In all my years, covering nearly half a century, of studying, practicing, and teaching Judaic and secular law, I have never seen such gutless cowardice and irresponsible “adjudication” as what just has transpired in Israel with the Israeli “Supreme” Court voting 8-7 to ban a Constitutional Amendment regulating them. On top of that, they rule two days later on the Incapacitation Law. All amid an existential war that, if not prosecuted as a nation united, could result kiv’yakhol (as though possible, G-d forbid) in a situation where there would be no country left to implement those corrupt rulings, reached as self-interested parties protecting their own skins . . . and robes.
1. Until Israel adopts a formal Constitution — and good luck with that! — its “Basic Laws” are its Constitution. The “Basic Laws” and all Israeli laws are enacted by the legislature. The legislators comprising the legislature are elected by the public. The voting by the public — the demos (a Greek term, the only Greek thing, except for Greek yogurt, left among the Jews after the Maccabees dispensed with them on Chanukah) — is called “democracy.” Thus, the people select the other people who represent them and enact their laws. If the people like the laws, they reelect the legislators who enacted them. If the people do not like the laws, they throw out the legislators next time around. And if the people do not like the laws but irrationally still reelect the same legislators who just enacted the laws the people hate, then the people are idiots and get what they deserve. One such example: the present residents of Gaza. Another example: the citizens of California. A third example: the Israeli electorate from 1948-1977.
2. Sometimes laws are drafted unclearly. There are many reasons this can happen. Often, the scrivener may be incompetent. Other times, it sounds right at first, but others interpret it otherwise. If you ever have sent a friendly email that was misinterpreted, that is the same as happens with a poorly drafted law. Third scenario: often the drafters overlook an angle of how the words technically can be interpreted or twisted in a way never intended. Ultimately, when one side says: “It means this” and the other says “No it means that,” they then need an honest impartial arbiter to decide what it means and who is right. Yes, the arbiter may decide wrongly, but as long as he or she is honest and fair, that is the best a human system can offer. That arbiter — called a “judge” — should be smart and insightful, but even more importantly: fair. As long as the judge is fair — even if fairly stupid — both sides may grumble, but justice was done. Only when the judge takes sides prejudicially is the result evil.
3. Should judges be elected or appointed? A tricky one. If judges are elected by the demos, that allows the public to participate, rather than leave appointment power to invested or corrupt politicians. But when the public gets to vote on judges, impartiality is jeopardized because such judges want to get reelected. Judges playing to the mob are not ideal. However, if judges are appointed by elites instead of elected by the mob, we find some judges playing to corrupt elites like politicians, the media, and woke celebrities. A puzzlement. The simple solution: seek out only men of valor who fear G-d — men of truth who spurn and hate dishonest gain. That is such a good idea that G-d commanded it to Moshe Rabbeinu (Moses our Teacher). Sh’mot (Exodus) 18:21. Simple: appoint impartial judges who are incorruptible. But not all judges meet that standard..
4. And for how long should judges serve? If until they drop (e.g., Ruth Ginsburg), then they more probably will not tilt their judgments to gain popular favor because they are job-secure like incompetent professors with lifetime tenure. Like diamonds, they are forever. Nevertheless, judges whose terms are permanent may lose touch with the tenor of the times. They may become arrogant and elitist, forget they must remain beyond reproach. A compromise: avoid letting the public vote on judges, but impose term limits to keep them a bit hungry. That can work, as long as the outgoings and the incomings all are men of valor who fear G-d — men of truth who spurn and hate dishonest gain. (For secular judiciaries, the word “men” will include “women.”) But for that, the people appointing them also must be people of valor who fear G-d — people of truth who spurn and hate dishonest gain.
5. Thus Israel’s problem. The underlying system is corrupt. Black robes on ethical torsi connote integrity, honesty, and fairness. But black robes also can be purchased or rented at a Purim costume store. In both Israel and America, the very people who appoint judges include some who are corrupt or who, intending to be honest, nevertheless allow their own hates and prejudices to guide but blind them. An example: Gideon Sa’ar. Sa’ar sincerely sees himself as one of the most honest, honorable men in Israel. In a way he is because, as politicians go, he is not deliberately dishonest. But he has hated Benjamin Netanyahu so deeply for so long that he is blinded by hate, much as bribery blinds. Sh’mot (Exodus) 23:8. Gali Baharav-Miara is the blight that grew out of that gram, that seed of toxic poisonous hate. So every judicial system hovers between honor and corruption.
