In the 1980s, under Meir Shamgar and his then-deputy, Aharon Barak, who would succeed Shamgar as chief justice in 1995, the court introduced three innovations that dramatically altered the legal landscape.
First, it abolished the restriction of standing: that is, the rule that only someone directly harmed by a government action could petition the court for redress. Thereafter, anyone could petition the court over any government decision.
Second, it abolished the restriction of justiciability, which deemed certain domains—including foreign affairs (“the sword”) and budget policy (“the purse”)—to be the prerogative of the elected branches and therefore beyond the court’s purview. Thereafter, virtually every government decision became subject to judicial review.
Third, it began evaluating not just the legality but also the “reasonability” of government decisions, and asserted the right to overturn those it held “extremely unreasonable.” Since deciding the reasonability of a given action is essentially a policy judgment of the kind that governments are elected to make, the court was now asserting veto power over government policy. And since its other two innovations insured that virtually every significant government decision would end up in court, its veto power was almost unlimited.
Then, in the 1990s, the court introduced two further and no less crucial innovations. In 1993, reinventing the role of a key government position, it ruled that the opinions rendered by the state’s attorney general were no longer to be considered merely legal advice, but were binding on the government and all of its agencies; that only the attorney general was authorized to represent the administration in court; and that, should the administration disregard his “advice” on a given issue, the attorney general could refuse to defend the government’s position in court. This deprived the executive branch of fundamental legal rights accorded to every ordinary person. It could neither seek a second opinion from a different lawyer nor challenge the attorney general’s opinion in court; should it do so, it would be denied legal representation, thereby insuring its defeat. Not only that, but rules were instituted that severely circumscribed the government’s ability to choose an attorney general to its liking or fire one it disliked.
Through its revolutionary actions, Israel’s supreme court “presumed to become a constitutional court in a country that lacks a constitution.”
Finally, although Israel doesn’t have a written constitution, the court asserted in 1995 that two “basic laws” passed in 1992 effectively made up a constitution. Consequently, the court, which previously had asserted “only” the right to overturn executive-branch decisions, was now empowered to overturn any subsequent legislation that it deemed to contravene those two laws. As Friedmann explains, this claim had no legal basis. Most members of the Knesset (MKs) hadn’t intended to endow the 1992 laws with primacy over future legislation, and never dreamed the court would interpret them in that light; indeed, in presenting the laws to the full Knesset for approval, the chairman of the Knesset committee that prepared them explicitly assured his fellow MKs that they did not grant the court “special power to nullify laws.”
Moreover, constitutions are generally approved by supermajorities and require supermajorities to amend them. But the two “basic laws” were approved by a mere one-quarter of the 120-member Knesset, and the more consequential of the two, titled the Basic Law: Human Dignity and Liberty, could also be amended by a simple majority of those present and voting. Hence, Friedmann sums up, Israel’s supreme court “presumed to become a constitutional court in a country that lacks a constitution.”
The article goes on to describe how the court has usurped Israel’s military authorities to decide military policy. It imposes its will arbitrarily on economic laws and appointment of government officials, it uses protection of Democracy Laws to outlaw, some of the right wing parties from running for the Knesset, that it considers too racist, but the court has never outlawed any of the worst pro-terror Arab parties.
Exit polls in that last presidential election showed 1 out of 5 voters cited the Supreme Court as “the most important factor” in deciding their vote – and 57 percent of these voters said they cast their ballots for candidate Trump.
So far Trump has shown a better understanding of the issue of Judicial Activism than the phony right in Israeli politics. He has used a narrow congressional majority to appoint judges who are not leftist judicial activists. At this stage in time, he has done a better job than Bush but he has not reached the level of holiday status, of Shimon ben Shetach.
What am I referring to? In Tractate Taanit, we are told that in the 2nd Temple period, the evil King Yannai had stacked the Sanhedrin, the Supreme Court of the Jewish people with Judicial Activists of the Saducee variety. He left only one righteous judge, Shimon ben Shetach remain, who happened to be his brother in-law.
Using clever maneuvering one by one he exposed the incompetence of Yannai’s judges and gently persuaded Yannai to fire them one by one. On the 28th of Tevet, tractate Taanit reports, Shimon ben Shetach finished his maneuvering and transformed the entire court from a court of Saducee Judicial Activists into a court of 71 righteous judges who were loyal to the religious constitution of Israel, namely, the Torah.
To state it more bluntly, Trump has not yet managed to fire the judicial activists. He is currently just watering down their power.
I will also point out the obvious, that although some of Trump’s appointments are an improvement (that is to say, less hostile to some of the 7 universal laws given to all mankind), none meet the standards that G-d expects from Non-Jewish judges, namely to enforce the entire 7 laws given to the sons of No’ach (Noah).
On a personal note, I decided not to vote in the Trump vs. Clinton election.
It is not always clear from the statements made by politicians before the elections, what will be their policies after the elections. “Under the watch ” of George W. Bush, Jews were completely expelled from Gush Katif/Neitzarim/Northern Gaza & parts of the Shomron and replaced by Islamic fanatics. Under the watch of the “right wing” and immoral Bibi Netanyahu from the perspective of Israeli settlements and also from the perspective of the war against Judicial Activism, things have gotten worse than they were under the leftist Israeli Prime Minister Ehud Olmert.
As reported in https://www.jns.org/opinion/settlement-activity-nosedived-under-trump-and-its-no-surprise/ “The number of construction starts for housing in the settlements has been in a “downward spiral” ever since U.S. President Donald Trump took office in January 2017 and hit a six-year low in the first quarter of 2018”.
The lack of clarity could I really trust Trump given his issues with women, etc. made me want to stay on the sidelines during the past elections. Now that he’s in, let us hope for the best (that is to say that Hashem leads him in the direction that is recognized by loyal Jews as the best). So far his record has been mixed. Even his statements on Jerusalem from my perspective have been disappointing.
However, what was most significant for Palestinian and Muslim ears was the president’s emphasis, twice, on the current status of Jerusalem’s holiest and most contested site. Trump directly called for maintaining the “status quo” at “the Temple Mount, also known as Haram al-Sharif.” Moreover, addressing the future, he noted that “Jerusalem is today and must remain a place where Jews pray at the Western Wall … and where Muslims worship at al-Aqsa Mosque.”
And the Holy One, Blessed be He, will not rest His Divine Presence on the Jewish people until evil judges and officers shall be eliminated from the Jewish people, as it is stated: “And I will return My hand upon you, and I will purge away your dross as with lye, and I will remove all your tin. And I will restore your judges as at first, and your counselors as at the beginning…(based on Yishayahu/Isaiah Ch. 1 verses 25,26).
Writtten by Shlomo Moshe Scheinman