Israel’s Rogue Supreme Court

The story of the high court’s slide into lawlessness
Swearing-in ceremony of a Supreme Court President in 2015.
Kobi Gideon/Spokesperson unit of the President of Israel/Wikimedia Commons/Edwin Trebels/Watch Jerusalem
From the May 2020 Watch Jerusalem Print Edition

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Unlike the United States, Israel does not have a formal constitution. The nation’s founders intended to create a constitution after the state’s birth in 1948, but they couldn’t get it done.

Instead of creating a single document, Israel has developed its foundational legislation one law at a time. For now, Israel’s sovereignty rests in a series of laws referred to as Basic Law. The first Basic Law, created in February 1958, establishes the Knesset as parliament; the second, Israel’s Lands, legislates the lawful transfer of land. So far, Israel has 14 Basic Laws.

Israel’s Basic Laws provide the nation’s view on a particular issue. Eventually, these Basic Laws will be consolidated into a single constitution, one that when it is formally created and ratified by the Knesset will carry the full weight of constitutional law. However, some believe these Basic Laws have full constitutional power right now, and can therefore be used to strike down laws and policies of the government.

In March 1992, the Knesset passed two hugely important Basic Laws: Human Dignity and Liberty, and Freedom of Occupation. Both laws passed easily, without controversy or debate, and with little fanfare, in a late-night Knesset session with fewer than half its members present. To those present (and not present), these laws were important, but entirely routine and uncontroversial.

How did Israel go from being a democracy governed by elected officials to a nation ultimately governed by a powerful and unchecked activist high court?

Israel’s lawmakers had no sense that they had created laws that would grant unelected Supreme Court judges power to overturn legislation. They failed to grasp that they were in fact diminishing the Knesset’s law-making ability and empowering Israel’s Supreme Court.

They had no idea that these two Basic Laws would return to repeatedly haunt the Knesset—and the nation.

When passing the laws, Knesset members explicitly stated that they were not intended to invest more power in the Supreme Court. “We are not shifting weight onto the Supreme Court,” stated Member of the Knesset Uriel Lynn. “We have not established a constitutional court … with special power to annul laws. … This power has not been given to the court system. The power remains in this house.”

But that wasn’t how Israel’s top judges interpreted these new laws. In May 1992, a member of the Supreme Court, Honorable Justice Aharon Barak, delivered a speech hailing what he viewed as a constitutional transformation. “Not everyone knows this, but recently a revolution has occurred in Israel. I am speaking of a constitutional revolution, in which the Knesset, as the constitutive branch, enacted Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation” (emphasis added throughout).

Barak made clear that he considered Israel’s Supreme Court, comprised of 15 unelected judges, more powerful than the Knesset. “With the enactment of the Basic Laws, these fundamental rights have become ‘inscribed in the book.’ From now on, they bind not only the citizens and residents, and not only the administrative authorities, such as the government and local authorities. From now on, they bind the Knesset itself.”

This interpretation of these laws marked a colossal development for the Knesset and the nation. M.K. Michael Eitan was present at the vote and later described the drama. “No one spoke of a constituent assembly,” he said, “no one spoke of there being a revolution, and no one said that we’re carrying out any constitutional change. They voted. Months later, the people of Israel are informed: A revolution has taken place. [This is] the first revolution to take place without the people knowing about it.”

When they saw how the Supreme Court had interpreted these laws, many Knesset members protested. But these protests fell flat. The result? Since 1992, Israel’s Supreme Court has used these two laws to usurp the Knesset’s power—and as we have seen more recently, to strike down the democratic will of the people!

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Caroline Glick wrote that under Aharon Barak’s leadership, Israel “was effectively transformed from a parliamentary democracy governed by law into a judicial tyranny governed by the preferences and prejudices of a fraternity of lawyers that Barak empowered to adjudicate permissible behavior on the basis of their shared radical political preferences” (Jerusalem Post, July 2, 2009).

