Israel’s judiciary shows its limited power

Once again, the heated tone – or more precisely, the shrillness – of the debate over military conscription of the ultra-Orthodox has returned.

According to leaks from the coalition negotiation room, a new arrangement is planned that will end the masquerade ball that has accompanied this saga for over 50 years.

The coalition will advance “Basic Law: Torah Study,” aimed at safeguarding Knesset legislation from judicial review on the issue of “equal sharing of the burden.” This rebrands the issue (shifting the emphasis from commonality in the “big tent” to disparity in the “Torah tent”) and its positioning within the normative hierarchy (the arrangement will be elevated to the constitutional level – Basic Law).

The real meaning of the planned legislation is that the State of Israel is explicitly shelving the aspiration for significant ultra-Orthodox conscription into the IDF. The “hindsight” of the past becomes the “foresight” of the future.

The non-mobilization of the ultra-Orthodox has far-reaching unfavorable consequences in the public arena – culture and society, employment and the economy, religion and state, military and defense, equality and freedom.

But the adverse effects do not end there. The Supreme Court, Israel’s most impressive governmental institution, is now being led to the public square for trial and condemnation for, among other things, its extensive involvement in the plot twists and turns of the ultra-Orthodox recruitment drama. This is one of the key issues fueling the coalition’s political will to make dangerous changes to the justice system.

Until the 1980s, the Supreme Court refrained from intervening in the matter and dismissed outright petitions for equal sharing of the burden. The ball was in the arena of the executive branch – the draft deferment issue left to the defense minister.

In the 1980s the court signaled that it was ready to enter the fray; in the 1990s it intervened for the first time through judicial review of the executive branch, invalidating its authority to set policy on the issue. This kicked the ball to the legislative branch. In the first decade of this century, the court warned that it might subject a conscription law enacted by the Knesset to judicial review, and in the second decade, it made good on that warning and twice struck down (in 2012 and in 2017) laws enacted as primary Knesset legislation.

Although the ball remains in the hands of the legislative branch, the Supreme Court has made it very clear that it retains veto power over how the game is played.

It is worth emphasizing the slow and measured manner in which the justices have dealt with the matter. They have understood the great sensitivities involved in both the substantive aspect of the arrangement (affecting the relations between Israeli society as a whole and the ultra-Orthodox sector) and its institutional aspect (affecting the relations between the branches of government). This is why the Supreme Court, for decades, was content with issuing warnings. Only in the light of growing public protest – when it became clear that “quantity makes quality” – did it finally act. The justices felt they had no choice but to shoulder the task of advancing equality by carrying the weight of the conscription controversy, as the Knesset was not sufficiently committed to doing so. Without the court’s involvement, so the claim goes, the blanket ultra-Orthodox draft deferral would have continued unhindered.

A hearing in the Supreme Court. Photo by Hillel Meir /TPS

However, the judicial action has brought its own storms to society. Again and again, the court has ruled – contradicting Knesset decisions – on an issue that inflames the culture war. Although a large majority of the public wants to advance equal burden-sharing, the Knesset’s coalition majority reached far-fetched compromises with the ultra-Orthodox minority. Political parties on the Right, in the Center and on the Left have placed the burden-sharing issue high on their agendas; professional committees, public committees, and innumerable public debates have been devoted to the topic and produced the results that we have seen. After all this, is it appropriate for the court to become the veto-wielding arbiter of this issue?

The justices seem to take it for granted that they are charged with imposing change on the status quo. In their rulings they display little hesitation over the underlying dilemma – one with which legal scholars in Israel and abroad are intensely engaged – regarding the judiciary’s role, on the normative level, as an engine of sociopolitical change in spaces the country’s elected officials refuse to enter.

But beyond that, does the law have the practical power to compel such change? It is difficult to find another issue to which the Supreme Court has devoted so much attention over such a long period of time: nine petitions over five decades, involving about half of all the judges who have served on the Supreme Court since the founding of the state. In the last decade, the justices have brandished the maximal power the law grants them – the doomsday weapon of striking down two military conscription laws passed by the Knesset. There is no stronger device in the justices’ arsenal. The rulings, even though they were among the most activist in the country’s history, enjoyed wall-to-wall support, even among those who on other issues aim their arrows at “judicial imperialism.” (Indeed, one sometimes gets the impression that the opponents of judicial activism are moved not by the underlying principle, i.e., the court’s proper place in public life, but, rather, by the substance of its rulings.) And after all this, what has actually been achieved? Nothing. Not a thing.

