Judicial Activism Has Gone Off the Rails

A closer look at the ruling by Supreme Court Justice Elyakim Rubinstein, who struck down the government’s Gas Deal, shows just how scandalous it is

. A new low for Israel’s judicial system. Photo: Miriam Alster /Flash90

It is difficult to describe the feeling one gets from reading Justice Rubinstein’s lengthy decision. It’s a combination of astonishment and consternation: Is he mocking us? Is this what a decision on such a strategic issue looks like? Is this the best they could do? Are these really the arguments behind this landmark ruling?

In fact, Rubinstein does not muster convincing arguments for his position. His decision lacks logical clarity. It is intellectually and analytically weak and muddled. His arguments have a very tenuous relationship with facts, and his citations and references—oh, those references—if I didn’t know better, I would be certain that this is a parody of Israel’s pseudo-intellectual judicial overreach.

The bottom line is that Rubinstein invents, out of whole cloth, a particular theory of “primary arrangements,” on which he builds an overwrought structure by interweaving all sorts of statements from previous legal rulings, supposedly leading to the conclusion that the Gas Deal requires Knesset legislation. He then invalidates the Gas Deal in the name of this unruly jumble. Not only does it fail to hold water; it also leaks a lot of gas. To imitate His Honor’s troublingly bombastic habit of citing Jewish sources apropos of nothing, this is a rhetorical mash-up of statements that, in the final analysis, “stinks” (Rashi, Genesis 27:35).

These are serious allegations, and anyone who has not read the entire decision might perhaps think this excessive. Unfortunately, these charges reflect the truth, and anyone who is worried about the situation and disturbed by the arguments set forth below should carefully read the entire decision.

Let us begin with Rubinstein’s treatment of the political context of the case. In one of his first sentences, he makes it clear that the legal deliberations are necessary because the issue is subject to public dispute. “Had we been fortunate, basic unanimity would have been reached on this subject,” he writes, but “since we were not so fortunate, we must make a decision.” This is an incomprehensible argument. Firstly, every time the Court decides to summarily dismiss a petition, there was no unanimity, either—after all, someone petitioned the Court. Secondly, what is the connection between “unanimity” and the legality of the gas deal? And what if there was “unanimity” for a decision that contradicted a written law? Would Rubinstein approve it?

But this is just the beginning. On the one hand, Rubinstein knows very well that everything here is political: “The court must decide on a dispute and a controversy the likes of which it is difficult to recall, regarding an issue that, prima facie, is fundamentally economic,” he writes. He notes that he is aware “that some of the petitions. . . are petitions from the opposition party, and contain an element of political browbeating.” On the other hand, he believes that he can achieve neutrality, that is, “address the subjects in their legal context and on their merits, without ‘background noise.’” On the third hand, in the conclusion he states that “we should ascribe significance to the disagreement that the subject arouses among large segments of the public. Thousands have packed the streets to voice protest against the plan as it was being formulated,” and therefore, the Deal must be passed in the Knesset and not only in the Cabinet.

So tell us: Is this “background noise” that should be ignored, or should we actually “ascribe significance” to it and thus send the deal to the Knesset? I guess it’s tough to be too neutral when Guy Rolnik organizes demonstrations and Shelly Yachimovich writes about them on Facebook. In any case, in my humble opinion, the claim that we should ascribe significance to demonstrations by “thousands” and even mention them in a precedent-setting decision by the Supreme Court is outrageous. Even from a public point of view, those thousands have no standing against the millions who voted in elections and determined the composition of the current government, let alone from a legal point of view. Rubinstein’s claim is anti-democratic in that it undermines the results of the elections in setting policy.

Just background noise. A demonstration against the gas deal. Photo: Tomer Neuberg / Flash 90
Just background noise. A demonstration against the gas deal. Photo: Tomer Neuberg / Flash 90

A Message from the Third World

And now, to the crux of the matter. In Rubinstein’s view, the central issue is: “The limits of governmental authority in a democracy, and the extent to which its residual power can be extended when the legislature has not authorized it explicitly, and when its primary economic significance is so enormous. This is the legal question on which we are ultimately focusing.”