Earlier this year, Prime Minister Benjamin Netanyahu lamented the rise of Israel’s activist judicial system. “There is no democracy here, but a government of bureaucrats and jurists,” he said in private comments reported by Haaretz on April 5.

How did this happen? How did Israel go from being a democracy governed by elected officials to a nation ultimately governed by an all-powerful, unrestrained, activist high court? The answer is shocking.

Standing and Justiciability

While the passage of the two 1992 Basic Laws was critical to augmenting the high court’s authority, Israel’s highest court was growing more assertive and activist even before 1992.

In the late 1980s, the court began to expand its authority to rule on cases it considered important. This new judicial activism in Israel was actually part of a larger global trend. In America and elsewhere, rather than simply adjudicating cases based on established laws, courts were becoming more active in the creation of laws.

This activist surge was initiated by Barak’s predecessor, Supreme Court President Meir Shamgar. Until the 1980s, the Supreme Court was the weakest of all Israel’s branches of government. But under Shamgar’s leadership, with Barak as his chief agent, several developments significantly increased the court’s role in national government.

One of the first changes regarded standing, the principle used to decide who is allowed to bring a case (stand) before the court. Prior to the mid-1980s, a case could only stand before the high court if the individuals who brought it were directly involved. Shamgar and Barak relaxed this standard to allow almost anyone to petition the court to hear a case.

Around this time, the court also expanded the definition of justiciability. This term refers to the issue of whether a case should be handled by the court.

In the early ’80s, two separate petitions were made to the Supreme Court to challenge the government’s policy exempting Yeshiva from mandatory military service. Both petitions were rejected because they were not justiciable. In 1986, sensing change was in the air, lawyers submitted a third petition. This petition was accepted after judges determined that the case was justiciable.

With standing demolished and justiciability now all encompassing, there are no limits to the Supreme Court’s power to rule on every petition that comes before it—even if it means orchestrating petitions itself!

The facts of the case had not changed, but the high court judges now wanted to hear the case. Why? Because it was an opportunity to expand the presence and influence of the Supreme Court over the Knesset. The judges eventually rejected the 1986 case, but the decision to even hear it was significant: It redefined the precedent for what the Supreme Court could hear.

In his 1986 decision, Barak said, essentially, that it no longer mattered if there was a law, the high court could now determine whether something was justiciable or not. Barak later told Haaretz newspaper, “I think all is justiciable.”

In 1987, another landmark case further weakened the court’s position on standing. A justice minister had refused to extradite an Israeli citizen to France, where he was wanted for murder; two members of the Knesset petitioned the high court to judge the case against him. Traditionally, the court would have determined that the petitioners had no standing as they were not directly affected. However, Shamgar asserted that since the case was a matter of public interest, the high court would hear the petition. The court had once again rejected tradition and assumed more power.

By the late 1980s, the Supreme Court’s new interpretations of standing and justiciability had opened the floodgates for new cases that could now come before the court. Without these principles limiting the court’s power, the high court was now able to involve itself in virtually any legal case it wanted.

Not only that, it meant that 15 Supreme Court justices—unelected men susceptible to bias and political intrigue—could potentially arrange for cases to come before the court, where they could then make rulings and judgments and even issue penalties.

This happens more than most people are aware. For example, earlier this year, recordings were leaked of Supreme Court Justice Hanan Meltzer talking to Ben Meir, a left-wing political activist. In the conversation, Justice Meltzer is heard encouraging Meir to petition the court regarding an election issue so the Supreme Court could intervene. This judge was attempting to use the Supreme Court to interfere with national elections and advance the agenda of the radical left!

“The judges were clearly inviting the next petitioners so that they could intervene in the coming election results,” reported Israel Hayom (January 30).

With standing demolished and justiciability now all-encompassing, there are no limits to the Supreme Court’s power to rule on every petition that comes before it—even if it means orchestrating petitions itself!

Who Defines Human Dignity?

In the late 1980s, the Supreme Court also expanded its standard for judging cases so it wouldn’t have to rely on written law. It began to base decisions against the government not on the letter of the law, but on whether they deemed something “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,” longtime Israeli legal commentator Evelyn Gordon wrote in 2016.