6. Most Israeli Supreme Court justices hate Orthodox Judaism. Their views on the sanctity of Shabbat, Shabbat observance, institutionally certified kashrut, institutionally organized religious conversion to Judaism, who sits for a rabbinic exam, Jewish values on homosexuality, abortion, and adoption; the sanctity of the Western Wall, and the eternal right of the Jewish people to the Land of Israel (From the River to the Sea all of Israel Must Be Free) — all their jurisprudential views are tainted by their obsessive vitriolic hatred for Orthodox Judaism. They see it as their solemn task to uproot Torah observance from the Land and to secularize Israel into a Hebraiphonic and Hebephrenic Berkeley/ San Francisco.
7. Their problem is that the people of Israel — the demos — do not want San Francisco, just as most Americans do not. They want Israel and Judaism. The majority observe kashrut to one degree or another. They do not frequent restaurants on Tisha B’Av night. Do not march in “Pride Parades” and, instead, are disgusted by what they see of them. They want conversions done right, so they can know whom they and their kids may marry, and kosher converts want people to trust that they now are 100 percent Jewish without the stigma of a dubious heterodox conversion. The majority do not want women rabbis or “Women of the Wall.” They do not want bread in government hospitals on Pesach, nor a “Two-State Solution” other than (i) Israel and (ii) Jordan. They don’t want Utah deciding that homosexual weddings between two Tel Avivans on Zoom can be registered. They don’t want non-Jews from Russia and America registered as “Jews” simply because some heterodox rabbi who cannot read three lines of Gemara, even on Sefaria, says so. So Israel’s judges are challenged that their insulated world views are diametrically opposed to those of the people, the demos who constitute the democracy. Israel’s “Supreme” Court judges are lucky that they do not face popular election, as state court judges do in American states. Rather, they are appointed by elites. In fact — even better for them — they are self-appointed: they appoint each other, hire each other’s kids to be their Supreme Court clerks, and even let a lawyer who practices before them, and therefore needs to ingratiate with them, be among those who pick them.
8. So which suits appointed the current crew of robes? Men of valor who fear G-d — men of truth who spurn and hate dishonest gain? Nope. They appointed themselves. A puzzlement. Yet, as scholars, we shall go back as archaeologists do to find the initial seed that flowered into that poppy field of contemporary judicial corruption. We shall do “a dig,” search for a coin Bar Kochba used to buy a Krembo, find a pottery shard used by King David, to uncover where the first corrupt leftist Israel judge came from: what Darwin might have called HaCholeriyah HaRishon (the First Lowlife). And we find it began under left-wing Labor governments 75 years ago that led progressively to Aharon Barak, an Israeli “chief justice” unacquainted with the Sh’ma prayer, who corrupted further. They institutionalized perpetuity: once appointed, always to be replicated. Likud predecessors — Herut, Gahal — had no real say. Sephardim were shut out by elitist Marxist socialist Ashkenazic Y’fei Nefesh (“Beautiful People”) as Tchatch’kachim (“Greaseballs”). And thus Israel’s judges have self-replicated like amoebae/s.
9. But as the public matured and learned how to read beyond the early years of Sallah Shabbati who was busy voting for all the parties just to get out of the caravan and into that apartment for which he yearned, the public got educated. “And Jeshurun waxed fat” . . . and nevertheless threw out Labor. The blessed Sephardic community, the majority of Israel, led the way. It began in 1977 with Menachem Begin, and it never stopped: Israel moved to the right. Even as there now is a real threat — time will tell — that the present center-right Government will self-destruct and fall after the War, with a more Left-Center Bennett-like government entering briefly, that change would mark a punishment for pursuing 18 years of the “Conceptzia” (the “Concept” that Arab murderers can be bought off with cash and indoor toilets), but not a seismic shift in thinking. (And that mess yet can be salvaged, for another article). Thus, the Israeli “Supreme” Court is out of touch with the public, just as Shikma and her “Brothers in Arms” and Leftist Media will be claiming at their 100,000-per-Saturday demonstrations that the 64-seat Likud government is out of touch with the public. (And if the Court refuses to step down, despite being out of touch, so should the 64 MKs who are entitled to their majority until October 2025 elections and the new seating in January 2026.)