This, of course, is a question that has no answer. No one knows when the economic significance is truly “enormous,” or what the boundaries of “residual power” are, or how we can determine whether the legislature has implicitly “authorized” the government to do all kinds of things. These are fuzzy issues, with many arguments on either side, and with no decisive legal argumentation.

This is precisely why it would have been better not to deliberate this issue at all and to leave the (legislative) Knesset and the executive government in charge of the known realms of their responsibility. But the reader will surely agree that once the issues are under deliberation, they should at least be deliberated with the complexity and forthrightness suited to an issue of this kind. We would have expected to see in-depth discussions of a long list of precedents, keen distinctions concerning the relationship between the government and the Knesset, and a serious treatment of the roots and principles of democratic government, all backed up by the appropriate solid material: court decisions from Israel and abroad; a discussion of procedures for regulating the energy sector in Western countries; and development of clear principles and rules, by whose light the economy, the government, and the Knesset can act later on.

This is not what Rubinstein did. Like a bulldozer, he carved up the bedrock of Israeli democracy, scattering the dust of peculiar and detached citations in every direction, using irrelevant and occasionally incomprehensible arguments and references, and sowing confusion among his readers. All this unprecedented commotion ultimately connects to the goal to which he strives at all costs: limiting the government’s right to pass the Gas Deal.

The reader’s thirst for knowledge remains unquenched. At no point is it made clear which legal or constitutional principle Rubinstein is acting under, nor why or on what basis the Supreme Court decided that the government is too strong and the Knesset—which had no idea of its weakness—is so weak that the court must bend all the laws to assist it.

Ultimately, Rubinstein establishes two key things in his opinion: 1. The Gas Deal’s regulatory stability clauses, in which the government pledged not to make changes to the agreement for ten years, are invalid; 2. The entire agreement, including the issues of taxation, price controls, allocation of concessions, etc., must undergo a process of primary legislation in the Knesset. A majority of the justices disagreed with Rubinstein’s second contention, and in the final verdict, the Deal was invalidated because of the stability clause, but there is no need for primary legislation of the remaining clauses.

However, to use Rubinstein’s tiring Talmudic language, let us discuss “first things first and last things last” (Mishnah Avot 5:7, in case you were wondering).

An Island of Instability

On the issue of regulatory stability, the deliberations focus on the question whether the current government can “tie the hands” of the next government. After a lengthy introduction and a review of the history of administrative law, Rubinstein arrives at the main issue—the limits of the government’s obligation—and his arguments are based on hardly anything.

The only evidence Rubinstein adduces is the opinion of Deputy Attorney General Avi Licht—which states that stability clauses of this kind are customary in the Third World but not in the West, because this method “expresses a lack of confidence in the democratic system” in those countries—and statements by the legal adviser of the Knesset Economic Affairs Committee—which he quotes at great length, almost an entire page in the ruling. A bit absurd, no? Let’s put aside for a moment the political context of the legal adviser’s position on the committee headed by MK Eitan Cabel. After all, it is the job of legal advisers to guess what the Supreme Court will say or whether the law can withstand a challenge in the Supreme Court. The fact that Rubinstein cites them in a ruling is an endless logical loop. An error message. Confused? We are too, and so, apparently, is Rubinstein.

The rest of Rubinstein’s discussion is based mainly on personal insights and wordplays. The government is fully authorized “to make and execute decisions,” but “the government is not authorized to decide not to decide.” How witty (though the wit does not mask the fact that the argument is simply wrong). More than a page is devoted to a theoretical discussion of the possibility that future governments and Knessets will revoke the agreement, of coalition discipline, of the implications of the opposition by the Ministerial Committee on Legislation, and what not. This is the sort of worthless legal speculation in which any political wheeler-dealer could engage, although we should admit that Rubinstein has a qualitative advantage: He knows how to quote Levi Eshkol (“I promised, but I didn’t promise to keep my promise”) with the requisite scholarly citation, and the Kuzari (“Your motives are worthy but your deeds are not”). How persuasive.

In any case, these wonderful theoretical musings have some minor flaws: for example, the small fact that for decades, Israeli governments—like all governments in the world—regularly made long-term economic decisions. Rubinstein contends with three such precedents: the excavation of the Carmel Tunnels, which was done through a contract with a private company; the government decision on lowering the cost of living; and the government decision to conserve the Dead Sea. In each of these cases, the government made decisions that tied the hands of future governments, just as with the Gas Deal.

