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<\/span>However, the judicial action has brought its own storms to society. Again and again, the court has ruled \u2013 contradicting Knesset decisions \u2013 on an issue that inflames the culture war. Although a large majority of the public wants to advance equal burden-sharing, the Knesset\u2019s 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?<\/p>\n
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 \u2013 one with which legal scholars in Israel and abroad are intensely engaged \u2013 regarding the judiciary\u2019s role, on the normative level, as an engine of sociopolitical change in spaces the country\u2019s elected officials refuse to enter.<\/p>\n
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 \u2013 the doomsday weapon of striking down two military conscription laws passed by the Knesset. There is no stronger device in the justices\u2019 arsenal. The rulings, even though they were among the most activist in the country\u2019s history, enjoyed wall-to-wall support, even among those who on other issues aim their arrows at \u201cjudicial imperialism.\u201d (Indeed, one sometimes gets the impression that the opponents of judicial activism are moved not by the underlying principle, i.e., the court\u2019s proper place in public life, but, rather, by the substance of its rulings.) And after all this, what\u00a0has actually been achieved? Nothing. Not a thing.<\/p>\n
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: \u201cDespair.\u201d 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\u2019s steep investment of time and effort in this area with the following words: \u201cThe absurdity \u2013 the travesty of the ping-pong between the branches… makes one wonder whether to laugh or cry.\u201d<\/p>\n
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\u2019s 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 \u201csalvation fantasy,\u201d seeks to promote equality on behalf of the majority.<\/p>\n
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 \u201cnon-recruitment\u201d 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.<\/p>\n
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.<\/p>\n
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 \u201cprofessional\u201d answer. The Supreme Court, as a public servant, attempts to be, in the Mishnaic phrase, \u201ca man\u201d in \u201ca place where there are no men.\u201d In so doing, however, it is tempted to tinker with the most delicate mechanisms of the Israeli collective soul. But the judiciary \u2013 in reality \u2013 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\u2019s \u201ctribes\u201d may turn out to be not only unhelpful, as has already been proven in this case, but also harmful to the court itself.<\/p>\n 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 \u2013 a decisive factor in Israeli politics \u2013 into the territory of those opposing the court. The Haredim have become the main promoters of an \u201c(anti-)constitutional coup\u201d. The ruling that nullified the conscription law then is bringing us \u201cBasic Law: Torah Study\u201d in the here and now.<\/p>\n Then-Supreme Court justice Asher Grunis, in his minority opinion in the 2012 ruling, showed prescience: \u201cThe court\u2019s 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\u2019s advantage,\u201d he wrote, adding that it would have been better \u201cfor 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.\u201d<\/p>\n The judicial effort failed because the court interprets ultra-Orthodox conscription as a question of \u201cequality.\u201d This conceptualization misses the issue\u2019s 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 \u2013 as with a range of identity dilemmas that characterize Israel in its 75th year \u2013 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\u2019s elected officials choose to yield to the ultra-Orthodox on military conscription, the court will be unable to do anything about it.<\/p>\n 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.<\/p>\n 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.<\/p>\n![\"\"](\"https:\/\/jppi.org.il\/wp-content\/uploads\/2022\/12\/Ultra-orthodox_young_men_at_the_Bakum_Tel_haShomer_army_base-scaled.jpg\")
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