I think that, as always, the Rabbi’s remark is sharp and thought-provoking, but it does not defeat the argument.

The Rabbi points out that the Supreme Court is not a representative institution; that is, it is an institution that “does not necessarily reflect the distribution of opinions in the public and the prevailing public position (and of course not the position of the legislature either), but is tilted toward the liberal camp.” Indeed, that is exactly the situation, and we also want it to be so. Liberal democracy is based on a division of labor between two different bodies with regard to political decisions, that is, decisions that involve the determination of values and decisions that involve determining how material resources are distributed. On the one hand, there is supposed to be a parliament, a body whose members are elected and act knowing that they are supposed to stand for reelection. Parliament is the body that is supposed to represent sensitively the distribution of views in society. On the other hand, courts are supposed to operate. We understand that state institutions operate within the bounds of a value tradition (mainly a constitutional one), and that the decisions of state authorities have a value dimension. We know that parliaments, because of their representative character, cannot do a sufficiently good job of developing the value dimension of state decisions. Therefore, we appoint a special body that will ensure the preservation of the value dimension of decisions, and the continued development of that dimension. That body is the courts, and first and foremost the Supreme Court. Meaning: a court is a body that is not supposed to sensitively represent the distribution of views in society, but rather is supposed to ensure that the values underlying the society’s politics are preserved, and even developed. In a liberal democracy such as Israel, these are liberal values. Indeed, from its very first day the Court worked to entrench the liberal tradition in Israel’s political culture, and that was what we expected of it. (This argument develops things written by Alex Bickel in his great book The Least Dangerous Branch, 1969.) By the way (I have argued this elsewhere), already in the 1950s there was a gap between the values of society and those of the Court: society operated within a collectivist ideology (beneath which there was a fairly extensive practice of individualism; there were quite a few people in 1950s Tel Aviv who lived the “good life,” for example excellent meals based on black-market food, glamorous parties, etc.), which demanded that the individual sacrifice a period of his life, and if necessary even his life, for the sake of the collective enterprise (settlement, immigrant absorption, the army), whereas the Court operated within a liberal tradition that placed the individual above the state and saw the state as an instrument in the hands of the individual. From this standpoint, then, nothing has changed: from the outset there was already a gap between the Supreme Court and society.

If this analysis is correct, then it follows that the Knesset is supposed to represent prevailing positions sensitively, positions that are to a large extent national and religious, whereas the Supreme Court, which of course will give those positions a place in its rulings, will focus on something else: protecting the liberal rights of citizens. From this it follows that originalism will benefit nationalism and religion, and purposive interpretation will benefit liberalism. (A few years after I published “The Decline of Formalism and the Rise of Values in Israeli Law,” I met Moshe Landau at a conference in Jerusalem. He said to me: “You’re the young man who wrote about the decline of formalism? You did a good job understanding our difficulties as a liberal court in the collectivism of the 1950s. But you forgot another important thing, my young sir: first and foremost, we were the Supreme Court of the Jewish people and the Zionist movement!” That’s a story I will never forget. Yes, liberalism—but the framework is still Jewish nationalism.)

I’m not sure I agree that the Court’s bias is blessed and legitimate (those are two different questions, by the way), and in any case it is far from simple in my eyes. I tend to think it is blessed (for the reasons M. gave) but not legitimate (because there is no justification for placing the law in the hands of a few, however right they may be. This is Plato’s rule of the philosophers, especially since the “philosophers” here are really not the ones into whose hands I would entrust these matters even if I were a Platonist).

That said, I did not express an opinion on that question in my remarks. My argument needs only the fact that the Court is indeed biased, and nothing more. What I am claiming is that if that fact is indeed true, then the question in dispute is not originalism versus purposivism as M. presented it, but conservatism versus liberalism. The conservatives’ demands for originalism stem from criticism of the Court’s excessive liberalism, and therefore to argue against them in favor of purposivism and against originalism is beside the point. Moreover, in my estimation M.’s support for the purposive approach is also conditioned on the Court being biased in a liberal direction. So this is not really support for a purposive approach but for liberalism (the “right” purposivism). In short, the discussion is taking place on the wrong plane.
Whether I am on M.’s side or on the side of his opponents, my claim is that the real dispute is the point you raised here—whether this bias is blessed and proper or not—and not the question of the proper legal interpretation (purposivism-originalism).

By the way, this also connects to M.’s criticism of Barak, because Barak too held a purposive rather than originalist approach, and he too did so in the name of liberalism. The criticism of him was also that he treated the law as though it were his own. There I understood that M. shared the criticism (perhaps because of Landau’s remark quoted at the end of his words), whereas here he does not. To my mind this is further proof that the criticism is not connected to originalism versus purposivism but to what the judge actually does: when you don’t like it—you are an originalist, and when you do—you are a purposivist. That, after all, was precisely Landau’s remark that you quoted at the end of your comments: that beyond liberalism there is also some measure of nationalism. Your dispute with the originalist conservatives is over the question of the measure of that nationalism and to what extent it should qualify liberalism. If so, that is the dispute and nothing else, and it has absolutely nothing to do with the question of originalism-purposivism.

It seems to me that the Rabbi is right in writing that even according to M., the main issue is liberalism versus conservatism, not purposivism versus originalism.
It’s also interesting, in my opinion, to think and talk further about the distinction between “blessed” and “legitimate,” and about the bias itself—that is, about the idea of “rule of the philosophers” in certain matters. This intensifies when the matters are value-laden, and it’s a little sad when we know a lot about some of the “philosophers.”
I’m heading off to Eskimo dog sleds…

Just a clarification: the M. at the beginning and the end is not the M. who wrote the blog and with whom I was debating. They are both important jurists.

Let the murderer who was sentenced to life imprisonment come and argue that the purpose of the judge in his ruling was to benefit him and humanity; then the murderer’s purposive interpretation could be that it is better that he not go to prison, and in that way he would benefit himself and the world, all in accordance with purposive judging. He could also persuade the police officers who are taking him to prison, and thereby go free.