Pay attention to what Rubinstein has to say: The Carmel tunnels are not relevant to the “natural gas sector as a whole” because of differences “in the sums of money at stake and because gas is a non-renewable natural resource.” These are, in fact, differences, but are they relevant from a legal standpoint? Does the law state that the government can execute agreements involving sums up to a certain amount, or only for renewable resources? No. These differences are simply irrelevant to the distinction that Rubinstein is attempting to make. In simple language, we call such arguments “excuses.”

But the big blow is still ahead of us. Rubinstein claims that “the two government decisions have not undergone judicial review, and hence, the fact that they were made in the past by the government of Israel is not sufficient to render the stability clause of the current agreement acceptable.” In other words, according to Rubinstein, Israel’s political and governmental history has no significance. Only what is examined by the court is lawful, and the rest has the status of perhaps-legal-perhaps-should-be-struck-down. The fact that Israeli governments have made similar decisions for many years does not interest him, perhaps because then there was no political “background noise,” and so the matter was not examined in a court. The reign of the absurd.

The truth is that if Rubinstein had given governmental history a bit more respect, he would have acknowledged that this governmental precedent establishes an important presumption, which transfers to the court the burden of proving the need for intervention. Why? Because in the past, no one in the Knesset, in society, or among those officials concerned with the matter thought that there was a problem. That is strong evidence: This is how governments operated, and no one was harmed and no one was complaining, either in the Knesset or among legal advisers or anyone else. But from Rubinstein’s point of view, only what the Court decides truly exists. The Hall of Justice is apparently the source of all existence.

Rubinstein’s argument is absurd in another sense. The deals that were not examined in court could now be considered illegal, even though they are already in effect. If they were made in the same way as the Gas Deal, and the Gas Deal is illegal, then we have a serious problem. This is a Pandora’s box, and Rubinstein apparently does not even realize that he is opening it. But the absurdity of this strange statement does not end here. It also follows from this that if a petition had been submitted to the High Court against, for example, the Dead Sea rehabilitation deal, and a decision that binds the government’s hands had been approved by the High Court of Justice (allow me to guess that in that case, where the Dead Sea Works are the “bad guys,” this would have happened), then according to Rubinstein’s logic, the Gas Deal, with its demands for stability, should have been accepted now (allow me to guess that this would not have happened). Have we already said that this sounds like excuses?

Ultimately, Rubinstein fails entirely in his duty to persuade that the Gas Deal involves a precedent that deserves to be struck down. In truth, given his reasoning and this caliber of logic and argumentation emanating from the bench of the Supreme Court, it is no wonder that global companies are demanding regulatory stability clauses that suit the Third World.

“The more books, the more worry,” The Sages, Ibid. Photo: Miriam Elster / Flash 90
“The more books, the more worry,” The Sages, Ibid. Photo: Miriam Elster / Flash 90

The Separation of Powers

The next part of the ruling, which is also the more fundamental, asserts that because of the Gas Deal’s complexity and scope, it exceeds the government’s authority, and therefore, it must go through a full, orderly process of legislation in the Knesset.

In this section, there is no longer even a semblance of a legal discussion. No less than five pages are devoted to a bizarre and disjointed series of abstract theoretical musings on the foundations of democracy. Rubinstein collects quotations from everything he can lay his hands on, mixing features of Israeli politics with questions of forms of government and democracy. An Israeli salad, diced and dressed of course, with quotes and citations that have no connection to the issue at hand.

Rubinstein’s main message is clear: If the government is permitted to pass the Gas Deal, then it is too strong. What is the basis for this notion? Nothing from the realm of law. His arguments come from two disciplines: political philosophy on the one hand, and various assumptions he makes about the role of the modern state, on the other.

Thus, he devotes a lengthy discussion to the social contract theorists, who were, he says, “the key thinkers in the history of modern political philosophy” and thus supreme authorities. This is a pathetic claim, but even more pathetic is the discussion itself, which seems like it was copied from the homework of a high school student who mainly uses Wikipedia or a civics textbook. It is a hodgepodge of claims that lead nowhere, and certainly not to the “theoretical basis for the source and limitations of the government’s power.” Rousseau said this, Locke said that, and Hobbes said the other thing—terribly simplistic, shorthand arguments that do not constitute a discussion and do not add anything to the ruling.

