Recap of "Three Presidents: Former Israeli Chief Justices in Conversation"

Recap of "Three Presidents: Former Israeli Chief Justices in Conversation"

Melanie Goldberg
December 24, 2015

“We consider ourselves a group. We are a collective. We sit together, we adjudicate together. We are a pluralistic institute . . . of equals.”

These are the words of Aharon Barak, former President of the Israeli Supreme Court, who sat on the bench for twenty-eight years. They sum up the attitudes of all three of the Presidents Emeriti who participated in an informal conversation hosted by the Israeli Supreme Court Project at Cardozo Law School (ISCP). Barak was joined by his counterparts, Dorit Beinisch and Asher Grunis on November 9th, 2015, for a wide-ranging discussion moderated by Michael Herz and Suzanne Last Stone, Co-Directors of the ISCP. 

The audience of approximately 200 listened as the former justices candidly spoke of their experiences, the current state of affairs in Israel, and their time on the bench.

“The Jewish people have such a long history, [that] there is no [substantial] history of the court because the State of Israel has been around for so short a time in comparison,” Barak emphasized, before he began delving into his own experiences. He wanted to make clear that what he said at the event would not be construed as the current Israeli attitude, which is constantly evolving.

Beinisch added, “things change in a country, things change in a society. Because Barak served for twenty-eight years, of course he changed the law. But things keep on changing, I hope always for good.”

Such changes included the institution of judicial review in 1995, which led to a “much more expansive view of judicial discretion of the 1980s and 1990s,” according to Grunis , and the removal of standing requirements that are necessary for petitioning the Court. On the matter of discretion, Barak claimed that a notion of “expansive discretion” had always been present, but the Mizrahi case in 1995 made that notion explicit. The language and categories developed by legal theorists have also been important in enabling the Court to articulate a theory of discretion. Barak’s positive valuation of discretion was not embraced by Grunis in particular, who explained that he has a “narrower view of discretion and use of standards” that Professor Herz analogized to the title of Justice Antonin Scalia’s famous article, “The Rule of the Law as a Law of Rules.”

In contrast to their counterparts in the United States, the Israeli Supreme Court often has the justices hear cases in panels of three.  Beinisch identified the problems with this practice. “People should know what is the opinion of the court because that is precedent. Therefore, we practically need the opinion of the court,” Beinisch emphasized. “If you have panels, you don’t know the Court’s opinion.”

All of the Presidents Emeriti emphasized the importance of turning to foreign legal sources for guidance. Beinisch explained that “Israel is much more involved and interested in other countries’ decisions, as we share many of the same issues as other countries. Why shouldn’t we learn from the experiences of others? We don’t copy it. We just see their reasoning, and if it makes sense, we follow. It doesn’t mean it’s binding.” According to Barak, the influence of the United States has waned since the Warren Court because it has become very provincial. He recalled remarking to Justice Scalia that “You were the light I followed. Don’t turn off the light.” All of the Presidents Emeriti criticized the tendency of the United States Court to ignore foreign legal sources, a view that Grunis characterized as “parochial.”

On the matter of judicial independence, the Presidents emphasized the importance of the apolitical nomination process used for the appointment of Justices in Israel. That process ensures that, in Barak’s words, the Court maintains its “personal independence” despite not having “institutional independence.” Grunis characterized the calls for change to the appointment process as a “real danger.”

The justices closed by emphasizing the importance of dissent among the justices, something which, according to Barak, is the “beauty of democracy.” He concluded with a plea to his successors on the Court: “Don’t overrule my judgment because I wrote it, and don’t hesitate to overrule my judgment because I wrote it.”