Naturally, the high court’s definition of “extremely unreasonable” often differs from that of the democratically elected legslators. Before the 1992 Basic Laws, if the Knesset disagreed with a Supreme Court decision it could oppose the decision by forming new legislation, which would have to be approved by lawmakers (who were elected by the people). The court would have to respect this new law. But as Gordon wrote, “The 1992 Basic Laws did away with this recourse; by stipulating that no subsequent legislation could violate the principles protected therein, the laws in effect gave the court the ability to overturn any new legislation that, in its opinion, contradicted those principles.” Treating the 1992 Basic Laws as Israel’s constitution removed the public’s option to oppose the court’s ruling by creating further legislation.

Remember, Israel’s Basic Laws are not specific and detailed. They are general principles open to wide-ranging interpretation. Basic Law: Human Dignity and Liberty, for example, includes protections such as, “There shall be no violation of the life, body or dignity of any person,” and all people are “entitled to protection of their life, body and dignity.” Though Israelis agree that the principle of human dignity is a necessary right of Israel’s citizens, there is no consensus on the precise definition of human dignity.

The justices on the Supreme Court have assumed the responsibility of defining “human dignity” and many other terms in the Basic Law. This gives the court tremendous power, including the power to strike down Knesset laws that do not fit with the court’s interpretation of “human dignity.”

Consider some examples of where the court’s own expansive definition of human dignity gave it power over the Knesset.

The court decided that human dignity includes the right to family life. While other Western countries restrict migration of enemy nationals, the court decided that Israel must in principle allow all Palestinians who marry Israelis to move to Israel to be with their spouse—even if their spouse is hostile to the State of Israel. How does human dignity include this? In a May 2006 e-mail published in Haaretz, Barak wrote, “I determined that the right to family life is a constitutional right of the Israeli spouse and his children. … Since we do not have specific articles in our Bill of Rights that deal with equality and the right to family life, I decided that these rights are part of the right to human dignity.”

Note that: Aharon Barak decided!

In 1997, the high court also decided that human dignity includes the right to determine self-image. While somewhat comical, this case ruled that the government had to supply a bearded man with a larger, specialty gas mask because the government was giving out normal gas masks to others free of charge. This ruling was not based on religious grounds of the man, but rather that a “beard is part of a man’s self-image.” In its ruling, the court admitted that there was no direct attribution to self-image in the human dignity law, but that the constitutional value “has a broader meaning than the sum total of the recognized specific rights.” Gordon elaborated on this ruling, writing, “Thanks to the new court-created rights, the government today has to deliver an unknown sum—potentially in the millions of shekels—from the budget approved by the Knesset into protecting the self-image of the bearded in time of war.”

Hooded gas mask kits for bearded men’s “self-image.”
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These examples reveal the ultimate power the Supreme Court has to dictate policy to the government. To Barak and his activist comrades, the fact that the Basic Laws are general principles rather than specific laws does not prompt caution. To the contrary, they see it as an opportunity to effectively create law. In a May 19, 1992, speech, Barak stated, “As with all constitutional legislation, the two Basic Laws are sometimes phrased in generalities. They employ ‘majestic generalities.’ … The principle organ of state that must pour content into the majestic generalities, and must resolve the inherent conflicts, is the judiciary—primarily the Supreme Court.”

This man considers it his job to fill in all the undefined gaps in Israel’s Basic Law. In other words, he believes it is his job to make laws!

With these Basic Laws, “Israeli society has imposed upon us, the justices of the Supreme Court, the task of giving content to the molds for human rights that will befit our values as a Jewish democratic state” (ibid). The phrase “giving content to the molds” refers to the role of the justices to determine what those Jewish values are, and to then judge Knesset or government decisions according to those values.

Judicial activism of this nature ought to alarm Israel’s public. The high court has the power to strike down Knesset law based on the justices’ interpretation of what those values should be. Barak noted in his speech that that process must play out “in complete subservience to the words of the Basic Laws.” But when terms such as “human dignity” are open to interpretation, the end result is a runaway court that will naturally judge cases based on its own moral compass, however inaccurate.