I will illustrate by means of an example. Rubinstein wishes to say that there is never a complete separation of powers and to insert his opinion that the government is actually too strong:

The principle of separation of powers, which is the foundation of our democratic government: the legislature will be responsible for legislation, the government for executing the law, and the court for scrutinizing administrative actions. However,

the phrase ‘separation of powers’ is not indicative of its entire content. The essence of this principle is not in its being a ‘separation of powers’—a separation between branches of government for the sake of separation—but in its being the distribution of powers and authorities among different and separate branches. It is fundamental that the legislature legislates, and only legislates: it shall not execute and shall not judge; the executive branch shall execute, not legislate, and not judge; and the judicial branch shall judge, not legislate or execute.

In practice, the principle of separation of powers is not implemented hermetically, if only for practical reasons. Thus has it been since ancient times in various countries, and when Montesquieu’s The Spirit of Laws was written in 1748, there was no complete separation, needless to say. However, the heart of the principle of separation, which implies a balance between “kingship and priesthood,” to borrow a term from Jewish sources (see, for example, Mishnah Avot 6:5) remains in effect, since if it does not, the government, which in practice is the strongest of the branches in day-to-day terms, will be able to do as it wishes, and what will become of democracy? Although in terms of the outstanding book, The Federalist Papers, there is equality between the executive branch (which holds the sword) and the legislative branch (which holds the purse), and to complete the picture, we note that according to this book, the judiciary branch is the weakest of the three in terms of the “purse and the sword,” nevertheless, in lived reality, the great power of the government is clear; see also paragraph 129 below. The Yiddish comedians and satirists Dzigan and Schumacher, in one of their skits, explain the difference between democracy and dictatorship: Dictatorship is when the people cannot say anything and the government does what it wants, and democracy is when the people can say what they want, and the government still does what it wants.

Here is an exercise for the reader: Who can explain how Montesquieu and The Federalist Papers have helped here? Presumably, they would actually have argued against Rubinstein, but he does not argue back. The only thing he has to say is that “in lived reality” the power of the government is “great” (at best this is his personal opinion) and that “in practice [it] is the strongest of the branches in day-to-day terms” (another personal opinion). He also throws into the mix “kingship and priesthood” from a well-known classical rabbinic text, and a “needless to say.” In the end, he does something that humanity has not yet invented a word for: using unknown comedians as a basis for limiting government in a precedent-setting ruling.

Did any readers believe that this is how Rubinstein’s landmark ruling, which limits the power of the government, might look? If this were a paper written by student for a freshman poli-sci class, what grade would you give it?

And what about the role of the state? Here, too, all that Rubinstein has to offer is dogma and assertions that he deems self-evident. His starting assumption is that the state is obligated “to serve the public—to ensure peace and order, to provide essential services, to protect the dignity and freedom of every citizen, to do social justice.” He explains that “the role of the state in the modern period…has changed considerably, and it spreads its net over many aspects of daily life, including, not least, the economic and social arenas.” He then adds that Israel is characterized by “a relatively high level of involvement by the state in general and the government in particular in the economy and society.”

In these statements about the centrality of the philosophical school he presents (the social contract theorists) and the roles of the modern state, Rubinstein sees the basis for striking down the gas agreement. Does he not know that his assertions are all dubious? Not only are his claims themselves intellectually and philosophically controversial—there are social contract theorists, and arrayed against them are a bounty of no less important and influential thinkers who have argued against the contract approach and in favor of completely different concepts of freedom, society, state, and government—but, and this is the crux of the matter, the role of the state, and the way in which various parties view it and the relationship between it and society, constitute an important part of the voter’s discretion on election day.

One gets the impression that Rubinstein does not even understand this basic fact, namely, that voters are not a pack of ignoramuses who vote only on the basis of immediate considerations; they vote also on the basis of considerations of the role of the state, governance, the status of the various branches of government, and more. From Rubinstein’s point of view, his philosophical and normative arguments constitute a worthy justification for judicial intervention in and of themselves, whereas the voter has no connection to this issue whatsoever. For him, this is not a democratic issue, but a meta-democratic issue; it is not subject to a vote by the public, but is a basic, indisputable truth that is entrusted to him.

