Question

Attached is the Justice Minister’s speech.
Worth reading:

Speech by Justice Minister Ayelet Shaked at the 2019 annual conference of the Public Law Association
President of the Supreme Court, Justice Esther Hayut;
Attorney General Avichai Mandelblit;
 
“Every time judicial decisions are reexamined by an additional authority, a certain percentage of them are reversed.
This fact reflects the natural difference between the viewpoints of different human panels.
The reversal of a judicial decision by a judicial instance higher than it is no guarantee that justice has been served;
for —
there is no doubt whatsoever that if there were a higher instance than the Supreme Court —
a significant portion of its rulings would be reversed.
The ruling of the Supreme Court justices is final not because it cannot contain error;
it cannot contain error because it is final.”
**
This profound and modest insight, taken from the decision in Brown v. Allen (from 1953), was written by Robert Jackson, who served as a justice of the U.S. Supreme Court in the 1940s and 1950s.
The aspiration to absolute justice, according to Justice Jackson, will always be realized within deficient and limited human frameworks. A different group of decision-makers may hold a different conception of justice, and therefore reach a different legal result.
The court cannot guarantee the society in which it operates absolute justice. Of course it strives for that, but in practice it provides nothing more than a final decision.
This statement does not express moral despair. It expresses judicial modesty.
It is a view very reminiscent of the author of Psalms, who saw truth (legal truth) as something that grows from the earth — in a very specific place and time — whereas justice is something else entirely, allowing us an objective point of view.
“Truth shall spring from the earth, and righteousness shall look down from heaven” — we lift our eyes toward justice, but we cannot always attain it absolutely.
**
So what, after all, remains of the court’s prestige once we have agreed that we will not agree on everything? That not every judgment issued by the justices necessarily expresses, in our view, absolute justice; that it is legitimate for a different panel of judges to reach a different judicial outcome.
What remains is the fact that the Supreme Court is the body that decides legal disputes between individuals in society in a final way. It and no other. Hence its enormous importance.
And precisely because of that —
for generations, the legal community has been the court’s loyal defender. This community, made up of people like you — senior academics, former judges, and veteran lawyers — has always been there to fortify the standing of the court.
This community, just like Justice Jackson, explained to us again and again (in the past) that a legal ruling by the Supreme Court is no guarantee of justice. That we are not even required to agree with it, and nevertheless — it is final and absolute.
And precisely for that reason we must treat it with respect.
And above all, the community explained to us that we have no other court and that we are duty-bound to safeguard it with the utmost vigilance.
**
But then the plot took a turn. Between February 22, 2017 and February 22, 2018, the Judicial Selection Committee, which I chair, chose six justices for the Supreme Court.
Since then, and it is very hard not to notice it, something in the legal community’s operating system has fundamentally changed.
This community — a mixed and opinionated one, which never missed an opportunity to defend the court, both against reckless criticism and even when the criticism was entirely legitimate — no longer responds.
The wild attacks and sharp criticism we have all encountered recently, the harsh statements and exceptional intensity of expression, are being met by a silent legal community.
It is as if the matter no longer concerns it.
The rulings in the matters of Mitzpe Kramim and Khan al-Ahmar, as well as the decision regarding the evacuation of squatters in the village of Silwan, and to my satisfaction many more rulings that went in a direction I believe in very strongly, received harsh criticism using expressions the likes of which had never been used before.
A former member of Knesset stated that this was “submissive and cowardly judging,” and described one of the decisions as a “disgraceful and callous decision.”
And the legal community was silent and did not respond.
Another member of Knesset, one still serving, joined in and declared that “the High Court’s decision is a destructive step,” and said that “this is a third transfer.”
And the legal community was mute.
Even when that elected official called to fight the decision and announced that “we must continue the struggle by every means at our disposal” —
not a soul chirped in objection.
I have a fairly strong feeling that quite a few members of the legal community read the newspaper Haaretz, and yet when its editorial declared that “the court chose to join a system based on discrimination and exploitation”, and stated that “the High Court must recalculate its route” —
everything went on as usual. One silence joined a second silence, and the second a third and a fourth.
Even when one jurist claimed that “the judges are partners to a war crime” —
no one from the legal community opened his mouth to defend the Supreme Court. It did not cause anyone to do what this community knows so well how to do —
defend the court. To tell us all that whether it was right or wrong — it is the Supreme Court, and we have no other.
**
These attacks on the Supreme Court, and many others in recent times, were of course only the preliminary teaser (the opening of the introduction) to the extraordinary attacks on Justice Alex Stein.
What did they not say about his ruling in the matter of property division between spouses who had decided to divorce…
The editorial in Haaretz called it “a retreat into a primitive world”; another article said these were “dark days”.
They said of him that he used violence against women, and that what begins with the division of property ends in murder.
A member of Knesset (a third one) mocked Justice Stein and compared him to a product ordered on eBay that, upon arriving בארץ, turns out to be defective.
These are only a few examples. In fact, the wild attacks on Justice Stein have never ceased.
The attacks continue, but the community is silent.
It is mute.
As if the matter does not concern it. Has everyone joined the monastery of silence?
**
The court has always known how to deal with criticism directed at it.
