Israel's Supreme Court: A case study in judicial activism and its limitations

In his recent talk at UCLA, University of Haifa Professor Gad Barzilai painted the picture of a highly active Israeli Supreme Court that has made a significant imprint on Israeli society. But he also asserted that the country's highest judicial body has been reluctant to upset the basic power structure in the country.

"The story of the Israeli political setting for the last thirty years is the story of the Israeli Supreme Court"

UCLA Younes and Soraya Nazarian Center for Israel Studies, March 9, 2017 - Each year, around 2,500 legal cases are debated in the Israeli Supreme Court. In comparison, the highest judicial bodies in the United States and Germany rule on, respectively, 60 and 1,000 cases over the course of a year on average.

In his recent talk sponsored by the UCLA Y&S Nazarian Center for Israel Studies entitled “Law, Culture and Collective Identity: Palestinian-Arabs and Jews In Israeli Law and Society,” Professor Gad Barzilai, Former Dean of the Faculty of Law and Vice Provost University of Haifa explained why Israel’s Supreme Court is so active and why the Court has affected significant change with regards to some issues, but not others.

The Court Becomes Active

“The story of the Israeli political setting for the last thirty years is the story of the Israeli Supreme Court, which has become a major venue to resolve political and social conflict,” Barzilai began his lecture.

The University of Haifa professor traces the Supreme Court’s high levels of activity and its critical role in dealing with a wide-range of important political and social issues to a period of political fragmentation in Israel in the 1980s.

“During the decade, there was polarization among the parties over the issues of territories, borders, state and religion, and other issues,” Barzilai explained. “The only organization that could bring order to the country was the Supreme Court.”

Barzilai noted that many of the rulings during the 1980s and into the next decade contained references to the chaotic state of politics in Israel and the need for the judiciary to create political and legal criteria to help manage the state. This assertion of power culminated in the Court’s 1995 declaration of a “constitutional revolution” the week following the assassination of Prime Minister Yitzhak Rabin.

The grave of Israel's Prime Minister Yitzhak Rabin, December 1995 (Photo: SqueakyMarmot, courtesy of Wikimedia Commons) CC BY 2.0.

 "The court insisted that the political conditions could not continue because democracy was at risk Barzilai noted. “The Court declared itself a constitutional court as opposed to simply an administrative court and announced that it would reject legislation that would harm Israel as a Jewish and democratic state.”

However, Barzilai also suggested an alternative reason for the Court’s growing assertion of power.

“Courts across the globe are political institutions that want to gain power in order to enforce the rule of law,” Barzilai said. “The declaration of 1995 created an environment which permitted a wide-range of complaints to be discussed – and ruled on – by the Supreme Court.”

Taking on Equality Issues

Since the 1980s and particularly since the “constitutional revolution,” the Court has ruled on a number of contentious issues and the judicial body’s rulings have made a mark on Israeli society. The Israeli judiciary has been particularly active when it comes to issues of equality. In his talk, Barzilai specifically discussed three issues the Israeli Supreme Court has addressed related to equality: marriage equality, gender equality and religious equality.

With regards to religious equality, Barzilai highlighted the court’s 1997 ruling regarding the collective exemption of Ultra-Orthodox Jews from military service. That year, the Court determined that the exemption was unconstitutional because it was discriminatory.

Professor Gad Barzilai addressed students and community members at his talk sponsored by the UCLA Y&S Nazarian Center for Israel Studies.

Despite this ruling, the Court deferred to the Knesset on addressing this issue. Since then, the policy has not changed, Barzilai noted. However, he argued the Court has succeeded in other areas in “applying and enforcing liberal values of equality” despite the state’s lack of a formal bill of rights or a separation of religion and state.

With regards to same-sex marriage, Barzilai explained, “there is no recognition as far as marriage and property rights in Orthodox law” and added that marriage in Israel is a religious act, not a secular one. But in 1992, the Court recognized equal allocation of property rights among same-sex couples and in a series of court rulings, the judiciary created civil status for homosexual citizens that “almost makes homosexual marriage equal to heterosexual marriage.”

Barzilai also highlighted the court’s role in helping establish gender equality by ruling in 1994 that a female emigrant from South Africa should be granted the right to train to become a fighter pilot – something the Israeli military at first resisted. The Court insisted that women should be given an opportunity to apply to be fighter pilots despite the military’s fears about budget issues and today, Barzlai observed, a number of women serve in combat roles in the Israeli Air Force.

Limits on the Judiciary’s Activism

Barzilai also emphasized in his talk the limits on the Supreme Court’s willingness to upset the power structure as it relates to Israelis and Palestinians. He cited specifically a case involving the non-profit Palestinian group Adalah.

The group has been extremely active as well as successful in the courts since its establishment in 1996. Since then, Adalah has won about 70% of the legal cases it has brought to the Israeli Supreme Court – an exceptional rate of success Barzilai emphasized. One of those cases dealt with the languages used on road signs across the country.

Adalah petitioned to have the road signs written in Arabic. Previously, signs were in English and Hebrew. Arabic script was used to transliterate the Hebrew. The Court ordered municipalities to translate signs into the country’s second language, Arabic, but was cautious in its ruling and insisted on not recognizing Arabic as a national language.

Israel, East Jerusalem, Pisgat Ze'ev settlement and Road 437 Ramallah/Jerusalem in the Judean Desert. (Photo: Justin McIntosh, courtesy of Wikimedia Commons) CC BY 2.0.

“From the court’s perspective, it could be a slippery slope to recognizing Palestinian nationalism within Israel,” Barzilai explained. “The court did make a change by using the law, but on the other hand, it froze other aspects of public policy to prevent basic power relations from changing.”

Barzilai emphasized that a lack of interest in addressing the legal status of Palestinians has resulted in a small number of court rulings on the issue. He also noted that most Palestinian appeals from the territories since 1967 have been rejected or dismissed.

“Courts can make some legal changes, but they either cannot or do not want to change the basic power structures,” Barzilai said.

Not Alone

Barzilai, an expert in comparative politics and law, emphasized that many of the issues revolving around the Israeli Supreme Court are not unique to Israel.

“The story I’m telling is not just a story about Israel, but also about the ability of judiciaries to change societies or the inability of judiciaries to change societies,” Barzilai told members of the audience.

He also added that courts around the world – as demonstrated in Israel – have embedded restraints.

“They are established as agents of the nation state and that’s why they will have some basic limitations,” Barzilai concluded. “And in Israel, we see that dynamic with a Supreme Court that has been successful and active on a few issues, but which has failed to dramatically address the major dilemmas in Israeli society.”