Let’s put it this way: What Rubinstein unconsciously believes to be a binding normative framework in every democracy is actually part of the democratic game itself. Rubinstein is simply taking sides. However, instead of acknowledging this, he declares, with unfounded intellectual pretension and boundless political and legal audacity, that his side in the debate dictates the rules of the game for everyone. The public, the government, and the Knesset have no standing on these issues. “Democracy” is what they call this over there in the Supreme Court.

In this sense, Rubinstein’s ruling is fundamentally political (even if he is entirely unaware of this). Striking down the Gas Deal, which was intended to “create balance” between the government and the public “in light of the presence of market failures and social justifications,” is nothing more than a fiction that exists in the imaginary world of progressive jurists, based on several interesting thinkers with lovely but theories that are highly controversial in the Western world, and which have no binding legal, political, philosophical, or political-scientific justification.

Of course, we cannot have a court ruling without the magic words “social justice.” But here, too, Rubinstein outdoes himself. While he admits that there is no harm to individual rights or minority rights here, that does not really interest him. As far as he is concerned, the government lacks the authority to make a decision on the gas issue “since our interest is in the collective rights of the public”—as if it is not the public that appointed this government. Elsewhere he states that “in the regulation of a finite public resource, there are weighty considerations of public and economic policy and questions of ‘distributive justice,’” and he quotes what he wrote in another verdict, that “in the matter before us there are collective public rights.” But the public, exercising its rights, elected this government in order for it to implement this policy. And by the way, Rubinstein’s opinion was heard very well then—after all, he also placed an envelope in the ballot box, thereby expressing his opinions on “distributive justice.”

Ultimately, after all the simplistic appeals to social contract philosophers, the abstract opinions on the role of the state, and so forth, Rubinstein’s claim rings hollow given the reality on the ground. He concedes that many sectors of the economy have undergone comprehensive reforms in recent years without legislation, completely overhauling entire markets. In his verdict he mentions telecommunications, the retail sector, food, and banking.

Why, then, is natural gas different? In the best legal tradition, Rubinstein attempts to find a distinction between the gas market and everything else. But from every logical point of view, here, too, he fails entirely. Beyond talk of “distributive” and “inter-generational justice,” there is no systematic argument explaining how gas is different from other sectors of the economy. Why isn’t whatever is good for the cellular market also good for the energy market? Why is it that a government that can make comprehensive agreements in almost every sector of the economy cannot also regulate the gas market?

It isn’t that Rubinstein doesn’t try; it’s just that he fails. He makes his best intellectual effort to collect various rulings, but he cannot avoid a frightening degree of capriciousness. When is the government obligated to pass a legislative reform? “We should consider the extent of the agreement’s influence on the public; the scope of the harm to individual rights entailed in the agreement; its financial ramifications; the urgency of resolving the matter; the complexity and professional knowledge required; and more.”

Did you understand this? This is equivalent of a bureaucracy issuing a tender whose winner has been decided in advance. This arbitrary collection of rulings marks the target: the Gas Deal. A truly targeted ruling. But even so it is irrelevant. For example, are communications reforms not on a massive economic scale? Does it not involve individual rights? Is it not urgent? Is it not complex? Does it not require professional knowledge? With Rubinstein’s grocery list, one can justify the transfer of any important government decision to the Knesset.

Ultimately, absent any substantive justification beyond the scattered verbiage and citation of vague sources, what remains is largely the sense that the Supreme Court has declared war on the executive branch and is attempting to neutralize its powers—in a clearly executive arena like the gas market—and transfer them to the Knesset. Since the reasoning is so completely unsound, this does serious damage to the separation of powers, to governance, and to Israeli sovereignty. Judging from the ruling’s opaque criteria and lack of logical order, there is no reason to have specific legislation for the gas industry and not, for example, for declaring war or for the government to attempt to reduce the cost of living.

