The Supreme Court

Never would I imagine that I would visit a foreign country’s Supreme Court before the United States’ Supreme Court.  But last Thursday this occurred, and now I want to visit the Supreme Court in the United States even more than I did before this study abroad trip when I return to the US in order to compare and contrast them. Nonetheless, I know enough about both Supreme Courts and their respective court systems in order to compare and contrast them in their structures and logistics.

In Israel, just like the US, the Supreme Court has original and appellate jurisdiction. The Israeli Supreme Court has original jurisdiction in cases regarding government entities, such as the Ministry of Defense.  However, in the United States, the Supreme Court has a more limited scope of original jurisdiction including diplomatic matters and those involving states directly. For example, if someone in America does not like a decision given down by the Department of Defense, the person would have to file a suit in a federal district court opposed to the Supreme Court. Although I do not know exactly why all cases dealing with government entities go directly to the Supreme Court in Israel, I would argue that there are two main reasons. First, in theory, any decision that requires a check on the establish government should be handed down by the most well educated and experienced in law and government. In modern society, the Supreme Court would be that body with these intellectual statesmen. But if this premise is true, then way does the United States not follow this model? The answer lies in the second reason, Israel’s small size. Unlike the US, the size of Israel is about the size of New Jersey. Because of the small size of the country, the highest court in Israel can hear these important matters regarding the amount of power the government exerts in its decisions.

Now we have a sense of how the original jurisdiction works in Israel, but what about the appellate jurisdiction? I had the same question on our tour of the Supreme Court. Sadly the tour guide did not know how cases get approved to be heard in front of the Supreme Court, but a son of another person in our tour group did! This extremely nice woman was kind enough to call her son, who had intern at the Israeli Supreme Court, so I could find out the answer to this question. After about a ten minute phone conversation, I found out the answer! Normally the case is reviewed by a random justice and he (or she) determines if the Court should hear the case. Nonetheless, in special circumstances the President of the Supreme Court may designate a particular justice if there is a need for a more specialized look at the case, i.e. a controversial criminal case may be designated to a justice with extensive criminal law experience. When comparing this to the United States, it is interesting because at least four of the justices must be willing to hear a case in order for it to be brought in front of them. Moreover, in the Israeli Supreme Court, there are at least three justices that preside over the case. This odd number of justices, according to the tour guide at the Supreme Court, allows the court to have diversity in the ruling yet still come to a final conclusion because of the odd number. But in reality, in order to get to that diversity of opinions on the bench, the case must withstand the scrutiny of that one justice in determining if the Court hears the case. The court attempts to have a variety of opinions keeping with the concept of democracy, but fails in the appeals process review. But this is not the only instance of non-democratic roots in the Israeli court system. 

In Israel, there is no jury at any level of the courts. This is a very liberal idea because people’s property, liberties, and life are determined by the elite in society.   In America, the Anti-Federalists argued that we needed a jury in order for trials, especially criminal trials that involve the possible loss of liberties and life, because it would not be legitimate justice if we were not judged by our peers. So does that mean that the justice in Israel is just a fallacy? By having non-democratic, liberal roots in the Israeli court system, justice is not lost—it is just achieved in a different way than America. In America, justice becomes a subjective task while justice is an objective task in Israel. It is an objective task in Israel because judges only look at the law and then decide the case in regards to that law. In America, the same task is assigned to the jury but the jury is less immune to emotions in a case than judges that deal with similar cases on a daily basis.

The last aspect in this comparison between the United States and Israeli court systems is the role of judicial restraint and activism. It seems that after reading the chapter on Israel’s Supreme Court in Freedman’s Contemporary Israel, the Supreme Court was very passive until a few decades ago. More recently they have had their hands in the debates regarding the legality of torture and checking the power that the executive branch has in Israel. The Supreme Court ruled that torture is illegal and that it does not actually represent the core values of the Israeli public (136). Furthermore, the Court ruled that one of Rabin’s ministers had to be removed against the Prime Minister’s wishes because there was an indictment against the minster in question (137).   The former example reminds me of the judicial activism exercised in the civil rights area, in particular the Brown v. Board of Education case because the Court reversed the earlier decision by the court in Plessy because the core values of the American society changed in the five decades between the two cases.  The latter really does not have an American counterpart, according to my knowledge, because people resign in an administration if there is a scandal surrounding a person within it. Nonetheless, the American Supreme Court does have its role in politics as seen in the case regarding the 2000 election between Gore and Bush. In reality, the American and Israeli Supreme Court are not that different especially when you look at the judicial activism and restraint debate.

It is important to look at the similarities and differences between the two court systems and to reflect whether the Israeli Supreme Court represents a liberal, democratic, or liberal democratic system within their courts in order to understand the foundation of the criminal justice system in Israel.