The eminent law professor Robert Bork once described the Israeli Supreme Court as the worst in the Western world. Israel, Bork wrote, “has set a standard for judicial imperialism that can probably never be surpassed, and, one devoutly hopes, will never be equaled elsewhere.”
Bork finds “less and less reason for the Israeli people to bother electing a legislature and executive; the attorney general, with the backing of the Supreme Court, can decide almost everything for them.”
Making matters worse, judges in Israel, including Supreme Court judges, are chosen by a non-elected panel dominated by other judges, and there are no possibilities for impeachment of judges by the parliament or by ballot initiative.
Israel’s Supreme Court has been dominated by the anti-democratic doctrine of “judicial activism” for a generation. In many cases its rulings are attempts to implement the leftist ideology of judges. The unelected justices of the Supreme Court claim the right, invented by them out of thin air, to overturn laws passed by the elected representatives of the people.
Not surprisingly, the Israeli Supreme Court is militantly aggressive in defending the liberties of Israeli Arabs and far leftists, but seems to have little interest in defending civil liberties, including freedom of speech, for others.
The court recently refused to review the decision of the Nazareth Appeals court in the long-running Plaut-Gordon lawsuit, in effect leaving the earlier decision by the Nazareth court in place. It took the Supreme Court nearly two years to decide not to review the earlier appeals court decision. Its refusal in essence formally establishes infringements on freedom of expression in Israel.
The Neve Gordon SLAPP suit filed against me, which began a decade ago, should have been summarily dismissed in the very first round of litigation.
Gordon is a far left academic who routinely calls for Israel to be eliminated and who insists Israel is a fascist, Nazi-like apartheid regime. He sued me because I’d accused him of being a “groupie” of the Israel-hating American academic Norman Finkelstein. I also denounced Gordon for serving as a human shield for wanted terrorist murderers and interfering with Israeli anti-terror operations.
His suit was assigned to an Arab judge whose husband was the right-hand party man of Azmi Bishara, the accused Israeli Arab spy now in hiding. She found for Gordon. In essence her verdict amounted to the rule that treason in Israel is protected speech but criticism of treason is libelous.
That lower court ruling was later reversed in the Nazareth Appeals Court, but Gordon was allowed to retain 10 percent of the damages the first judge had granted him. That 10 percent was based entirely on the use of the term “Judenrat-wannabe” in reference to Gordon’s activities.
I then filed a Supreme Court appeal. After dragging its feet, the Supreme Court panel of three judges (two Jewish and one Arab) decided there was insufficient constitutional or public interest in reviewing the Nazareth appeals ruling, in effect allowing it to stand. And, in effect, also preserving the suppression of freedom of speech contained in that verdict.
The Israeli Supreme Court once again refused to defend the “semi-constitutional” defenses of freedom of speech that are supposed to exist in Israel. In their ruling, the judges appeared not to have read my appeal, and so failed to note that the description of Gordon as a “judenrat-wannabe” that was deemed “libelous” was in fact a reference to Gordon’s serving as a human shield for wanted murderers and his illegal interference with Israeli military operations against terrorists.
For all intents and purposes, the Israeli Supreme Court re-established Israel’s status as a mere semi-democracy, one in which freedom of speech does not really exist, at least not for non-leftists.
The Supreme Court’s ruling established the principle that everyone in Israel may use “Holocaust-era imagery” in discourse, except for critics of the left. The Nazareth appeals court had ruled that my use of the term “judenrat” was not protected speech. Of course, routine denunciations by Israeli leftists and Arabs against Israel as a Nazi or fascist entity are protected speech.
The Supreme Court even ignored its own earlier ruling (Freij vs. Kol Hazman) that came out after the Nazareth Appeals ruling in Gordon-Plaut, which stated that use of Holocaust-era imagery in discourse actually is permitted in Israel, especially in political discourse.
The opposition to democracy and freedom of speech in the Israeli legal community transcends court justices. In recent months we have seen repeated rounds of petitioning in favor of leftist causes signed by numerous professors and other faculty members in Israeli law schools. At the same time, it is all but impossible to find examples of law professors speaking out in favor of freedom of speech for non-leftists.
In short, Israeli law schools have become home to masses of law professors and other academics who are either fundamentally anti-democratic or too intimidated and cowardly to take a public stand in favor of freedom of speech.
Meanwhile, Israeli judges and leftists are campaigning against a Knesset proposal to require parliamentary approval of judicial appointments. They consider the idea preposterous. I mean, what does the Knesset think this is here, the United States?
Steven Plaut is a professor at the University of Haifa.His book “The Scout” is available at Amazon.com. He can be contacted at firstname.lastname@example.org.