There is perhaps no institution more widely respected in the contentious society which is Israel than its Supreme Court.  Virtually every controversy in Israeli public life ends up, sooner or later, in a courtroom, and eventually in the Supreme Court. Yet that court did not come into existence with a mandate for judicial review of Knesset legislation and administrative actions. Instead, over the years the Supreme Court  has developed principles and doctrines which have lead to its current level of  judicial activism. Here  we will give a short overview  of the Israeli Supreme Court and then set forth  a number of its recent decisions.  The reader may find that a history of the Court becomes  also a history of the State.
 
Because the different parties involved could not agree, Israel did not adopt a formal constitution when it came into being in 1948. Yet the need for some charter for the new state was clear. In 1950 it was decided that the constitution would be enacted gradually by the Knesset (Israel's parliament)  in the form of a series of so-called "Basic Laws."  After all the basic laws on various subjects had been enacted they would constitute, together with an appropriate introduction and several general rulings, the constitution of the state of Israel. (1)
 
But right from the start, the absence of a written constitution did not keep the court from developing judicial power over administrative matters.  In the middle of the War of Independence, when the very existence of Israel was at stake, the Supreme Court struck down a decision by the military to detain an Arab resident of Jaffa. The court ruled that the detention was illegal because the authorities had not followed correct procedure according to regulation. (2)
 
Again, in the famous Kol Ha'am case (1953), the court struck down a Ministry decision to order the suspension of a Communist newspaper for ten days. The court ruled that the government was not allowed to restrict freedom of the press unless it could be demonstrated that there is a clear and present danger to the State or to public order. (3)
 
Until the 1980s the Supreme  Court kept a relatively low public profile. The legal  concept of  "standing" used during this period meant that petitioners in a case had to have a direct and substantial interest in the case. They could not be petitioners simply as ideological bystanders. In the same way, the court held that issues involving foreign policy, military actions, or sensitive political issues were not subject to judicial determination.
 
Then, in its landmark decision in Ressler v. Minister of Defense, 1986 (a case involving the exemption of yeshiva students from the draft) the Supreme Court reversed its prior rulings on standing and justiciability (the question of the scope of the court's power to decide a particular case) even as it denied the petition on its merits. In the words of Justice Aharon Barak: "Any (human) action is susceptible to determination by a legal norm, and there is no action regarding which there is no legal norm determining it....the law encompasses any action." (4)  Similar revisions were made on the issue of standing. The Court decided that whenever a petition raises an important constitutional issue, or when there is a plausible claim of a serious governmental violation of the principle of the rule of law, any person  is entitled to bring the petition into court.  According to McGill University law professor Irwin Cotler, Israeli law on standing has become "the broadest of any parliamentary democracy in the world," and the law on justiciability is "also the broadest of any democracy." (5)
 
Judicial activism became even more pronounced  in 1992 with the passing by the Knesset of two Basic Laws: one called Basic Law: Human Dignity, and the other Basic Law: Freedom of Occupation. Since then, the power of Israeli courts to strike down legislation that contradicts the Basic Laws has become increasingly pronounced. In 1995 the Supreme Court ruled that the new Basic Laws of 1992 had brought about a "constitutional revolution" which empowered the court to strike down any ordinary legislation whenever the court deemed that it contradicted the provisions of any Basic Law. (6) The Supreme Court has grappled with balancing Israel's Jewish and democratic values - which are not always in perfect harmony - ever since.
 
Much of this broadened activism is due to Aharon Barak, a justice since 1978 and its president  since 1995. Born in Kovno, Lithuania in 1936, Barak survived the ghetto there and immigrated to Israel in 1947. He has had a most brilliant legal career, becoming dean of the law faculty of Hebrew University at age 38 and becoming attorney-general of Israel from 1975-1978. Retirement from the Supreme Court is at age 70, so Barak is likely to be president of the court until 2006.
 
The Supreme Court, and the entire Israel judiciary system, enjoys a high level of independence and autonomy. This is due partly to Basic Law: The Judiciary, which protects judicial independence. It may be due even more to the fact that judges are  appointed by a Judges' Election Committee which includes three Supreme Court justices among its nine members. The public has no input. And there is a convention that a candidate for the Supreme Court  will not be selected if the choice is not acceptable to  representatives of the court.
 
