Judicial Conservatism and Intellectual Courage: A Homage to President (ret.) Asher Grunis
Judicial Conservatism and Intellectual Courage: A Homage to President (ret.) Asher Grunis
The recent retirement of President Asher Grunis would probably not be viewed by the legal community in Israel as the end of an era in the history of the Supreme Court. Justice Grunis has always been considered a sophisticated and cautious jurist who specialized in private law. It is also a well-known fact that during his short three-year tenure as President he focused primarily on procedural reforms in order to deal with the heavy caseload pressures on the judicial system. Nevertheless, Grunis' retirement is an important occasion for the Court’s public law jurisprudence because it may bring to an end objections to the judicial activism that has dominated the Supreme Court for the last three decades. In this short post I shall review the development of the discourse of judicial activism in the Supreme Court in the fields of administrative and constitutional law. I shall focus on the debate regarding the use and scope of the concept of 'reasonableness' in administrative law.
Background: The Rise of Judicial Activism in Administrative Law: The Concept of Reasonableness
The rise of judicial activism in the Israeli Supreme Court as of the early 1980s was characterized by a number of doctrinal changes. Among other things, the Court scrapped the doctrine of standing by developing the concept of 'public petitioner' that enabled anyone to bring any sort of grievance against any governmental decision. The Court also abandoned the doctrines of justiciability (or 'political question') by stating that any political or social issue is always susceptible of being reviewed and decided by courts of law, as in the following words of one of the leaders of this tendency, Justice Aharon Barak:
Indeed, every action can be "contained" within a legal norm, and there is no action regarding which there is no legal norm which "contains" it. There is no "legal vacuum", in which actions are undertaken without the law taking any position on them. The law spans all actions. HCJ 910/86 Ressler v. Minister of Defense , IsrSC 42(2) 441 (per J. Barak at para. 36). For the English version see: http://versa.cardozo.yu.edu/opinions/ressler-v-minister-defence#sthash.CupZohJj.dpuf; Suzie Navot, The Constitution of Israel: A Contextual Analysis 206 (Hart Pub. 2014); Yoav Dotan, Lawyering for the Rule of Law: Government Lawyers and the Rise of Judicial Power in Israel 36-37 (Cambridge, 2014).
On the substantive level, the main tool for developing the new concept of judicial review was the introduction of the test of 'reasonableness' as a prominent device for the review of administrative actions. The content of this test is reflected in the following words of Justice Barak:
The reasonableness test is a well-known and familiar one. Under it, the court does not replace the …authorities' exercise of discretion by its own. Under this test, the court asks whether a reasonable …[agency] would have taken the actions which the …[agency] took, or the actions which the petitioner requests the …[agency] to take. See HCJ Ressler, id. at para. 36. See also HCJ 389/80 Dapei Zahav v. Broadcasting Authority,  IsrSC 35(1) 421; HCJ 376/81 Lugasi v. Minister of Communications  IsrSC 36(2) 449.