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Conspiracies and Slander

It is difficult to avoid the impression that Rubinstein himself feels uncomfortable with this dubious ruling. After all, his expertise in political science is clearly very minor, and any law student would attest, after two minutes of reading, that Rubinstein’s analytical ability pales in comparison to that of Aharon Barak, whose legacy he is attempting to implement. Perhaps that is why his ruling includes insinuations and speculations that might be appropriate in a tabloid, but that have no place in a Supreme Court verdict.

Again, a serious allegation, so again, let us illustrate. As you will recall, the Knesset passed the Gas Deal last September, and the Knesset plenum approved the government’s decision to regulate the gas market. The government claimed that “the Knesset’s support for this process… strengthens the democratic legitimacy of the government decision,” notes Rubinstein. However, he adds in his colorful language, which reveals much about his intentions, that “this will not be the source of legal salvation for the state.” Why not? “A general vote on the ‘finished product’ is not like a full legislative process with all its stages.”

Here His Honor begins to tell a tale of conspiracy theories bordering on mild paranoia. In contrast to a government decision, which is apparently made in darkness, “the legislative process is transparent and in full view of the public eye,” says the Supreme Court justice, elaborating: “The legislative process also limits the maneuverability of organized interest groups in their attempt to influence the administrative authority to make decisions that will serve them.”

You read this right. The Vice President of the Supreme Court is implicitly accusing the government of Israel of making decisions on the gas issue on the basis of inappropriate considerations. This is not a slip of the tongue. Rubinstein repeats these insinuations even more sharply later on, noting that without primary legislation, an opening “could be created… for institutional or personal corruption.” Furthermore, after reviewing the lengthy process that led to the agreement, which included the resignation of senior officials, the transfer of the Economy Minister’s powers to Prime Minister Netanyahu, and other moves, he concludes: “The cumulative circumstances raise questions and illustrate that the Knesset needs to exercise more oversight.”

This is a collection of serious, problematic, and outrageous insinuations, tacit defamation, and complete deviation from authority. If Rubinstein believes that there was any fault with the government’s conduct, if he has even the slightest suspicion that this is “institutional or personal” corruption, His Honor is invited to inform the police or the attorney general (I’m sure that he has the phone number). If he has no such concrete suspicion and no evidence that the law has been broken, let him not intervene in the actions of the executive branch. A Supreme Court ruling is not an editorial in The Marker or Yediot Ahronot, and it must not become a caricature that makes a mockery of the rule of law and the elected government.

In fact, in all the rationales for judicial intervention contained in the constitutions of democratic countries, including the progressive constitution invented by Aharon Barak, there is no rationale like the one invented by Rubinstein: a judge’s baseless suspicious of conspiracy.

We could mention many other problematic features of the ruling crafted by the present Vice President of the Supreme Court, some comic and some tragic. Thus, for example, an entire page is devoted to tracing the origin of the Modern Hebrew word for petroleum, “neft” (like the English “naphtha,” it derives from Ancient Persian), including its iterations in rabbinic sources and medieval commentary. Another page is devoted to anecdotes from seventeenth-century Poland about the Jewish communal taxation. Rubinstein mentions that Jewish civil law recognizes security considerations, and he cites an extensive bibliography on desecrating the Sabbath to save a life, while indicating that the law shows no such flexibility for monetary matters. At the start of the discussion of commercial restraints, he mentions the Mesopotamian shopkeepers who would “hand out nuts and roasted grains to children” and laws about establishing competing synagogues across from each other. Israeli Supreme Court rulings never sounded so much like class prepared by a young yeshiva student who has just learned to use the Talmudic Encyclopedia (which is frequently explicitly cited here as a source).

On the tragic side, we can list a host of political insinuations and arguments. Rubinstein writes that, contrary to the state’s claim, it will not be very difficult to pass the Gas Deal in the Knesset (“if the agreement is good for the country, and those who voted for it in the Knesset are consistent, it is not farfetched”). He refers to his personal experience as cabinet secretary (“I sat at the cabinet table for nearly fifteen years”). He states that “the Knesset is not the government’s ‘cheerleading squad’” and that the government’s statements are not like divine commandments, which, according to a verse in Exodus, must be obeyed even when they are not understood, “even if, in practical terms, the government has a majority in the Knesset.” He also speaks about the circumstances “surrounding acceptance of the agreement.”

