The process for selecting and appointing the President of the Supreme Court is a reflection of Israel’s public disputes, and shows how they have been transformed into increasingly serious judicial matters.
The recent appointment process for the Supreme Court President clearly demonstrates how public disputes in Israel have become legal issues, and how this trend is worsening. The disagreements over judicial appointments led to a court ruling that forced the Minister of Justice to convene the judicial selection committee against his will. In similar cases in the past, political wisdom prevailed, and when Minister Friedmann or Minister Livni refused to convene the committee, no petitions were filed.
But in Israel 2025, everything is justiciable, in both theory and practice, and a petition was filed. Consequently, the committee was convened by judicial order. Even after suspicions of President-elect Justice Amit’s conflicts of interest were published, the Supreme Court refused to halt the process for an external investigation, adopting an unconventional legal standard to justify its position.
As a result, the appointment process has become embroiled in controversy, contributing to the sharp decline in public trust in the judicial system. Polls conducted last week show a strong correlation between distrust in the judicial system and support for the government coalition. Under such circumstances, the Court will not be able to continue performing its role.
The judicalization of Israeli public life is not a natural phenomenon. Israel’s public and political arena underwent drastic judicalization following a slew of one-sided rulings led by Supreme Court President Aharon Barak. Questions that had previously been decided in the political arena became legal questions. Accordingly, the public’s ability to influence important decisions steadily diminished, while the nature of these decisions became more and more legalistic.
Recently, this trend has begun to show its effects in the criminal field as well – we are witnessing attempts to examine everyday political processes through the lens of criminal law, applying novel and stringent standards to elected officials. Opponents of the policies promoted by recent Israeli governments may be satisfied at present with the judicial outcomes, but these processes inflict heavy costs that are borne by everyone.
Unlike decisions made in the political arena, where compromise is encouraged, judicial decisions are binary: things are either permitted and prohibited, legal or illegal. Compromises can be reached in the public sphere, but there is no room for compromise when public and political disputes become legal questions; what ensues instead is a system of rigid legalism.
The end result is a public arena that does not compromise, and does not allow for any dialogue to be held without legal representation. The loss of the ability to compromise and reach agreements radicalizes public discourse and increases polarization. In such a climate, there is no room for elected officials to practice moderation and public responsibility, as they lose their power the more policy is determined by jurists.
Public trust in the system is the clearest victim of the process led by Justice Barak, who declared that “everything is justiciable.” This is why the publication of a meeting between the President of Israel, who sees his role as uniting Israeli society and reducing the severe political polarization, now in the midst of the crisis in which we find ourselves, is surprising. Is Barak’s legal advice what will heal the rift? Are we in need of legal expertise or in need of the kind of political leadership that prevents the judicalization of Israeli politics?
When Barak began promoting his judicial perspective, the consequences of which we are witnessing today, former Supreme Court President Justice Moshe Landau approached him and warned that the path he was laying down would sooner or later bring about a decline in the Court’s public standing. Already twenty years ago, Landau had his concerns about the direction Barak was heading, which would inevitably lead entire sectors to accumulate enormous hatred toward the court.
In an interview with Ari Shavit, Landau recounted how he approached Aharon Barak in an attempt to stop the revolution he was leading: “I met with him and told him that he lives inside this beautiful court building as though it were an aquarium. But neither he nor the other judges who follow him are sensitive to what happens outside the aquarium. I told him they weren’t attentive enough to what the public feels and what many lawyers feel. And these are very difficult matters.”
Landau explained that “President Barak has his own conception regarding what he calls the deep values of Israeli society. But this conception of the deep values of Israeli society is simply what Aharon Barak believes in at that particular moment.”
He added that, “In another year it could change completely. And what is no less serious is that the deep values in question are actually the deep values of a specific sector in our public sphere. When the court therefore speaks and rules in the name of such, it deviates from its neutrality and provokes opposition.”
These days, when everything Landau warned about is materializing, it would be better if the President of Israel, entrusted as he is with statesmanship and with advancing Israeli society as a whole from an apolitical position, would step out of the judicial aquarium. Sentiment outside the courthouse is extremely charged and can only be dissipated by listening and taking to heart the many problems with the current judicial climate.
We don’t just need a compromise regarding which judges will be appointed, but a compromise that will return the power of decision-making in public disputes to public representatives, and allow a discourse of compromise and moderation. To achieve this, we need to internalize Landau’s approach, not heap on more of Barak’s.
(First published in Hebrew in Maariv)