The development of 'soft' and vague grounds for judicial review such as reasonableness, proportionality, or 'arbitrary and capricious' was not unique to the Israeli Supreme Court. On reasonableness in the UK, see Associated Provincial Picture Houses Ltd v. Wednesbury Corporation  EWCA 223 (KB); on proportionality in the EU, see Moshe Cohen-Eliya & Iddo Porat, Proportionality and Constitutional Culture (2013); on “arbitrary and capricious” in the United States, see 5 U.S.C. § 706 (1946), Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). In Israel, however, the Court expanded the use of this test to almost all areas of governmental decision-making, including fields that are normally beyond (or almost completely beyond) the scope of review in other systems. Thus, for example, the Court applied this test to cabinet decisions in major policy matters (HCJ 8397/06 Wasser v. Minister of Defense.  IsrSC 62(2) 198 [stating that the cabinet decision not to re-build classrooms in southern areas of Israel that would provide students full protection from terror rockets attack is extremely unreasonable]. For the translation, see http://versa.cardozo.yu.edu/opinions/wasser-v-minister-defense), to military decisions, including those taken in the midst of combat operations (HCJ 3114/02 M.K. Barakeh v. Minister of Defence  IsrSC 56(3) 11; HCJ 3451/02 Almedani v. Minister of Defence IsrSC 56(3) 30.), to prosecutorial decisions (HCJ 935/89 Ganor v. Attorney General  IsrSC 44(2) 485; HCJ 425/89 Tzofan v. The Chief Army Prosecutor IsrSC 43(4) 718), and so forth. Likewise, the test was applied to appointments of senior government officials, military officers, and even cabinet ministers, and was the basis for some decisions in which the Court ordered the dismissal of such officials from their positions. Thus, for example, in 1993 the Court ordered Prime Minister Yitzhak Rabin to dismiss the Minister of the Interior, Arie Deri, from his position due to the indictment issued against Deri and despite the fact that under the relevant statute no such dismissal was required. The Court ruled that Rabin's refusal to dismiss Mr. Deri amounted to 'extreme unreasonableness' and ordered the Prime Minister to dismiss Deri accordingly. HCJ 3094/93 The Movement for Quality in Government in Israel v. State of Israel  IsrSC 47(5) 404, available in English at http://versa.cardozo.yu.edu/opinions/movement-quality-government-v-state-israel; HCJ 4267/93 Amitai - Citizens for Judicial Watch v. Prime Minister  IsrSC 47(5) 441.
In the early 1980s, when Justice Barak introduced this ambitious concept of reasonableness, he faced strong – even furious – opposition from his peers. The justices who belonged to the 'old guard,' such as President Landau and Justice Vitkon, sharply criticized Barak's version of reasonableness, pointing to the vagueness and indeterminacy of this concept. They argued that it infringes on the principle of separation of powers and may completely destroy the fundamental principle of judicial deference to administrative discretion. Dapei Zahav p. 432-434; HCJ 840/79 Israel Contractors and Builders Centre v. Government of Israel  IsrSC 34(3) 729, 750-752. They also expressed deep concerns that by augmenting judicial power, Barak’s move would inspire a backlash and impel the political branches to curtail the Court's autonomy. Since Israel has no formal constitution, the Knesset is authorized, in principle, to curtail judicial independence; see Dotan 2014, pp. 14-18.
This opposition to the activist concept of reasonableness persisted throughout the 1980s, mainly due to the firm opposition of Justice Menachem Elon. HCJ 1635/90 Zarzevski v. Prime Minister  IsrSC 45(1) 749, pp. 769-773. Gradually, however, as the members of the Court’s old guard retired and were replaced by younger judges, the objections largely disappeared. The new appointees to the Supreme Court seem to have enjoyed the expanded powers bestowed on them by the concept of reasonableness, which enabled them to impose their ideological convictions on the Israeli administration under the thick and vague veil of reasonableness. Therefore, as of the early 1990s, the discourse of reasonableness took over the Court's jurisprudence completely with few exceptions. CA 6024/97 Shavit v. Rishon Lezion Jewish Burial Society  IsrSC 53(3) 600. For the English version see http://versa.cardozo.yu.edu/opinions/shavit-v-rishon-lezion-jewish-burial-society. Rather than dealing with the hard questions surrounding the very legitimacy of the use of reasonableness, the Court's discourse dealt intensively with questions of application and treated the concept of reasonableness as if it were simply a technical tool applied to administrative actions by 'professionals' (i.e., judges) on an ideologically 'neutral' basis. See, e.g., Barak's response to Englard in Shavit, para. 5-8 per President Barak.
