Ask people on Israel’s streets what transpired Tuesday in the High Court of Justice, and most would probably say that a “dramatic” hearing was taking place.
Many could probably say what the hearing was about: petitions calling for the court to strike down an amendment to a basic law limiting the court’s use of the reasonableness standard to overturn government decisions.
Why are most people aware of this hearing? Because the media has been hyping this for a week as nothing less than the most important High Court of Justice case of the century – if not in the country’s history.
For a week, the term “dramatic” has been repeatedly used in television and radio reports leading up to the hearing, emphasizing that the very fate of the country rests in the hands of the 15 Supreme Court justices hearing the case.
But who are those judges shaping the country’s destiny? Who are those justices whose ruling, expected in the coming weeks or months but no later than mid-January, will profoundly influence the nation’s course for years to come?
Paradoxically, given the importance of these judges’ role, most Israelis would be hard-pressed to name five of the 15 justices sitting on the bench.
Sure, everyone has heard of Esther Hayut, the soon-to-be-retiring Supreme Court president. Many, as well, have heard of Yitzhak Amit, the man expected to replace her in a few months, and of Noam Sohlberg, who is slated to take over as Supreme Court president in five years.
But Ruth Ronnen? Yechiel Meir Kasher? Chaled Kabub? These are not exactly household names.
Even though these judges may hold the nation’s fate in their hands, most people could encounter them on the street and have no idea that they just bumped into one of the country’s top jurists.
Just as the names and faces of the majority of Supreme Court justices are not known, neither is their judicial philosophy nor politics. As such, it is easy – as some opponents of the court do – to paint the court as overwhelmingly left-wing or liberal. A closer look at the court’s composition, however, reveals a more balanced representation of conservative and liberal viewpoints than commonly believed.
Rather than framing the court as Right or Left, it is more accurate to divide it along the lines of conservative and liberal ideologies, encompassing judicial philosophy (conservative vs activist) and broader worldviews.
That a look at the individual members of the court reveals a court more balanced than popularly believed does not mean that it in any way mirrors the total mosaic of Israeli society. It does not.
Only two Mizrahi judges are on the court, even though Mizrahim make up an estimated 50% of the country’s Jewish population. There is only one Arab judge, even though Arabs constitute nearly 21% of the population.
The haredim comprise 13% of the population, but there is no haredi judge, and women – who comprise just over 50% of the population – only have six seats, or 40%, on the bench.
The settlement population is slightly overrepresented, with two Supreme Court justices (some 13% of the court) living in communities beyond the Green Line, while the percentage of Israelis living beyond the 1967 lines, including in Jerusalem, stands at about 8.5%.
Liberal vs. Conservative
The liberal vs conservative dichotomy on courts is not unique to Israel. In the US, for instance, there is always much discussion about this balance and how one president’s appointments to the court will either maintain or disrupt that balance.
Most observers say the US Supreme Court is today a conservative court, with the consensus being that six of the nine judges are conservative, and three are liberal. These worldviews and political philosophies are reflected in the opinions they write.
In Israel, it is a bit trickier to come up with such a clear-cut scorecard for several reasons.
One reason is because of the number of justices – the more judges, the more likely that there will be some who are more difficult to classify and who defy easy categorization.
Further, the court’s frequent changes in composition – due to the mandatory retirement age of 70, contrasted with lifetime appointments in the US – make it more challenging to pigeonhole and present a clear ideological picture.This doesn’t prevent one from trying.
Yediot Aharonot on Tuesday profiled the court and drew the following conclusions: Seven justices were classified as liberal (Hayut, Amit, Uzi Vogelman, Daphne Barak-Erez, Anat Baron, Ronnen, and Kabub).
Four were considered conservative: Sohlberg, David Mintz, Yosef Elron, and Alex Stein. Four others – Yael Willner, a religious woman who wears a head covering; Ofer Grosskopf; Gila Canfy Steinitz, the wife of former cabinet minister Yuval Steinitz; and Kasher – were classified as judges whose judicial orientation is not clear.
Assuming this is an adequate reflection, a court that has seven liberal judges, four conservative ones, and four whose opinions vary, making it difficult to pigeonhole, is not as imbalanced a court as is often perceived.Furthermore, the orientation of the four judges with unclear positions and the characterization of Kabub and Ronnen as liberals can be debated.
Another reasonable scorecard of the judges’ record might look like this: five liberal justices (Hayut, Vogelman, Amit, Barak-Erez, and Baron); five conservative justices (Sohlberg, Mintz, Elron, Stein, and Wilner); two who could be considered centrist in their judicial philosophies (Kasher and Kabub); two others leaning centrist toward the conservative side (Canfy Steinitz and Grosskopf); and one centrist leaning toward the liberal side (Ronnen).
Tuesday’s high-profile hearing that was broadcast live shined a spotlight on the court and its proceedings. One consequence may be exposing the public to a court with justices whose judicial philosophies are not as monochromatic as previously thought.
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