Two Views on Israel's Supreme Court Controversy

Leslie Stahl (Screenshot - 60 Minutes)

The war rages on. No... I’m not talking about Ukraine. I’m talking about Israel.  The sad reality is that Israel is more divided between left and right than the US is. And that’s saying something.

Not that this is news. But the way this division has been manifested since the Netanyahu government tried to overhaul the Supreme Court is by unrelenting protest (some of it pretty violent) by the left against the Netanyahu government which seeks to overhaul the Supreme Court.   

I use the term ‘left’ loosely since a lot of the protesters are more or less centrist both politically and religiously. However, there is little doubt in my mind that it s the left that is most upset by these reforms and leading the charge!. The question is, are these protests justified?

Well… the answer to that is it depends who you ask.  The right will say it is sour grapes by the left who lost the election to a majority right wing parties. The left will say that Israel’s very democracy is at stake. In my view they are both right.

What the government has done so far is remove a very subjective ‘reasonableness’ standard as a basis for the Supreme Court to reject a Knesset passed law as ‘unconstitutional’. I would hardly call that the end of democracy in Israel. If on the other hand the Knesset would  strip the court of all of its power that a democracy as we know it could turn ito a dictatorship of whichever party is in power. Currently the right.  

But removing the reasonableness guideline for determining a law’s constitutionality has in any way doe that.. If there is no further judicial reform legislation passed nothing will be lost. The will of the majority that elected the right wing parties that constitute the governing coalition will be done. But not without the the court’s ability to protect  the minority.

Two views have surfaced recently on this issue. 

One of them is by the highly subjective left wing 60 Minutes reporter, Leslie Stahl. She characterized protestors as the saviors of Israeli democracy. 

Stahl interviewed several protesters that have been on the forefront of the protests. treating them with great sympathy and as heroes, And painted the government’s position as a potential right wing dictatorship - accusing  the ultra-Orthodox (Charedi) parties of trying to create a theocracy that would take away the rights of the LGBTQ community

Although she also interviewed Justice Minister Yariv Levin, architect of the Reform Bill respectfully, it was clear where her sympathies strongly lie.  I should add that Stahl is Jewish but not in any way observant. Perhaps even anti observant. Making her the ideal critic of anything remotely religious being implemented in Israel.

Rabbi Aaron Lopiansky (Torah Web)

Then there is Rabbi Aaron Lopiansky, Rosh HaYeshiva of the Yeshiva of Greater Washington. He  is a Charedi Rav that I respect for his honesty, intelligence  and common sense approach to all issues. (I recall disagreeing with him only once.) In my view his analysis in Mishpacha Magazine is quite balanced.

It might surprise people to know that he actually understands the opposition and even agrees with them to a certain extent. Democracy can indeed turn into a  dictatorship. And not necessarily a benevolent one. To use one of his excellent examples: 

If a majority passes a law that a minority of people should be enslaved, should that be the law of the land?

The idea being that there has to be a way to determine whether a law passed by the majority is a ‘reasonable ‘ one.

The question is, who gets to decide? In pursuit of the answer Rabbi Lopiansky suggests that the term reasonableness is a bit misleading.  A better term is morality. Therein lies the crux of the issue. Who gets to decide what is and isn’t moral? And what is their source for determining that?

Is it a left wing court that for example believes that sexual relations are not a moral issue? And therefore forces upon its populace laws that reflect that view? How is that fair to religious Jews that do see sexual relations to be a moral issue?  

That former view is in fact the way the court has operated in the past. They will now have a more difficult time using their own  subjectivity strike down laws that do not comport with their sense of morality.   

What is entirely unwarranted is the fear by the secular left that Israel is in the process of becoming a theocracy. That will not happen until the advent of the Messiah. Until then the minority cannot be ignored. Their rights will be protected. 

But so too will the rights of religious Jews be protected. Until this law was passed, Charedim were given very short shrift by the Supreme Court. For example when a ‘pride parade’ in the holy city of Jerusalem was made illegal by the city. The court overturned it, shoving ited down the collective throats of the Charedi community. And simple courtesies like allowing separate hours for men and woman at a pool or separate beaches for men and women will be honored instead of being considered sexist by the standards of the left. 

Even if the Charedi world would desire a theocracy, they cannot have one. We no longer have the capacity to mete out biblical judgments on violations of Halacha. Even those so severe that they carry carry a death penalty. So that people who violate Shabbos even deliberately would be able to continue doing so with impunity to their heart’s content. But  with the reforms jus passed, religious rights will be better protected.

Will it be ideal? No. But I believe that supreme Court decisions  will be a lot more balanced under this new law. Both the religious community and the secular left community will be protetted with each giving up a llttle of their rights so that the other can be afforded their share of rights. 

 My hope is that judicial reform ends as it stands now. The court  will still be a check against government overreach... that the left stops protesting..; and that all  Israelis can go back to living their lives in complete freedom and harmony, despite their many differences. It can be done. If there is a will, there is a way.

Is there a will?