The Israeli Supreme Court is so busy, the judges are working in shifts. Seriously.
The nation’s highest court heard 5,000 cases last year alone. That’s almost 14 a day. The U.S. Supreme Court, by comparison, took in 85 cases last year.
To keep up with the manic workload, the 14-member court hears cases in panels of three justices, with groupings of up to 11 judges assembled for especially difficult cases.
“We are obliged by law to take every case we can decide, or throw the case out on its merits. We can’t say it’s not worth our time to hear the case,” explained Israeli Supreme Court Justice Dalia Dorner, in town last week to speak at a Jewish Community Relations Council-sponsored event at Palo Alto’s Congregation Kol Emeth. “That’s too heavy a workload, it doesn’t make sense. Even if it’s not 85 cases but just 1,000 a year, I’ll be happy.”
Given the tremendous caseload, it’s no surprise that the Turkish-born Dorner has participated in many consequential and precedent-setting judgments in her seven years on the high court.
To name just a few, Dorner’s decisions have provided benefits rights to same-sex couples, severely limited the government’s ability to physically coerce information out of prisoners and given women access to military jet pilot courses.
But the ruling that stands out the most in Dorner’s eyes is last year’s “Lebanese prisoners” case, concerning the detention of 15 men held without trial. While the Lebanese nationals were not considered a threat to the state, some were imprisoned as long as 14 years in hopes they could eventually be exchanged for Israeli airman Ron Arad, held as a prisoner of war in Lebanon after his plane went down in 1986. His whereabouts are unknown.
“First, I was in the minority. A strong majority, which included our chief justice, Aharon Barak, thought the detention was legal. But then, there was a further hearing, and he reversed himself. My minority became a 6-3 majority,” said Dorner, a slow, precise speaker with a pleasant-sounding Middle Eastern accent.
“We can’t hold people as bargaining chits. We can hold them only if they pose a security risk. For me it was obvious. The opinion of the majority was reversed, and the chief justice himself reversed and agreed that the prisoners had to be released. I was very proud of this judgment.”
Operating without the constraints of a fully formed constitution, Israeli Supreme Court justices have traditionally possessed more judicial leeway than those of other nations, and their rulings can, correspondingly, carry greater weight.
So, while Israel has always featured activist courts, the past decade has been particularly precedent-setting.
Dorner explained why. “In the last 10 years there is a change, and the change is in access to the court. Before, only people with direct interests in the case could petition to the court. Today, human rights groups petition, every citizen can petition to the court. That has changed the work of the court, made the decisions much more activist because access has changed. That makes all the difference.”
The past 10 years have been especially groundbreaking ones for proponents of religious pluralism, she noted.
“There was a commission in the municipality of Tel Aviv to choose a [chief] rabbi for the city. And a woman wanted to be one of the members of this committee and the municipality didn’t agree,” recalled Dorner. “It was said that if they nominated a woman, no rabbi would agree to be even a candidate. They went to court, the court gave them relief and, I must tell you, there was a woman in the committee and a rabbi was chosen, no problem.”
In 1998, the court ordered Tel Aviv and two other cities to appoint Reform and Conservative representatives to local religious councils.
Pluralism “is recognized by the court,” she said. The most crucial pluralism cases have already been decided, she believes, with the exception of a “very important” pending case dealing with the viability of Reform and Conservative-administered conversions. Rabbinical courts, however, are still completely Orthodox-controlled, and Dorner sees no legal way to alter this.
Unlike in the United States, the Israeli head of state does not directly control appointments to the Supreme Court. The number of justices is determined by the Knesset, and judges are nominated and approved by a nine-member panel. Along with four government officials, the other five members of the panel include two from the bar association and three Supreme Court justices, including Dorner.
“The nominations [for the court] are not political. I don’t know what my colleagues’ political views are,” said Dorner, who feels the court’s relationship with Prime Minster Ariel Sharon ought to be no different than its relationship with any past prime minister.
Dorner’s tenure on the high court is heading into its final stanza. She is 67, and high court judges face mandatory retirement at age 70. But, “the future is what you write and what you decide, and that’s open for three coming years.”
With a wide smile, Dorner notes that the chief justice, Barak, is two years her junior. That means in 2006, the court’s senior judge will be Dorit Beinish — and Israel is slated to have a female chief justice.
“If they won’t change tradition, we know who will be the next chief justice today,” Dorner said. “All of our justices are in our 60s except one of our youngest, and she’s a woman — so I hope the next chief justice is a woman.”