A striking expression of the futility of the judicial effort is evident in the words of former Supreme Court justice Elyakim Rubinstein in a ruling (issued during his last week on the bench) in which he supported the repeal of a contentious draft law. His decision opens with a sentence of just a single word: “Despair.” This extreme rhetorical move accurately reflects the state of affairs in the real world, outside the learned rulings of judges. He eulogized the judicial system’s steep investment of time and effort in this area with the following words: “The absurdity – the travesty of the ping-pong between the branches… makes one wonder whether to laugh or cry.”

Over the years a number of legal arrangements have been proposed for the conscription issue, but none survived. They fell into the triangular abyss of the three branches of government and disappeared from the radar screen, like ships or planes swallowed by the Bermuda Triangle. But unlike the mystery in that area of the Atlantic, what happens in Israel’s governmental triangle can be explained: The legislative branch, striving to balance an array of interests, devises conscription arrangements that undermine equality, while the judicial branch, acting out of a “salvation fantasy,” seeks to promote equality on behalf of the majority.

But, at the end of the day, the Israeli street turns a cold shoulder to the heroic efforts of the judges. Although the equal-burden issue was once a powerful political motivator, it was barely mentioned in the frequent election campaigns since 2019. Here and there, conscription arrangements were suggested (for example, in the coalition agreement between the Likud and Blue and White in 2020), but they were only for show. When one looks at the arrangements themselves, one clearly sees that they could just as well be called “non-recruitment” arrangements. Their purpose was to stall for time and to whitewash, not to meaningfully change how the burden of military service is distributed among the populace. And now, in the coalition agreement, a paradigm shift has been proposed that would slam the door on ultra-Orthodox recruitment. In response, the public merely sighs.

This account of how we got to this discouraging place is meant to cast some light not only on the specific situation, but also on the broader issue of the power of the court in a divided society.

Israeli society, which lives in an overload of unresolved identity tensions, searches for a way out of the quagmire and turns to the judiciary for a “professional” answer. The Supreme Court, as a public servant, attempts to be, in the Mishnaic phrase, “a man” in “a place where there are no men.” In so doing, however, it is tempted to tinker with the most delicate mechanisms of the Israeli collective soul. But the judiciary – in reality – has limits beyond which its power cannot reach. The judges want to save us from ourselves, and they should be saluted for that noble desire, but their efforts to resolve identity conflicts between Israel’s “tribes” may turn out to be not only unhelpful, as has already been proven in this case, but also harmful to the court itself.

Ultra-orthodox young men at the entrance to the Bakum at Tel Hashomer army base. Photo by Eitan Elhadez-Barak/TPS

The ultra-Orthodox draft controversy is what sparked the political instability crisis of the last decade. A straight line runs from the ruling that overturned the Tal Law in 2012 (precipitating the elections that decimated the Kadima Party, then the largest) to the present coalition. That ruling, and the one that followed in 2017, shifted the entire ultra-Orthodox camp – a decisive factor in Israeli politics – into the territory of those opposing the court. The Haredim have become the main promoters of an “(anti-)constitutional coup”. The ruling that nullified the conscription law then is bringing us “Basic Law: Torah Study” in the here and now.

Then-Supreme Court justice Asher Grunis, in his minority opinion in the 2012 ruling, showed prescience: “The court’s repeated engagement with the issue of ultra-Orthodox military recruitment, without any real progress having been made as a result of judicial involvement, certainly does not redound to the court’s advantage,” he wrote, adding that it would have been better “for the court not to have entered into the matter at all, and to have left it in the public sphere, outside the purview of the court.”

The judicial effort failed because the court interprets ultra-Orthodox conscription as a question of “equality.” This conceptualization misses the issue’s dominant aspect from the ultra-Orthodox perspective: Their greatest fear is that military service will erode the identity of ultra-Orthodox youth. The special character of the issue as one of identity rather than of rights and obligations – as with a range of identity dilemmas that characterize Israel in its 75th year – makes it essential that decisions ultimately be made by the legislative branch, not by the judiciary. The court deceives itself and the public when it uses its authority to be the final arbiter in these matters. If the country’s elected officials choose to yield to the ultra-Orthodox on military conscription, the court will be unable to do anything about it.

The court should avoid wasting its public credit in order to achieve resolution in the culture war. As the draft issue proves, this is an unattainable goal. It lies outside the purview of judges.

The court should focus on the main task with which it is charged: the protection of human, civil and minority rights. That would be a step toward restoring trust in the court.

First published by The Jerusalem Post.