At first, the Court’s adamant refusal to get involved stemmed from its belief that the matter lacked justiciability and was beyond its authority. Later, when the nature of the Court shifted, its refusal became more hesitant and its rhetoric hinted at the possibility of intervention. Next, the Knesset enacted the Tal Law, which exempted full-time yeshiva students from military service. And while previous petitions against the bill were rejected, last week the Court changed its mind and decided to strike down the law. This move illustrates the transformation that the Israeli Supreme Court has undergone during the last generation, as the current verdict is a significant, if not blunt, expression of judicial activism.
Indeed, the increase in the number of ultra-Orthodox recruits in recent years to 25% per year stemmed, in part, from the revolving sword of the legal system. The opposition of the ultra-Orthodox leadership to the draft faded, as they understood that their role as a veto-player in the Knesset was insufficient because an additional veto-player had entered the game: the Court. Moreover, as noted by Justice Hayut, the Court has an advantage over governmental authorities that are driven by short-term considerations and political constraints. The Court can act with restraint and equanimity, guided by long-term thinking.
Despite the above, I believe that the Court went too far in its recent ruling and that its activism is difficult to justify. Firstly, the issue at hand is one of identity, society, and values. The legal aspect of the Tal Law is marginal compared to the fundamental challenge of integrating an isolated cultural group into a heterogeneous society. In truth, any dispute can be translated into a discourse of rights. It is clear, however, that the issue of recruiting the ultra-Orthodox is first and foremost a social dilemma: The ultra-Orthodox are concerned that the unique identity of their youth will be diluted by service in the military, while the rest of the Israeli population does not think this concern justifies discrimination between “blood and blood.” This conflict is a matter that should be decided by the Knesset, as the representative authority, rather than by the Supreme Court, which is the professional authority. It is therefore no wonder that for years the Court refrained from intervening.
Second, the Court used a doomsday device—judicial review, which resulted in the law’s repeal. However, the Tal Law isn’t a marginal or litigious law. It was not casually enacted, in a fit of emotion. Rather, this law came about through a process of careful consideration by a committee headed by a Supreme Court Justice. The law was thrown into the melting pot of public discourse both before its enactment, and for ten long years after it was passed. If it’s going to be repealed today, it should be by the Knesset.
Third, judicial review is justified when it protects a minority from the majority’s misuse of its parliamentary power. Democracy is not merely majority rule; it also protects the minority from the majority. Laws, therefore, should be repealed if they limit the basic rights of widows, orphans, or “the stranger within your gates.” In this case, however, the Court is protecting the Israeli majority from the ultra-Orthodox minority. Essentially, the Court is seeking to protect the majority from the decisions of its representatives in the Knesset. But the majority can easily protect itself by replacing its representatives on Election Day. After all, it is the majority.
Lastly, the Court justified the repeal of the Tal Law on the ground that the law infringes the right to equality. Unfortunately, however, in Israeli law, “equality” is not included in a Basic Law. The attempt to include equality, an independent right, as part of “human dignity,” a value which is protected by a Basic Law, appears to be forced.
As we know, “hard cases make bad law.” In this case, the politicians should be held responsible for creating the hard case. The members of the Israeli Knesset, who are now attacking the Court for being imperialistic, pushed the Justices toward this activist action, through their own failure to act and their continuous surrender to the minority. This, however, does not absolve the Court of its responsibility for having created a bad law.
Prof. Yedidia Z. Stern is Vice President of the Israel Democracy Institute and a professor of law at Bar-Ilan University.
This article was originally published in Hebrew in Makor Rishon on Friday, February 24, 2012.