Bork’s Judgment

Former U.S. Supreme Court nominee Robert Bork
Alex Wong/Getty Images

Robert Bork, the esteemed United States constitutional judge, was a powerful critic of Aharon Barak’s judicial activism and liberal view of the law. Bork once called Barak “maybe the worst judge on the planet.” He said Israel’s high court was the most activist court he had ever seen.

Bork wrote a scathing review of Barak’s book The Judge in a Democracy in the winter 2007 issue of Azure magazine. It offers powerful insight into the dangers of Barak’s judicial activism.

First, Bork denounced the way Barak redefined democracy. In Barak’s view, there are two kinds: formal democracy (rule of the people through elected representatives) and substantive democracy (independent judiciary, rule of law, and human rights). This definition blurs the critical separation of powers between the courts and the legislature, labeling all of it “democracy.” True, in democratic systems throughout the world, supreme courts fulfill a critical check on governments to uphold the laws they have passed. Still, these courts are not democratic. If they assume too much power, they become a judicial oligarchy.

Former Israel Supreme Court Justice Aharon Barak
AVI OHAYON/GPO

Today, many in Israel have embraced Barak’s deceptive definitions of democracy. It is common to see massive protests against the prime minister claiming that he is destroying democracy because he seeks to reduce the powers of the Supreme Court. This claim is bizarre, considering that democracy does not mean the judgments of judges but rather the rule of politicians elected by the people. An elected leader is the people’s choice in a way a judge is not.

In reality, it is people such as high court justices— individuals in unelected positions who do not answer to the people—who are uniquely positioned to undermine democracy. As Bork wrote, rather than being a force that defends and upholds democracy, the high court created by Barak undermines democracy.

In his review, Bork focused on a passage in Barak’s book that underscores why so many Israelis mistrust the rulings of Israel’s Supreme Court. “Barak asserts that, even without any change in the Basic Laws and statutes, judges may insert a ‘new fundamental principle,’” Bork wrote. In normal democracies, these new principles would have to be codified through the process of legislation, which would be passed by parliament, which is comprised of politicians elected by the people. The high court would then judge cases based on those new laws.

In Barak’s view, this process is unnecessary. New legislation is not required to create new principles; instead, the justices can determine those new fundamental principles of society themselves. Of course, the justices don’t just make up these new principles, but rather, as Barak himself wrote, “a process of ‘common conviction’ must first take place among the enlightened members of society regarding the truth and justice of those norms and standards before we can say that a general will has been reached that these should become binding with the approval and sanction of the positive law.”

In a democracy, the “general will” is determined at the ballot box, where the public elects officials running on specific platforms. But this democratic process isn’t necessary for Israel’s justices: Barak and his colleagues can divine the principles of the enlightened members of society and then treat those standards as law.

Who are the “enlightened”? More often than not, they turn out to be the intellectuals, the professors, the journalists and the judges—the politically and morally left-leaning members of society. These enlightened are not a cross-section of society; they mostly live in and around the metropolis of Tel Aviv, where values are far different from those living in Jerusalem, Judea and Samaria or the south.

An Israeli protester takes part in a “Black Flag” demonstration to protest against Prime Minister Benjamin Netanyahu.
Photo by JACK GUEZ/AFP via Getty Images
A bizarre twist: To many Israelis, any criticism of the unelected high court’s lawlessness is considered an attack on democracy.

Those “principles of the enlightened” or “Tel Aviv values” can then be used to strike down the decisions of a democratically elected government. And as Bork wrote, “Since voiding a statute requires overriding the will of the people as expressed through their elected representatives, what a judge thinks ‘society needs’ is almost certainly what a majority of the people in that society do not want.” But more than that, they are values that are morally bankrupting the nation.

Consider Barak’s view of the high court alongside the standard outlined by Judge Bork, and you can see why Israel’s Supreme Court is trusted by less than half of Israel’s population. Many Israelis recognize that when the court nullifies the actions of a democratically elected government, they are no longer being governed by elected leaders but by unelected judges.