In spite of the high level of public support for the judiciary, the Supreme Court has its critics. Though much of the criticism comes from the right wing of Israeli politics because of specific decisions, some is more general. Ariel Rosen-Zvi, the late dean of the law school of Tel Aviv University, complained that this "legalization of life" caused questions to be dealt with by formal tools rather than allowing the political process to handle problems through consensus building and compromise. Others say that in Israel "government officials have learned to fear public law, rather than the public itself. Judicial micro-government creates the impression that anything that stands the test of the High Court need not stand the test of public opinion." (7)
 
Jonathan Rosenblum in the Jerusalem Post, June 29, 2001, likens the efficiency of  judicial selection to the Israeli Supreme Court to the efficiency of those trains in Mussolini's Italy which always ran on time. According to Rosenblum, Barak dominates the Court. Throughout the legal system, among judges, academics and the attorney-general,  there is fear of disagreeing with him. The Court is unrepresentative of  the wide ideological diversity of Israeli society, and because of its ability to "pack itself" it is self-perpetuating. He quotes Former Chief Justice Moshe Landau "they have taken on a role that they are utterly incapable of fulfilling, and for which they have not been trained. (8) 
 
Those who defend the court say that, lacking institutional checks and balances, the political system often depends on the court for protection. The court helps to guarantee the protection of individual rights and to assure at least a minimum of clean government. When the Supreme Court sits as the High Court of Justice (trial court) Israeli citizens enjoy the rare luxury of immediate and inexpensive access to the highest court in the land.  (9)
 
A sampling of some recent decisions by the Israeli Supreme Court should give us an idea of the range of its judicial activism.
 
In September of 1999, the Court banned the use of torture in interrogations. The ruling came one day after two car bombs went off. While human rights activists celebrated the decision, the Deputy Defense Minister said, "It's nice, it's just, but we (are) unlike Scandinavia or western Europe." (10)
 
In March of 2000, the Supreme Court ruled that Arabs could not be barred from living in a Jewish community. The suit was brought by an Israeli Arab couple who had been refused permission to buy land or a home in a Jewish cooperative settlement. A spokesman for the quasi-governmental Jewish Agency said that the settlement was in a part of Israel heavily populated by Arabs, and that a Jewish presence there was necessary to prevent an erosion of Israeli sovereignty. (11)
 
In May of 2000, the Supreme Court in a landmark decision recognized the right of a lesbian spouse to be registered as the second parent of her partner's biological son. An ultra-Orthodox lawmaker accused the judges of imposing the norms of the biblical city of Sodom. (12)
 
In February of 2002, the Court ruled that the Ministry of the Interior must register as Jews those Israeli citizens who were converted by the Conservative or Reform Movement in Israel or abroad. Chief Justice Aharon Barak drafted the majority ruling which recognized the legitimacy of the various religious streams of Judaism. (13)
 
In August  of 2002, the Supreme Court  ordered a delay in the expulsion to Gaza of three West Bank relatives of suspected suicide bombers. In September it finally agreed to the expulsion of two, but not of the third. The court ruled that the use of expulsions cannot be used on a widespread basis. The army must prove the family members had prior knowledge of or assisted with  the attacks (14)
 
And perhaps most unusual, from the point of view of our own judicial system: In June of 2001 the Supreme Court barred the appointment of a former intelligence agent involved in  the summary killing of two Palestinians as an advisor to Prime Minister Sharon. The court issued an injunction forbidding the appointment until the case can be decided by a tribunal. (15)
 
 
ENDNOTES
 
(1) Basic Laws: Introduction. http://www.knesset.gov.il/main/eng/engframe.htm The following is a chronological listing of Basic Laws: the Knesset (1958); Israel Lands (1960); the President of the State (1964); the State Economy (1975); The Army (1976); Jerusalem the Capital of Israel (1980); the Judiciary (1984); the State Comptroller (1988); Human Dignity and Freedom (1992); the Government (in its new version which replaced the law of 1968, 1992); the Freedom of Occupation (in its new version which replaced the law of 1972, 1994.
(2)."Judicial Accountability in Israel: The High Court of Justice and the Phenomenon of Judicial Hyperactivism", by Yoav Dotan.
(3) ibid.
(4) ibid.
(5).Azure: "Aharon Barak's Revolution," by Hillel Neuer.
(6) ibid.
(7) ibid.
(8) How not to pick a Supreme Court," by Jerusalem Post International Edition, June 29, 2001. Jonathan Rosenblum
(9).Azure, op. cit.
(10) "Israel Supreme Court bans interrogation abuse of Palestinians, September 6, 1999. CNN,
(11) "Israeli court: Arabs can buy land in Jewish Community, March 9, 2000.Jewish Agency for Israel
(12).Washington Post, "Israeli court backs lesbian rights, by Jack Katzenell, May 29, 2000.
(13) "Breakthrough in the struggle for religious pluralism in Israel," February 2002.HEMDAT,
(14). "Israeli court approves expulsion of terror suspects' relatives, September 3, 2002. CBC News,
(15)."Israeli supreme court bars appointment of Sharon adviser, June 15, 2001. Middle East Times,