10. Which brings us to the first-ever decision by the Court to overturn an Amendment to a Basic Law. The proof — before we explore deeper — of their decision’s corruptness is that they acted like Thieves in the Night. They waited until the country was mired in the third month of a brutal war that will run for a year, with almost 200 IDF soldiers killed, with some 120-150 hostages alive or dead in Hamas and Gazan civilian hands, with all the world except America turning on Israel for trying only to eradicate a terror group identical to ISIS and to retrieve her hostages, with the U.N. Security Council aiming at Israel while Biden abstains like mythical Nero, and with some International Court opening an investigation into Israel (presumably for allowing so many civilians to get murdered, raped, beheaded, and put into ovens). Like Thieves in the Night, hiding behind appropriate nighttime camouflage of black robes, the Court voted 8-7 to reverse a Constitutional Amendment.
11. Courts simply cannot do that. They do not have standing to do that. Yes, they can overrule a law that conflicts with a Constitution, and Amendments become absorbed into the Constitution. But the Constitution defines the courts. The legislature — thus, the people — creates courts and defines their authority. Courts cannot then take the document by which a duly constituted legislature enacted them and delimited their authority, and then redefine their own authority. They can’t do that. That’s Frankenstein stuff: turning on Dr. Frankenstein after he creates you. Only Monsters do that. And only in the movies. And for obvious reason: courts are noge’a ba-davar (self-interested). They cannot judge themselves judicially. Why not? Because. Because every reasonable legal system in the world precludes judges from judging themselves. If an individual judge is brought up on corruption charges, or accused of murder or defamation or whatever, he cannot come back and say: “Good news! I’ll just judge the case myself.” And if a new Constitutional rule says that judges may not escape the hard work of finding legal precedent by simply declaring something “unreasonable,” then those judges cannot come back and say “Well, sez you! We won’t let you tell us what to do.” Because then the public can come back and say: “Oh, yeah? Well . . . SEZ YOU!!!” And then you have that Civil War Ehud Barak prays for.
12. There also is a matter of national cohesion. In the United States, when the country was riven by the aftermath of the 2000 George W. Bush vs. Al Gore election, the case came to the U.S. Supreme Court. No one knows what the justices voted privately, but the official decision was announced as unanimous. The justices cared more about the country’s unity than their personal egos. Such a controversial ruling begged for unanimity to calm tensions. The last thing America needed at that moment was a 5-4 Supreme Court vote. Yet, Israel’s black robes handed down an 8-7 vote. That alone guarantees brutal further division. But there is more: Two of the “majority” retired after voting and before the corrupt decision was handed down. Not only did they vote as Thieves in the Night, but they even followed by acting as Thieves in the Night, absconding from the scene before they could be caught.
13. And finally: Yes, yes, Arabs have equal rights in Israel. But don’t tell Jews around the world that they have a duty — an obligation — to support a country where an Arab Muslim’s vote decides the nation’s jurisprudence, where Arab parliamentarians cast the deciding votes to create a “Palestine Authority,” where the Muslim Brotherhood’s Israel Wing makes the majority to constitute a corrupt Bennett-Lapid government. If the Arab Muslim justice was going to comprise the critical 8th vote to overturn Constitutional justice, one of the seven in the minority should have changed sides to make it 9-6 for reasons of comity, shall we say. The fact that not one of the 7 in the minority budged — not even any who also stated they should have the power to reverse Constitutional amendments — tells you how fiercely they opposed the majority behind the scenes.
14. There must be a reckoning. There will be a reckoning. Right now, with Hamas of Gaza, the “innocent civilians” of Gaza, Jordan, the “Palestine Authority,” Lebanon, Hezbollah, Syria, Iran, Turkey, the United Nations, the International Court, and Bernie Sanders to deal with, unity is the priority. The Government probably will spend its entire second year fighting on all these fronts. The black robes will be uncovered in due time. For now, while everyone on the Left is gearing up for a judicial fight and for attacking Netanyahu, I would aim where their resources are focused less: keep building and populating Judea and Samaria, and keep tearing down illegal Arab homes wherever they exist from Area C to the eastern neighborhoods of Jerusalem to the Negev. Build and tear, populate and evacuate.