Supreme Court Is Now Sovereign

On March 2, when Israelis voted for the third time in 12 months, they were fully aware of what the vote was about. Roughly half the nation wanted to end the reign of Prime Minister Benjamin Netanyahu; the other half wanted to keep him. For many people, however, this election was not ultimately about Netanyahu. For many Israelis, a vote for Netanyahu was a vote against the tyrannical court!

“Millions of Israelis are willing to vote for a possible criminal because they see it as the only chance of curbing the legal establishment’s takeover of Israel’s democracy,” wrote Gordon. “[T]he most common argument I heard was simply this: ‘Ousting Netanyahu would mean letting them win.’ In other words, Netanyahu the man no longer matters; he has simply become a ‘symbol of the much larger struggle to regain the fundamental democratic rights that the legal establishment—the courts, the attorney general and the prosecution—has steadily usurped over the past three decades” (January 8).

Half the country stands with the court and half against. The longer this tension persists, the more desperate each side grows.

In the election, Netanyahu’s Likud party received more votes than ever. If Gordon is right, the election was a strong sign that Israelis agree that the Supreme Court has too much power. In 2000, fully 80 percent of Jewish citizens had confidence in the Supreme Court. A poll taken just after the election found that only 28 percent of people believe the court’s rulings are “mostly professional.” According to the same poll, only 46 percent of the people “generally believe” the high court, and 40 percent don’t.

This poll suggests that half the country stands with the court and half against. The longer this tension persists, the more desperate each side grows. Such deep distrust of the court is the logical result of Barak’s judicial activism. His ideas might have sounded good to the “enlightened,” but they have brought Israel’s democratic system to the edge of the abyss!

Roots of Lawlessness

Israel’s democratic system entrusts the Knesset with creating new legislation. Since the 1980s, the high court opposed this structure and has sought to establish itself as the nation’s primary lawmaking body. Today, a few top judges make judgments based on the “principles of the enlightened.” Instead of being led by democratically elected leaders operating in a system of checks and balances, Israel is led in many areas by a few unelected judges. The nation is at the mercy of these unelected, “enlightened” experts.

“Cursed is the man that trusteth in man,” wrote Jeremiah the prophet (Jeremiah 17:5). Why is man cursed when he trusts in other men? Because the “heart is deceitful above all things, and desperately wicked: who can know it?” (verse 9, King James Version). This is the condition of the human heart and mind; this is the state of your heart, and the hearts of Benjamin Netanyahu and Aharon Barak. The human heart is subject to corruption and deceit; it is selfish; in many cases it craves power.

Ultimately, this is why democracies have checks and balances: to negate the lust for power within each of the branches of government. This is why, critically, those responsible for judging according to the national laws are not supposed to have the power to create the laws. When a court can judge a case outside of the law given to it by the legislature, it has unrestrained power.

History shows that every time the Jewish nation has faced its demise, the problem can be traced back to lawlessness and bitter division starting among the people. Israel is now firmly within another one of these historic cycles of nation destroying lawlessness.

Highly educated and intelligent individuals, even Supreme Court justices, are not immune to the inherent selfishness and corruption of the human heart. In fact, the intelligent are generally more susceptible to trusting in their own talents, intellect and perceptions.

In his free booklet America Under Attack,Watch Jerusalem editor in chief Gerald Flurry explains the origins of man’s selfish nature. Using the Bible, he shows that the selfishness and vanity exhibited by man today can actually be traced back to the rebellion of the great archangel that became Satan.

The prophet Ezekiel records this angel as the “most accurate, full of wisdom, and perfect in beauty” (Ezekiel 28:12). But this impressive spirit being was corrupted by vanity; he came to worship his own beauty and intelligence (verse 17). When this happened, he became the epitome of corruption and lawlessness (verse 15).

