What Israel's Supreme Court Should Look Like

Is compromise ojudicial reform in the offing? (Algemiener)

I dunno. A lot of what I have been reading lately about judicial reform in Israel leads me in an entirely different direction than what the critics are saying. And there are a lot of critics saying the same negative things about judicial reform from a variety of political and religious perspectives. But consider the following statistic quoted in the Jewish Press: 

78% (of the Israel public offered) support for changes in the judicial system, against only 22% who oppose any change and insist on leaving the system as it is.

If this is anywhere near true, then mainstream media reporting has been very misleading. The massive protests are just very loud and although well attended - not necessarily as numerous and broad based as the media portrays it.

But still, the many Israelis that are protesting are as angry as I have ever seen. The size and anger of these protests are unprecedented in the extreme. And Israel's mainstream media is right there cheering them on. Not only that but a lot of good people from across the political spectrum seem to be right there with them. They would like things to stay as they are.

Why is that? One has to look at the conflict over the years between those with liberal values and those with conservative values. As well as the conflict between religious Jews and secular Jews. Conflict is inevitable. Liberal Israelis want to leave things as they are. They approve of a Supreme Court that almost always sides with their values. They consider those values to be the epitome of a democracy They will for example see LGBTQ+ rights trumping religious rights every time. The Supreme Court as it stands always seems to favor their political perspective. Secular protesters also see the current court's decisions as a bulwark against a religious dictatorship. 

But at what cost? Is a judiciary that favors secular or liberal values over conservative and religious values really democratic? Don’t religious Jews have the same rights to live in a society that reflects their values as secular Jews do to live in a society that reflects theirs? Shouldn’t politically conservative Jews have the same have rights as politically liberal Jews. Why should only one side almost always be granted justice at the expense of the other? 

Secular Jews might say for instance that giving LGBTQ+ people rights does not impede the rights of religious Jews. But is that really true?  Let s take a look at a couple of US Supreme Court decisions by way of example. 

Obergefell v. Hodges  made same sex marriage the law of the land. Religious people believe that sexual intimacy between a same sex couple is immoral. And that decision promoted immorality as normal behavior. 

One can debate whether that’s true - depending on which side of the issue one is on. But to religious Jews – their values were rejected by that decision and instead - liberal values were honored. The same thing is true with any legislation when civil rights trump religious rights. A democracy requires the rights of both to be considered. 

Which is why a self perpetuating unchallengeable Supreme Court composed of justices of only one political perspective is dictatorial and undemocratic. Unlike Israel, the US Supreme Court can change its political composition depending on which political party is in power when there is a vacancy. Not so Israel.

What happened in Masterpiece Cakeshop v. Colorado Civil Rights Commission would never happen in Israel. Masterpeice would have lost. The rights of people whose religious values require them to refrain from anything that promotes sexual immorality - as was the  case with Masterpiece - would have denied in Israel. Religious liberty is almost always short changed by a politically liberal judiciary. The the religiou sand politically conservative  community deserves better. They should have the same chance at getting a decision in their favor as does the secular  and politically liberal community.

This is what all the angry critics seem to be missing. The way Israel's Supreme Court is now structured more often than not it gives short shrift to the  rights of religious Jews.

Whatever the motives of the current government might be, challenging the current structure of the Supreme Court is the right thing to do. The system need not - nor should not - be changed to facilitate any kind of extreme agendas that might have generated this challenge. But changed it should be. 

Neither side should be given short shrift  There has to be balance - so that it isn’t only one side that usually wins. That’s what the US has and that is what Israel should have if they really want to be the democracy they claim to be. I wish all the angry  protesters would realize that and stop screaming bloody murder. Instead I would like to see more support for compromise as suggested by Israel’s President Isaac Herzog. Apparently there is some good news on that front, From the Algemeiner: 

“We are closer than ever to the possibility of an agreed outline. There are agreements behind the scenes on most things. Now it depends on our national leadership, the coalition, and the opposition, who will manage to rise to the magnitude of the moment, who will understand the terrible alternative that is hidden in the situation beyond the door, and who will put the country and the citizens above everything else,” Herzog told the local officials. 

How about some demonstrations supporting that instead of all the doom and gloom being expressed by the mainstream media whose reporting on this issue increases public anger and outrage among well meaning people. If President Herzog is right, then Israel is far from destroying democracy. It is in instead on its way to increasing it. At least as far as the judiciary is concerned