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PDF FormatLike the editorials three months earlier, the Hoter-Yishai interview provoked a storm of outcry. A number of public figures from the opposition, as well as politically unaffiliated good-government groups, demanded that the Bar’s chairman be punished for his remarks. MKs Ran Cohen (Meretz) and Ophir Pines (Labor) called for a criminal investigation of Hoter-Yishai for defamation of the court.40 The Movement for Quality Government in Israel, a well-known watchdog group, asked Justice Minister Tzahi Hanegbi to remove Hoter-Yishai from the nine-man committee which appoints all of Israel’s judges.41 And the Amitai–Citizens for Good Government group demanded Hoter-Yishai’s ouster as chairman of the Bar, and filed a police complaint and urged the Tel Aviv district attorney’s office to expedite a stalled investigation against Hoter-Yishai for tax evasion.42 (Coincidentally or not, Hoter-Yishai was indicted a week after the interview.)
Former Supreme Court President Moshe Landau said it was “impossible to let the Bar Association chairman’s crude outburst against the Supreme Court pass in silence,”43 while Hanegbi warned that “categorical accusations against all the judiciary’s activities, or against the entire Supreme Court or against the Supreme Court President personally, are unacceptable—especially when they come from the head of the Bar Association.”44 And Prime Minister Netanyahu decried what he called “unrestrained attacks” on the court and its justices.45 The Bar’s ethics committee recommended that State Attorney Edna Arbel file disciplinary charges against Hoter-Yishai on account of his comments.46 And three months after the interview, the Movement for Quality Government filed a petition with the High Court demanding that Hoter-Yishai be removed as head of the Bar Association due, among other things, to his criticisms of the court.47 Today, the petition is still pending, as is Hoter-Yishai’s tax-evasion trial. Yet regardless of the outcome, the message has been made loud and clear: Raise your voice against the Israeli Supreme Court, and be prepared for a war of more than just ideas.
IV
To appreciate just how out of step the Israeli public’s reaction to criticism of the Supreme Court is with prevailing democratic standards, one need only consider the example of the United States, where judicial activism got its start. The U.S. is one of the only countries in the world whose Supreme Court can compete with Israel’s in the degree to which its rulings go beyond the interpretation of explicit laws; as a result, it has also hosted some of the fiercest disputes on the legitimacy of judicial activism.
The role of the courts has been a hot issue in the U.S. for decades, but the debate became increasingly fierce after the 1973 Roe v. Wade decision, due to the court system’s growing involvement in highly controversial, value-laden decisions. In last year’s Romer v. Evans, for instance, the U.S. Supreme Court overturned a Colorado law that barred localities in that state from according homosexuals special protections as a minority group. In Compassion in Dying v. Washington, the Ninth Circuit Court of Appeals ruled that the state of Washington could not prohibit physicians from assisting suicides, because “the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”48
These rulings sparked an angry response from large segments of the American public, on both substantive and procedural grounds. Substantively, many people simply rejected the court’s moral conclusions. The procedural objection, however, stemmed from an impression that the Supreme Court had been granting constitutional status to “rights” of its own creation, which in fact did not appear in the Constitution. Roe v. Wade, for example, was decided on the basis of a “right to privacy” which, unlike the freedoms of speech and religion, finds no explicit Constitutional protection. These court-initiated rights were then employed by the judiciary to rule on controversial moral questions, such as abortion or physician-assisted suicide, which according to the anti-activist camp should be left to the legislatures, as the body more capable of reflecting accurately the values of society.
By last year, the furor in the anti-activist camp had reached an almost revolutionary pitch, exploding in a symposium entitled “The End of Democracy? The Judicial Usurpation of Politics” in the November 1996 issue of First Things, a conservative, religious monthly published by the Institute for Religion and Public Life. The symposium was explicitly devoted to the question of whether judicial imperialism had essentially transformed the U.S. into an oligarchy rather than a democracy, and whether, in the words of editor-in-chief Richard John Neuhaus, “we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime.”49 “Again and again,” wrote Neuhaus in his introduction to the symposium, “questions that are properly political are legalized, and even speciously constitutionalized.” Neuhaus went on to delineate the purpose of the symposium:
The proposition examined in the following articles is this: The government of the United States of America no longer governs by the consent of the governed. With respect to the American people, the judiciary has in effect declared that the most important questions about how we ought to order our life together are outside the purview of “things of their knowledge....” The courts have not, and perhaps cannot, restrain themselves, and it may be that in the present regime no other effective restraints are available. If so, we are witnessing the end of democracy.50
The language used by most of the authors in this symposium was similarly extreme, and reflected a much deeper dissatisfaction with the institutions of government than did the editorials in Yated Ne’eman and Hashavua. Robert Bork, a former federal judge who was Ronald Reagan’s first choice for a seat on the Supreme Court (the nomination was rejected by the Senate), went as far as calling the justices “outlaws”: “An outlaw is a person who coerces others without warrant in law. That is precisely what a majority of the present Supreme Court does. That is, given the opportunity, what the Supreme Court has always done,” Bork wrote, referring to a series of cases in which the court upheld “rights” which were not explicit in the Constitution. “The justices are our masters in a way that no president, congressman, governor or other elected official is. They order our lives and we have no recourse, no means of resisting, no means of altering their ukases. They are indeed robed masters.”51 Hadley Arkes, a professor of jurisprudence at Amherst College, concurred: “In one issue after another touching the moral ground of our common life, the power to legislate has been withdrawn from the people themselves, or the ‘consent of the governed,’ and transferred by the judges to their own hands.”52
In advocating their various solutions, the symposium’s contributors called for a serious counteroffensive. Bork, for instance, suggested that court rulings be made subject to reversal by a majority vote of both houses of Congress, or that the courts simply be stripped of the power of judicial review:
On the evidence, we must conclude, I think, that this tendency of courts [toward judicial lawmaking], including the Supreme Court, is the inevitable result of our written Constitution and the power of judicial review. A court majority is impervious to arguments about its proper behavior. It seems safe to say that, as our institutional arrangements now stand, the court can never be made a legitimate element of a basically democratic polity.53
Russell Hittinger, a professor of law and Catholic studies at Tulsa University, went even further, raising the specter of open resistance. If reform cannot be achieved through other means, he said, “the option remaining to right reason is the one traditionally used against despotic rule: Civil disobedience.”54
One can easily fault the symposium’s contributors on numerous grounds, including their analysis, their tone and especially the radicalism of their remedies. Indeed, the overwhelming majority of conservative opponents of court activism were highly critical of the symposium. But the symposium, and especially the reactions it evoked, are instructive from a wholly different perspective: How public debate on such a controversial question ought to be handled. Not surprisingly, a wave of ferocious responses followed its publication, including from conservative circles generally in agreement with the editorial line at First Things. Two members of First Things’ editorial board promptly resigned, as did a member of its editorial advisory board. The magazine was bombarded by enraged letters to the editor (although it received a healthy number of favorable responses as well). “I am appalled,” wrote Commentary editor-at-large Norman Podhoretz in a typical negative response, “by the language... you use to describe this country.”55