The Bible shows that Satan is the god of this Earth and that he broadcasts this same spirit of vanity and lawlessness into the minds and hearts of all men. The “heart is deceitful above all things” (Jeremiah 17:9). In 1 Kings 8:38, Solomon referred to human nature as the “plague of [our] own heart.” In 1978, the late author and teacher Herbert W. Armstrong wrote that “the selfishness, hostility, deceitfulness, wickedness, rebellion, etc. that we call ‘human nature’ is actually Satan’s nature” (The Incredible Human Potential).

Though few would recognize it, this is what explains the high court’s descent into corruption and lawlessness.

One of the merits of democratic governance is that to a certain extent, it limits human nature. National laws check the power of individuals to impose their will and harm others. But when an activist court bases decisions not on laws but on what it believes the law should be, then human nature—Satan’s nature—is allowed to run rampant. And this, as the Bible says, leads to serious problems.

An Attack on the State of Israel?

In America Under Attack, Mr. Flurry doesn’t just expose Satan as the original source of the lawless spirit that has taken hold of America (and the State of Israel), he explores the specific timing of this alarming trend. He traces the trend back to the late 1980s and shows how events at this time marked a “major turning point in history.”

He explores the U.S. Senate’s refusal in 1987 to confirm Judge Robert Bork to the Supreme Court and explains how this was a watershed moment in American jurisprudence. “The tide turned in a big way in 1987,” he writes. “Law started to get a lot weaker. And lawlessness started to get much, much stronger.”

It is not a coincidence that the nation of Israel began to descend into lawlessness at exactly the same time.

“Such a massive lurch toward lawlessness has a cause,” Mr. Flurry continues. “I want to show you exactly what that cause is. Most people will scoff at what I am about to say—but it is absolutely true, and you can prove it from your Bible. The most lawless being in the universe is a spirit being, Satan the devil.”

Mr. Flurry explains how that around that time, Satan was cast down to this Earth in a similar manner to that described in Isaiah 14:12. Confined to this Earth, Satan has “turned his full attention on physical Israel—the modern descendants of which are the nations of Israel—concentrating on three of these nations in particular: the birthright nations and the scepter nation, or America, Britain and the Jewish nation in the Middle East,” he wrote in March 2013. (To prove the identity of these nations request The United States in Britain in Prophecy, by Herbert W. Armstrong.)

Ultimately, this wicked, lawless being is behind the radical behavior of Israel’s Supreme Court! History proves that Satan is always trying to blot out the name of Israel, whether during biblical times or in years since (2 Kings 14:26-27). The recurring anti-Semitic pogroms against Jews are a constant reminder of Satan’s desire.

Satan is the one behind this attack on the rule of law. “Is he going to get people at the top of the nations of Israel to cast the truth to the ground?” Mr. Flurry asked. “I believe so. That’s the most efficient way to do it. Then he can use them to wage an assault from within on the truth and the law!” (ibid).

That statement summarizes what we have seen in Israel over the past 30 years: Israel’s Supreme Court, the institution that is duty bound to uphold the law, has assaulted truth and law!

History shows that every time the Jewish nation has faced its demise, the problem can be traced back to lawlessness and bitter division starting among the people. It’s hard to witness the bitterness within the State of Israel and not think of the historic parallels. Israel is now firmly within another one of these historic cycles of nation-destroying lawlessness.

However, the same prophecies that foretold these attacks against Israel also promise a time when Israel will finally fulfill its God-ordained purpose of being a light to the nations.

The prophets Micah and Isaiah both wrote that in the near future “out of Zion shall go forth the law, And the word of the Lord from Jerusalem” (Isaiah 2:3; Micah 4:2). That certainly is not taking place right now. An honest look reveals only division and lawlessness coming out of Jerusalem, just as division and lawlessness emanate from capitals of the other modern Israelite nations.

But not for much longer. As Micah continued, the Messiah will soon come, and “And He shall judge between many peoples, And shall decide concerning mighty nations afar off; And they shall beat their swords into plowshares, And their spears into pruninghooks; Nation shall not lift up sword against nation, Neither shall they learn war any more” (verse 3).

God speed that day!

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