Against this background, Justice Grunis' opinion in Emunah v. Prime Minister came largely as a surprise to the Court's followers. HCJ 5853/07 Emunah v. Prime Minister (2007) (not yet reported). For the English translation see http://versa.cardozo.yu.edu/opinions/emunah-v-prime-minister#sthash.DjCTsYFt.dpuf. The case dealt with the appointment of MK Haim Ramon as Deputy Prime Minister. Shortly before the appointment Ramon had been convicted of committing an indecent act. However, since the sentencing court did not give him a custodial sentence and did not hold that that offence involved moral turpitude, there was no statutory obstacle to such an appointment. Accordingly, the appointment was approved in a vote by the plenary of the Knesset. The petitioning organization argued, however, that the appointment should nevertheless be struck down on grounds of extreme unreasonableness. In a majority opinion (Justice Procaccia joined by Justice Grunis with Justice Arbel dissenting) the High Court of Justice (=HCJ) dismissed the petition. There was nothing peculiar about the fact that an appointment of a cabinet minister was scrutinized through judicial review (in fact, such reviews have been commonplace in the post-1980s HCJ). The fact that the petition had been dismissed was also not surprising given the relative lightness of both the offence and the sentence. Grunis' concurring opinion, however, stood as a blunt outlier to the normal discourse of the Court. It challenged the fundamental logic and justification underlying the criterion of reasonableness. This challenge is well reflected in the following words:
The ground of unreasonableness is essentially different from the defects of ultra vires and procedural defect. When the court examines these two defects, the advantage and unique role of the court are self-evident. The court’s expertise in general, and in the field of administrative law in particular, relates to questions of authority and procedural flaws. We should point out that questions of authority and procedural flaws arise also in the fields of criminal law and civil law. By contrast, the court has no special advantage or expertise on the subject of unreasonableness….The great disadvantage of this ground in its current scope lies in its high degree of abstraction. The high degree of abstraction expands the role of judicial discretion and thereby increases legal uncertainty. It creates a huge disparity between its exalted position in the legal universe and its application in a concrete case…Often use is made of the concept of weight in order to emphasize the concrete application of the ground of unreasonableness. Thus it has been said on more than one occasion that a decision will be set aside for unreasonableness even if the authority that made the decision took into account all of the relevant considerations, where it gave the wrong weight to one or more of the considerations that were taken into account…Admittedly metaphors, such as weight, are an accepted tool of legal language. The imagery helps the court to analyze, develop its thoughts, and convey the reasoning to the reader. At the same time, the use of metaphors may sometimes make the reasoning vaguer rather than clearer. The use of the image of weight in the context of unreasonableness admittedly helps to some extent. But we cannot ignore the fact that a determination of unreasonableness is almost entirely based on an examination of the end product, i.e., the outcome of the decision. In other words, the use of the metaphor of weight with regard to considerations that the competent authority making the decision took into account can sometimes, it would seem, be used to disguise disagreement with the result. Id. at Para. 9 per Justice Grunis (emphasis added).
For a reviewer from the outside (and let alone for those familiar with the academic writing on reasonableness) Grunis' critique may seem predictable, even trivial. Not so for those internal to the Court's rhetoric. When Grunis says "We cannot ignore the fact that a determination of unreasonableness is almost entirely based on an examination of the end product…," he is throwing a bomb into the Supreme Court's Hall, since ignoring this (presumably trivial) fact was exactly what the Court had been doing for the last three decades! This crafted rhetoric of nicely 'balancing the conflicting considerations' and giving each one of them its 'proper' weight under the (supposedly) 'mechanical' formula of reasonableness was introduced by President Barak in the early 1980s. Thereafter it was repeated and reproduced thousands of times by Barak's followers on the bench. It served as the prime engine for the expansion of the Court's intervention to almost any field of governmental and political activity. See, e.g., Ronen Shamir, The Politics of Reasonableness, 5 Teoria u’Bikoret 7 (1994) (Hebrew). Hence, stripping off the emperor’s gown of reasonableness meant more than just an embarrassment to the Court's jurisprudential coherence. It threatened to pose a genuine impediment to the continuation of this comprehensive process, i.e., it could have become a political problem for the advocates of judicial activism. Not surprisingly, Grunis' peers on the panel were quick to express their shock and disagreement. Justice Arbel admitted that "the difficulties raised by [Justice Grunis] are indeed real ones…," but insisted that these difficulties are not at stake in the specific case at hand since "the court has expertise with regard to assessing the weight of a criminal conviction…". Id. at para. 19b (per Justice Arbel). Justice Procaccia, on the other hand, was not willing to dispose of Grunis' critique so easily. She warned that his approach to reasonableness "may lead to a revolution in the understanding of the principle of the legality of administrative action and limit the legal tools available to the court for examining the action[s] of public authorit[ies]…". Id. at para. 33 (per Justice Procaccia). Both Justices ended their part in this awkward debate by repeating the standard pronouncement that the Court should – as always – show 'much care' in using this tool of reasonableness. Id. at para. 19b (per Justice Arbel); Id. at para. 33 (per Justice Procaccia).
