Kremnitzer himself acknowledges that a culture of political morality, such as exists in many Western democracies, would be preferable to the court’s intervention. “The more the political culture imposes unwritten restrictions and limits on political activity, the less place, and need, there is for judicial intervention,” he writes. “Judicial activity… is no substitute for the public and educational efforts that must also be undertaken in order to craft an appropriate political culture.” But in practice, judicial activity is likely to become just such a substitute whenever the court not only asserts itself to be the arbiter of such issues, but actively works to promote public acceptance of this view. Kremnitzer never acknowledges or addresses this danger, a fact that undermines his conclusion that the proper remedy for Israel’s poor political culture is to be found in the courts.

One case to which he returns over and over is the court’s 1993 ruling, in the case of The Movement for Qual­ity Government in Israel v. the Gov­ernment of Israel, that Prime Minister Yitzhak Rabin was obligated to fire Aryeh Der’i as interior minister because of the draft indictment against the latter on corruption charges. Clearly, this case did not meet Kremnitzer’s first test, that the court examine only the legal aspect of government decisions. Indeed, the petitioner’s legal case was weak in the extreme: Not only did no law then on the books stipulate that a minister under indictment had to resign, but the new Basic Law: The Government, passed by the Knesset a year earlier and due to take effect in 1996, explicitly stated that only someone convicted of a crime involving a serious moral breach would be ineligible to serve as a government minister. Indeed, the court did not make any pretense that keeping Der’i in his post would violate an actual law. It merely stated, as it has in numerous similar rulings, that the decision was extremely unreasonable, and ipso facto was illegal. But the question of whether a given action is reasonable or not is by definition a value judgment—that is, a question of policy—rather than a question of law: It is a test applied only when the court is incapable of pointing to a specific law that the action in question violated, and it necessarily means that the court is substituting its own judgments on policy for those of the officials who were elected or appointed in order to make such decisions.

Kremnitzer deals with this problem by arguing, as the court itself does, that some decisions are so patently unreasonable that no reasonable person would make them, and that therefore they cannot be plausibly defended. In such a case, the court’s intervention is justified by one of his other criteria: that “the vast majority of the public would adopt [the court’s decision] as a general norm… if it were asked.” And Kremnitzer considers the Der’i case a self-evident example of such a decision. Yet there are numerous reasons why a reasonable person could have reached the opposite conclusion.

One is the time-honored principle that a man is considered innocent until proven guilty, and should therefore not be punished prematurely. Indeed, this was the consideration that motivated the authors of Basic Law: The Government in determining that only officials who were convicted should be compelled to resign. Another was the existence of weighty competing considerations of policy and politics, which played a major role in Rabin’s decision. Rabin was willing to swallow Der’i in the cabinet for another few months—all that was actually at issue, since Rabin and Der’i had agreed that the latter would go if and when the draft indictment was actually filed in court—because the prime minister considered an Israeli-Palestinian peace accord to be of paramount importance to the country, and thought that without the support of Deri’s Shas party, he would not be able to win Knesset approval of the treaty that was then being secretly negotiated, should it be concluded. And indeed, there were many Israelis, representing a wide range of views, who supported Rabin’s decision, whether due to agreement with his policy priorities or because of the primacy they attached to the presumption of innocence. Thus the Der’i case is actually a classic example of one in which the court did not meet Kremnitzer’s tests, because the public consensus it claimed to be representing was lacking.

But Kremnitzer’s argumentation is even more problematic than this example suggests, because in many cases he openly abandons his own standards, without offering any explanation. This is particularly true of the court’s activism on what he defines as human rights issues, such as the right of women to become fighter pilots, the rights of homosexuals, and certain issues of religion and state. Here, he freely admits that the court’s rulings often not only lack a basis in written law, but are also not backed by societal consensus. Indeed, he writes, there is no consensus, either local or international, regarding the scope of human rights or what weight they should carry in the face of competing values. Though international law includes a generally accepted catalog of rights, “the scope, force, and weight of these rights when set against other rights and interests—which are the truly important questions—cannot in general be derived from an international consensus. They also cannot be derived from an Israeli consensus—all the more so given the genuine disagreement (primarily between part of the religious community and some of the secular) over the very centrality and importance of individual rights.” In cases such as these, Kremnitzer’s own test of the legitimacy of the court’s activism—that “the vast majority of the public” would support the court’s conclusion—would appear to be unobtainable even in theory.

How, then, does Kremnitzer defend the court’s activism on these issues? Too frequently, the answer seems to boil down to the fact that he personally agrees with the court’s judgments. For example, when defending a ruling in which the court offered a sweeping rhetorical and legal defense of homosexual rights, in the case of El Al v. Danilevich, he writes simply: “Society reveals a demeaning attitude toward homosexuals, and they are clearly in need of legitimacy, both in the way society perceives them and in the way they perceive themselves. It is against this background that the court’s expansion of the discussion must be understood.” With that statement, and without any reference to his own tests for the appropriateness of judicial activism, Kremnitzer’s defense of the court rests.

This approach is nowhere more evident than when, toward the end of the essay, Kremnitzer turns to the court’s intervention in religious issues. A wide variety of religion-state issues have come before the court in recent years, including recognition of non-Orthodox conversions, civil burial, non-Orthodox and civil marriage, restrictions on certain occupations that are considered incompatible with Jewish tradition (such as belly dancing or importing non-kosher meat), government allocations for the Reform and Conservative movements, the status of non-Orthodox Jews in institutions such as municipal religious councils, the connection between an individual’s status as a Jew and his right to Israeli citizenship, and the broader question of what it means for Israel to be a Jewish state. Regarding these last two issues—Israel’s character as a Jewish state and the nature of Israeli citizenship—Kremnitzer reaches a conclusion with far-reaching implications for the nature of Israeli democracy. “It is not clear,” he writes, “that the final decision on these questions, which are difficult and sensitive, should be left solely in the hands of the legislature.”