Politicians in Robes

by Rabbi Steven Pruzansky

(First published at Israelnationalnews.com)

The abrogation of the Knesset’s “Reasonableness Law” by Israel’s Supreme Court was expected, given its ideological bent, although the thin margin that voided a Basic Law should give pause to any reasonable jurist. It seems lost on the majority of justices that the law that passed 64-0 was considered too narrow to meet the Court’s standards but the overturning of the law by an 8-7 majority must be, to the Court, a landslide. Suffice it to say that self-awareness is not the Court’s strength.

It further escapes the Court – or perhaps it does not – that the Oslo II agreement, as well as other significant pieces of legislation, passed the Knesset with even thinner majorities. And, like this decision for which the 8th vote in the majority was provided by an Arab Muslim justice, both Oslo Accords were passed without a Jewish majority voting for it. Of course, the difference as always comes down to ideological and political preferences, not law or justice. The Court finds rationales to sustain anti-democratic legislation and policies it favors and negates democratic legislation and policies it disdains. The justices are essentially politicians in robes, unelected and part of self-perpetuating oligarchy, claiming to be preserving democracy while evidently mocking it.

The decision legalizing same-sex adoption is of the same character. Its ban in Israel reflected Jewish tradition and the Torah’s ideal conception of a family and parenting, with mother and father raising children. Perhaps more importantly from a technical perspective, current law already accommodated same sex adoption, as can be seen from the Knesset Speaker’s family. Why, then, would the Court (again) usurp the Knesset’s power of legislation to coerce an unnecessary law? It would be only to flex its muscles by (again) poking a stick in the eye of Jewish tradition. It did, only because it could, because it has no restraints, no guardrails, no limiting principle.

The justices are not defenders of democracy; they are mockers of democracy, purveyors of pluralism and contempt for Jewish tradition, engineers of social justice rather than arbiters of the law. A child of nine could read in the current adoption law the words “a man and his wife” and understand their meaning. A progressive justice reads those same words and sees something else entirely - not a new interpretation of a Knesset law but an opportunity to usurp the voice of the people and implement what the court perceives as a desirable social policy.

Whatever that is, it is not democracy, as anyone but far left activists would understand the term. Our votes literally mean nothing. We don’t get to choose electors who propose laws with which we agree and thwart others with which we disagree - of whatever political persuasion that voter is. The judicial activists and their acolytes who fear the loss of democracy actually fear democracy itself. And a Jewish state that is not rooted in Jewish values rests on a shaky foundation.

Where does it end?

Well, where did it begin?

The great economist and political thinker Thomas Sowell recently published (at age 93, in fact!) a book entitled “Social Justice Fallacies” in which he discusses, among many other concepts, the development of judicial dictatorships, now well over a century old. It is rooted in the idea that the masses know little and need to be ruled and controlled by a cadre of elites who uniquely possess the “consequential knowledge” that affords them, and only them, the capacity to make correct decisions for everyone. And then, too, it was done under the false façade of democracy.

Its political patron was Woodrow Wilson, who posited (even before he became America’s 28th president) that consequential knowledge was concentrated in “experts,” whereas the people were “selfish, ignorant, timid, stubborn or foolish.” Wilson deplored the “error of trying to do too much by vote” (Chapter 5).

Roscoe Pound, the long serving Dean of the Harvard Law School, aggressively promoted this notion, among other progressives.

Professor Sowell continued (ibid): “Roscoe Pound set forth principles of judicial activism— going beyond interpreting the law to making social policy— that would still be dominant, more than a hundred years later, and on into the present. One of the rationales for such an expanded role for judges has been the claim that the Constitution is too hard to amend, so that judges must amend it by “interpretation,” to adapt it to changing times.”

“Like so much that has been said and repeated endlessly by elites with the social justice vision, this rationale is contradicted by readily available facts. The Constitution of the United States was amended 4 times in 8 years— from 1913 through 1920 — during the heyday of the Progressives, who claimed that it was nearly impossible to amend the Constitution. When the people wanted the Constitution amended, it was amended. When the elites wanted it amended, but the people did not, that was not a “problem” to be “solved.” That was democracy, even if it frustrated elites convinced that that their superior wisdom and virtue should be imposed on others.”

“Why judges and sociologists should be making social policy, instead of people elected as legislators or executives, was not explained…Whether in law or in other areas, one of the hallmarks of elite intellectuals’ seeking to preempt other people’s decisions— whether on public policy or in their own private lives— is a reliance on unsubstantiated pronouncements, based on elite consensus, treated as if that was equivalent to documented facts… Supreme Court Justices with lifetime tenure are classic examples of elites who institutionally pay no price for being wrong— no matter how wrong, and no matter how high the price paid by others.”

Professor Sowell was not, but could have easily been, defining and excoriating Israel’s judiciary, which has far exceeded even Wilson and Pound’s wildest fantasies in its contempt for the people. And that has become the bottom line in Israel’s Supreme Court – not merely the trampling of democratic norms but also the sheer hubris in thinking that they are better, wiser, and superior to the rest of us, that we the people are rubes who cannot be trusted with any decision and that even our votes should not count for much. In a nutshell, that is the essence of the Court’s nullification of the “Reasonableness Clause.” It is a keen distrust of the people and the people’s voice. Knesset members – the people’s voice – can and should pay a price for bad policies. The Court pays no price at all, ever; no matter the harm it inflicts on the people, it marches merrily along wrapped in the robes of its sanctimony.

Thus, the Court comes alive when a right-wing government is in power and sits quietly when a left-wing government rules. It is less a Court that defends democracy than a star chamber that endows its own decisions with sanctity and certitude, is convinced of its inerrancy, and protects its prerogatives at all costs.

That the Court chose to release these decisions at such a perilous time in our history underscores how disconnected it is from the rest of us. Granted, the internal regulatory bookkeeping mandated, it will claim, the publication of these decisions. But since when was this Court bound by anything in writing, by tradition, or by legislation? Surely it could have found a better way than to sow disunity in wartime.

This is especially true because of, arguably, the Court’s own complicity in the catastrophe of Shemini Atzeret, as its ruling in years past that prohibited the IDF from opening fire on hostile elements approaching the Gaza border fence could have inhibited the preparations and response of the army. And we will likely never know because this Court will insist on controlling the formation of any commission of inquiry after the war – to protect its power and to influence the conclusions.

The Court’s pronouncements make our country less Jewish, less democratic, and less safe. For how long will that be tolerated? What can be done? The answers to these questions will literally determine the spiritual and physical future of our State.