and the will of the electorate by basing its most controversial and lawless decisions on, one supposes, Moreshet Tel Aviv, the values of the people (primarily, in the first instances, the justices themselves) whom they deem to be enlightened. And for that, people demonstrate in Tel Aviv and have, through misrepresentations, hysteria, and falsehoods, incited indignation across the world to Israel’s detriment.
And yet, perhaps we can glean some guidance from the Torah as to the substance and desirability of the proposed reforms. What is the purpose of the judicial system according to the Torah? Well, it is to do justice, which is defined as applying the law equally and fairly to all. The Jewish court does not favor the poor over the rich, the alien over the citizen, the Arab over the Israeli, the Muslim over the Jew, the enlightened over the unenlightened, or the secular over the religious. “Justice” is not social justice, economic justice, racial justice, environmental justice, or any other qualifier. To preface “justice” with an adjective is to distort the very concept of justice. “One law for everyone.” That is the primary role of the court.
Similarly, since Halacha is given to us as a holistic (and holy) system, the Jewish court does not fabricate laws or substitute its own thinking for that of the Torah. In our context, the role of the court is not to legislate or to create new laws but to interpret the laws as passed by the Knesset and adjudicate cases and controversies that arise between the citizens. Like the other branches of the Jewish government, the system is intended to elicit the divine presence and make us a holier, more faithful people – not a nation that is enamored with Western decadence.
Furthermore, one of the 613 commandments requires the appointment of judges “in all our gates” (Sefer Hachinuch, mitzvah 491). This is generally done by the people and/or the leadership. The judges do not appoint their successors nor are they given veto power over new nominees as the current Court has, all the better to ensure ideological conformity.
It is worth noting that the authority of the Sanhedrin derived from the Torah (Devarim 17:11) and thus from G-d. The people accepted its rulings because such deference was commanded by the Torah and rooted in one of the 613 commandments. But from where does Israel’s Supreme Court derive its authority? Presumably from the laws of the Knesset that created it and defined its jurisdiction. Thus when the Court exceeds its statutory authority and adjudicates matters beyond its delegated capacity (such as the revolution waged by Aharon Barak that renders any and all matters justiciable) it has no recognized authority. The government and public’s adherence to those rulings would be discretionary but for Israel’s secular media that treat the pronouncements of the Court with greater reverence that they have for the revelation at Sinai and deem dissenters and even questioners as ignoble heretics.
Finally, perhaps the greatest lesson from the Torah relates to the qualifications for judges. Certainly, a Jewish court requires “men of wisdom and understanding, exceptional in the wisdom of Torah, with broad intellectual potential, and familiar with other wisdoms” (Rambam, Laws of Sanhedrin 2:1). For our purposes, though, Rambam (2:7) noted that judges should possess “wisdom, humility, fear of G-d, distaste for wealth, a love for truth, beloved by the people and possessors of a good reputation.” We assume that is hard to find – but note the importance of “love of truth” which precludes having a social or political agenda that the judge seeks to implement. Loving truth means following the law even if it does not accord with one’s personal preferences. The judge should be “beloved by the people,” not deem the people as unenlightened, social inferiors, and “possessors of a good reputation,” not usurping authority on specious grounds and threatening civil war if that authority is not conceded.
The judicial coup d’etat sparked by the Barak revolution has now been joined. Democracy is being defended, not subverted. And the current reforms that seek to limit judicial review, curb the Court’s unlimited powers, restrain its jurisdictional overreach, restore authority to the people, and restructure the judicial selection process have an added advantage: they promote the ideals and values of the Torah as it perceives a functioning judiciary in the kingdom of priests and holy nation.