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PDF FormatBut unlike in Israel, no one went so far as to demand a criminal investigation of the authors or to call for the magazine’s closure.56 Nor did the angry reaction to the symposium include any attempt to delegitimize the issues it had raised—despite the symposium’s sharp tone and drastic proposals. Gertrude Himmelfarb, for instance, opened her letter of resignation from First Things’ editorial board with the following declaration: “I entirely agree with those contributors to the November symposium ... who maintain that the judiciary has vastly exceeded its proper powers and that this is a very serious problem for our polity. But I do not at all agree that this raises the specter of the illegitimacy of our government.”57
A telling indicator of the widespread belief that the symposium was a legitimate part of a healthy debate was the wave of letters, both pro and con, published in subsequent issues of the magazine. That people chose this medium to express their reactions underscored the fact that the publication continued to be seen as a reasonable forum for conducting a serious ongoing discussion. Presumably, one does not write letters to the editor of a seditious publication which should be shut down, and whose editors should be imprisoned.
This attitude was also reflected in the opinions of many leading conservatives who particpated in a symposium Commentary organized in response. Most objected to First Things’ radical approach, but nevertheless defended the importance of the issues it had raised. “It is totally unsurprising and entirely appropriate for conservatives to worry [about] the issue of judges abusing their powers,” wrote Robert Bartley, editor of the Wall Street Journal. While he disapproved of First Things’ “inflammatory rhetoric,” he went on to opine that “[a]s the conservative cause prospers, its proliferating publications inevitably have to practice what the business world calls brand differentiation.... If First Things finds its thing with the illegitimacy of the ‘regime,’ so what? May they all in their own ways prosper.”58
Nor did anyone conclude that First Things’ harsh rhetoric precluded further discussion on the topic. Five weeks after the symposium appeared, for instance, the conservative magazine The Weekly Standard, which had also opposed the tone of the First Things articles, published a fighting editorial of its own entitled, “It’s Time to Take On the Judges,” attacking a recent decision by a California judge to suspend implementation of a statewide ban on affirmative action—a measure that had been approved by a referendum of 4.7 million California voters. Incensed by the fact that these millions had been set at nought by a man “with only one vote in any election,” the The Weekly Standard called for “a popular outcry against unelected officials and their efforts to invalidate the results of elections” and advocated instituting term limits for judges.59 The original constitutional guarantee of lifetime tenure for judges, the The Weekly Standard argued, had been predicated on the assumption that the judiciary was not a policymaking institution, but a check on those institutions that did make policy. Now that judges had become policymakers as well, the price they had to pay for ignoring the popular will should be the same as that of any other policymaker.
In short, the First Things symposium—despite being far more radical than the editorials or interviews published in Israel critiquing the Supreme Court—was taken in stride, and the long-standing debate on the issue continued in full force. Instead of using the fact that the legitimacy of America’s constitutional regime had been called into question as an excuse to dismiss the contributors’ substantive criticisms of the court—as the fallacious charge of incitement was employed against the haredi papers—the symposium’s critics managed to separate rhetoric from substance, and encouraged discourse on the latter. Critics of the First Things symposium acted on a belief that America’s democratic institutions, including the Supreme Court itself, were strong enough to cope with such a discussion, and that the issue itself was far too important to permit its suppression.
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In Israel, on the other hand, the volume and rancor of the public’s response exceeded the bounds not only of normative public discourse, but even of Israel’s own vitriolic traditions. In the name of democracy, moral and legal censure was advocated to crush debate on an issue essential to the maintenance of a democratic society. In their attack, critics advanced a series of highly specious arguments to explain why the usual protections of free speech should not apply—arguments which, if taken to their logical conclusions, could effectively squelch public discourse on almost any important issue. But even if limited to the particular case of judicial activism, these arguments would deprive the citizens of Israel of the right to debate a fundamental question affecting their system of government, as well as their daily lives.
The principal claim against the court’s critics was that the statements against Barak and his court amounted to incitement to violence, the same charge hurled at political opponents of Yitzhak Rabin after the assassination. As a rule, democracies offer little room for legal sanction against people who write or speak their opinions, except in the rare instances of actual incitement to violence.60 As explained by none other than Israel’s Supreme Court, the test employed in such cases is whether a given statement is “almost certain” to result in violence, a judgment that depends on both the context and content of the statement. With respect to context, an editorial is not a speech before an inflamed mob; it is one of the tamer forums in which to get across criticism. It is for this reason, among others, that the written press has traditionally been afforded a very high level of protection in democracies.
With respect to content, the editorials made every effort to limit their prescription to actions that were strictly political in nature. The Yated Ne’eman piece, for instance, concluded with the following statement:
Now that Aharon Barak has become a third-rate politician, we simply need to change the way we relate to him. [Former Meretz minister] Shulamit Aloni has been pensioned off ... and something has gone wrong with the account [former Labor minister] Binyamin Ben-Eliezer was going to settle with the haredim. Now we have to deal with this new enemy who has come to replace them. And as, with God’s help, we succeeded with them, we will also succeed with him.61
In other words, Barak should be fought with political weapons, just as Aloni and Ben-Eliezer were: Aloni was persuaded to retire by her own colleagues when it became clear that her inability to refrain from criticizing values and institutions cherished by religious Jews made her a political liability. Ben-Eliezer’s party was voted out of office in national elections, in large part because of the overwhelming haredi vote against Labor’s prime ministerial candidate.
Similarly, the Hashavua article concentrated on political strategies, stressing that Barak’s “armor” is his status as a figure who is above criticism, and that he can only be defeated once he is “part of the political game.” And while cries of incitement focused on the piece’s reference to Barak’s mortality (“even if he wins he has become mortal and vulnerable”), the context of the military metaphor made it clear that the article was referring to political rather than physical vulnerability. Coupled with the explicit disclaimer (“of course, this means vulnerability on the level of ideas—not, God forbid, anything else”) and the ensuing call to civility (“It is forbidden to act without civility, since in doing so, you will not convince anyone of anything—except that you are a boor”), the claim that the piece constituted incitement was more than just irresponsible. Its promotion by a legal community that prides itself on the careful reading of texts bears the appearance of a deliberate distortion.
The editorials’ legal unimpeachability did not prevent a number of prominent figures from claiming that the emergence of death threats retroactively incriminated the editorials in incitement, an argument that was problematic on two counts: First, no evidence was ever offered that the editorials actually inspired the threats. It was far more likely that the latter were a reaction to the same event which prompted the editorials—that is, the court’s ruling on the Bar-Ilan case. It may even be that the ensuing media blitz charging the editorials of endangering Barak’s life, and not the editorials themselves, triggered the death threats. It was precisely this possibility that convinced State Attorney Edna Arbel to oppose the publicity over the bodyguards assigned to Barak following the editorials: “It could, God forbid, give people ideas.”62
