Behind the smiles and the polite exchanges between Justice Minister Ayelet Shaked and President of the Supreme Court Justice Esther Hayut, a battle of principle is being waged. This battle isn't about good or bad, right or left, or religious vs. secular. The battle is over the role of the Supreme Court in a democratic society and its status when dealing with other government authorities.
This fight, which should have taken place 20 years ago or more, was waiting for a determined, focused justice minister who is not a legal scholar enthralled to the revolutionary outlook of former Supreme Court President Justice Aharon Barak, an approach that was widely adopted by most of the Israeli legal community, and which sees the Supreme Court as an elite unit that floats high above other government authorities and directs their goals and actions.
Under the flag of judicial activism and the constitutional revolution, legislation and governance were confounded and the court took on a leadership role without having been elected to do so. In those days, Barak instituted a revolutionary, worrying change to the effect that Israel's Declaration of Independence itself lays the groundwork for the court to cancel laws, an approach that goes against years of judicial rulings, which view the Declaration of Independence as a declaration only, rather than a document that sets down rules.
The main point of friction is the question of the appointment of Supreme Court justices. In the past, it was assumed that members of the Supreme Court family would usually take in those who thought similarly. The justices benefitted from the fact that most of them thought the same way, and to pacify the majority religious or Arab justices would be nominated from time to time to create the impression that a wide range of opinions was represented. After the constitutional revolution, it turned out that rulings on issues of principle could be predicted based on the justices' personal agendas. A notable example was the recent ruling on businesses that operate on Shabbat: All the secular judges ruled one way, while the religious judges ruled the opposite.
Given this, the two latest appointments to the court are hugely significant. It is vital to realize that the president of the Supreme Court is allowed to determine which justices will rule on important cases, so the number of religiously observant judges isn't really important. Judges can always be assigned to panels in which they will comprise a majority or a minority, based on their own worldviews. So it's crucial that the justices appointed to the Supreme Court are outstanding scholars of jurisprudence, both in terms of legal theory – justices that will challenge their colleagues, who have been treading the same ground for years – and force them to deal with the legal legacy of Aharon Barak on a theoretical level.
Professor Ruth Gavison was rejected because of these exact qualities. The list of candidates for the Supreme Court bench included good, worthy judges. In ordinary times, many of them would be appropriate appointees. But right now, we need to choose the justices who are most capable of challenging their colleagues, and there are few like these on the list.