This is disturbing because the cumulative impression is that for Rubinstein, Israel’s energy future is a matter for puns and witty allusions. The flowery sophistry, the cynicism, the insinuations, and the references to comedians, all create an atmosphere of frivolity, as if for him, the verdict is an intellectual game and not a fateful decision for the future of Israel and its citizens.

In a word, putting aside the inferior, flowery style, it’s a disgrace. A disgrace that things of this kind are written in such an important and precedent-setting ruling, and that this is the level of discussion in the Supreme Court vis-à-vis the government, on such a fundamental strategic issue as the Gas Deal, which the Supreme Court has turned into a discussion of governmental arrangements and the separation of powers. To quote Maimonides:

Everything depends on the character of the person who causes the embarrassment and that of the one who is embarrassed. For the embarrassment caused by a child cannot be compared to the embarrassment caused by a respected adult, since the embarrassment caused by the ignoble one is greater.” (Mishneh Torah, Laws of Bodily Injury 3:1)

Knowing How to Choose Judges

As we ponder this issue, we must try to understand what happened here. How did we get to the point where a Supreme Court verdict looks like this? How is it that Aharon Barak wrote verdicts that infuriated the public endlessly, yet we knew that we had to take them seriously—legally, analytically, and intellectually—while Rubinstein and others write verdicts that look like an embarrassing and unwitting parody of judicial activism?

The answer to this question should convey an important lesson. It may be that the enormous difference stems from the fact that Barak came to the political system as a scholarly jurist with broad knowledge and intellectual breadth, having made important contributions to research and academic literature, whereas Rubinstein and his ilk arrived after spending most of their careers in the political system, in which they became familiar with the law and the needs of the branches of government, but not much else.

In a Court that is not activist, this would not matter so much. There is no great difference between a justice such as Barak and a justice such as Rubinstein as long as they are engaging in purely legal issues. However, since the Court has become activist and pretends to address the foundations of the system and the philosophy of democracy to support rulings and change the structure of government in Israel, the fundamental difference between them has been disclosed. Despite all the justified criticism of Aharon Barak, at least he was orderly, meticulous, and backed up his claims. He knew how to present and elucidate abstract ideas on governmental arrangements. In contrast, the legal advisers who come from the world of politics are fish out of water in this arena.

In this respect, Rubinstein, like the other justices who have not undergone the right training, is not an heir to Barak’s legacy. He is on an intellectual playing field for which no one has prepared him. Today, activism has fallen into the hands of those who were government legal officials, who suddenly must decide on the differences between Montesquieu and Hobbes and Hamilton in order to know what to do about the Gas Deal. This would be funny if it were not so pitiful.

Woe to the Branch of Government That Looks Like This

In conclusion, the ruling that invalidates the Gas Deal does not convince anyone who was not already convinced (that is, those who experience no schadenfreude over the misfortune that has befallen the government and the country). The ruling is full of baseless claims, a hodgepodge that does not crystalize into a legal-constitutional principle even on the most basic level. It fails to provide even one orderly, rational explanation for the decision to strike down the deal and does not make anything clear about what is permitted and prohibited for the government generally, beyond the specific agreement. This is not what a precedent-setting verdict that decides the fate of governmental arrangements should look like.

Rubinstein himself almost admits this in several sentences that themselves lack in self-awareness: “It may be that vis-à-vis any chapter in the agreement, the claim could be made that there is no need for primary legislation,” he writes, “but it seems to me that the main thing is the totality, and it appears that the whole is greater than the sum of its parts.” Unfortunately, we cannot say the same about this ruling.

The bottom line is that in the absence of orderly explanations, and against the background of a collection of arbitrary decisions, one gets the impression that the Supreme Court struck down the gas deal for one reason only: because it could. This is not how democracy looks, this is not how separation of powers looks, and none of the cheerleading squad for Rubinstein and Co. would have been prepared to accept such conduct from any other branch of the government.

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1 comments on the article

  1. I would go further and search for a root cause. I doubt “Because he can” as the author suggested is the root of it.

    Some land for that reason institute judicial accountability commissions to explore affecting factors to make sure there is no for example an appearance of a corrupting influence or a conflict of interests.