It stood before the wind, and it stood before the noise.
It stood before the fire, and its flames never harmed it.
But it will find it very hard to withstand this silence.
The court will not be able to withstand the silence of those who defended its independence for many years; with long and precise texts, with fiery speeches, by coming to the Knesset and even going out into the streets whenever one initiative or another did not seem right to them.
After all, if there is one thing this community specializes in — it is talking! But in recent months it has withdrawn into its silence.
And this quiet harms the court.
Silence from those who until recently were the court’s verbal defenders undermines its very foundations.
And a suspicion steals into the heart.
Perhaps the defense of the court was never based on sincere faith in its independence;
perhaps there is an explanation in the ideological sphere for the silence of those who constantly served as spokespeople for the court’s defense;
perhaps it is no accident that those who repeatedly made clear how exalted and supreme its status is, and that no criticism of it is acceptable (even when it erred), are silent today.
Is the independence of this institution important regardless of one legal outcome or another, but only so long as that legal outcome echoes a very particular creed?
**
Friends,
this silence is deafening.
It is shouting, even without words.
It is shouting a hard and troubling message that everyone can see.
It makes clear that the defense of the court was not very sincere.
It emphasizes that the principle of judicial independence never stood on its own; that it always rested on ideological partnership with the products of the court’s rulings, and not on commitment to the very existence of the institution; on identification with this ruling or that one, and not with the need for an independent and courageous court.
The moment identification with the content of the rulings disappeared — support for the importance of the court’s independence disappeared as well.
**
The modest message of Justice Jackson, with whose words I opened — a message that proceeds from the assumption that different human panels produce different legal truth, that the standing of the court should not derive from its being just but from its being the final decider — that message
has disappeared in the past two years into the silence.
And the truth is —
that this was, this could have been, a moment of mercy and favor.
This was, this could have been, the finest hour of the court’s defenders;
the precise moment when everyone would have been convinced beyond doubt that the legal community that always defended the court truly and sincerely believed in judicial independence;
that it truly and sincerely held that the court’s elevated status should not derive from the degree of agreement with the particular legal line it had set.
This could have been the legal community’s finest hour.
Personally, I expected to hear from you sentences like —
“I completely disagreed with this ruling, and I will explain why, but in the end we have one court, and we will safeguard it and its independence with the utmost vigilance.”
That simple message — one that I myself conveyed on more than one occasion — I did not hear from the legal community.
That simple message would have proven that those who spoke for years about the importance of the court’s independence truly believed in it, and that it was not a “love dependent on something” of which, as is well known:
when the thing ceases — the love ceases.
There was a real opportunity here to prove that belief in judicial independence is a Voltaire-type belief —
a stubborn struggle to make sure that even someone whose opinion you disagree with can express it fully; that the court is independent even when it errs.
But it simply did not happen.
Instead, we got a fierce and harsh struggle, wounding and personal, against judges who dared to deviate from the choir’s line.
**
A year after Justice Jackson published in the Brown decision the words with which I opened, and shortly before his death (in 1954), another judgment was handed down dealing with another person named Brown. This was the famous Brown case. And this time it was Brown v. Board of Education.
The ruling we all know prohibited racial segregation in educational institutions. Jackson was one of the nine justices who held that segregation was unconstitutional, and all the rest is —
history.
But not many people know that Jackson was initially among the five justices who intended to hold in the majority opinion that racial segregation was permitted and did not contradict the American Constitution.
Only the death of Chief Justice Fred Vinson, which occurred at that time, and his replacement by Chief Justice Earl Warren (the liberal) brought about a reversal in the justices’ positions.
The new dynamic that emerged shaped a new judicial position, and the court in its renewed composition held — and this time unanimously — that racial segregation was forbidden.
Jackson, who only a year earlier had explained that “the natural difference between the viewpoints of different human panels” is what gives rise to a different legal result; who until the appointment of Earl Warren thought that racial segregation fully met constitutional requirements —
did not settle merely for retracting his initial position.
Jackson came to the courtroom directly from the hospital where he was admitted, in order to express his full support for the ruling in whose writing he took part. He saw the ruling as a legal milestone, despite the fact that a year earlier he had intended to rule the opposite way.
In his writing and in his actions he demonstrated that justice is a complex matter, and that a judicial decision is something that can forbid or permit the exact same matter. But once the ruling has been issued — that is the law.
**
I expect the legal community, whose honored members are present in this hall, to act exactly like Jackson.
Not, Heaven forbid, to refrain from criticism.
I am probably among the last people one could say refrain from criticism where it is called for.
I ask to see this community mobilize, exactly as it knows how to mobilize in other situations, to defend the standing of the court when criticism is hurled at it in a way that undermines its foundations.
The principle of judicial independence cannot be a principle used in a selective and tactical way. If this principle is correct — and I believe with all my heart that it is — then it is always correct.
Raise your voices!
Thank you very much.