Justice Grunis, for his part, did not seem convinced by the answers to these hard questions. He continued to serve as a lone voice on the bench in his skeptical approach toward the very use of reasonableness, particularly with regard to appointment or removal decisions. He refused to apply the test of reasonableness as the basis for intervening in sensitive political decisions. Ultimately, he did not succeed in bringing about a change in the Court's discourse. However, his cautious approach to judicial review at large and to the reasonableness test in particular prevailed in some major cases. HCJ 3752/10 Rubinstein v. Knesset (2014) (not yet reported); HCJ 2324/11 Gil v. Minister of Education (2011) (not yet reported); HCJ 4704/06 The Legal Forum for the Land of Israel v. State of Israel (2006) (not yet reported); HCJ 2114/12 Association for Civil Rights in Israel (2012) (not yet reported). In others, he remained loyal to this approach as a dissenter. Thus, for example, in 2013 the HCJ ordered the removal of three elected mayors of large cities from their positions following their indictments on charges of corruption. Grunis was the only dissenter. HCJ 4921/13 Ometz Association of Citizens v. Mayor of Ramat HaSharon (2013) (not yet reported). For those who thought that over time Grunis had softened his opposition to the broad and unrestrictive use of reasonableness in administrative law, he did not forget to reiterate in detail his position in Emunah, a case that dealt with ministerial appointment and one of his last decisions on the bench. HCJ 3997/14 Movement for Quality of Government v. Minister of Foreign Affairs (2015) (not yet reported).
Grunis' willingness to challenge both the language and the ideology behind the prevailing activist approach in the Supreme Court was not limited to the issue of reasonableness. In the field of administrative law, he expressed a cautious approach also with regard to access doctrines such as standing and ripeness. Regarding the ripeness doctrine, see HCJ 3429/11 Graduates of the Arab Orthodox School in Haifa v. Minister of Treasury (2012) (not yet reported) and HCJ 2311/11 Sabah v. Knesset (2014) (not yet reported); regarding the standing doctrine, see AdminA 3782/12 Tel Aviv-Jaffa Police District Commander v. The Israeli Internet Union (2013) (not yet reported). In constitutional law he advocated a narrow concept of judicial review based on Ely's process-based theory, much to the dismay of his peers led by President Barak. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard Univ. Press, 1980). H.C. 6427/02 Movement for Quality of Government v. Knesset (2006) (not yet reported) (para. 7 per J. Grunis; para. 75-77 per CJ Barak).
Grunis' retirement will not end the debates between more and less activist judges in the Israeli Supreme Court. But the open question now is whether disagreements between the judges will relate only to the outcomes in judicial review, or whether there will be someone willing to pick up the torch of intellectual integrity and continue to ask the uneasy questions regarding the prevailing rhetoric of disguise.
Yoav Dotan is the Edwin A. Goodman Professor of Law and former Dean of the Faculty of Law at The Hebrew University of Jerusalem and a member of the Academic Advisory Board of the Israeli Supreme Court Project.
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