Abstract

Public trust in the Israeli Supreme Court has been declining in recent decades. The most common explanation for this is that the court became more involved in political affairs, thus destroying its public image as an objective and apolitical institution. I posit that this reason alone cannot explain the decline in public support for the court. I explain this first by demonstrating how the “political involvement” theory does not account for the timing in which public trust in the court dropped considerably, and how public trust has not increased in response to the Supreme Court’s recent hesitancy to contest the decisions of Israel’s other branches of government. Second, I argue that other social actors—such as commercial television channels and ultra-orthodox leaders—have been involved in the process of actively changing the way that the Israeli public perceives the Supreme Court. I claim that the impact of these social actors must be examined to truly understand the reasons for the declining trust in the Supreme Court.

The "Political Involvement" Theory and its Shortcomings

Politicians who support the Judicial Reform are not the only ones who attribute the public decline in trust in the Supreme Court to the court’s increased involvement in political affairs—this position is supported by several legal researchers⁴. For instance, Garber and Givati show that the decline of public trust in the court began during the 1990s, coinciding with the “Constitutional Revolution,” a process led by Supreme Court President Aharon Barak to use Israel's “basic laws” as an existing constitution, thus giving the Judicial branch increased authority to oversee the actions of the Knesset and the Government⁵. A similar theory is presented by Daniel Friedman, who claimed that the increased involvement of the justice system in political affairs began in the 1980s, and that by the mid-1990s, it caused a decline in level of public respect for the court⁶.

While these claims address a certain facet of the reasons behind declining support for the Supreme Court, I propose that, at the very least, the situation is much more complex. A major indication that these theories are missing a crucial component is to be found in the delay between cause and effect. Most scholars agree that the involvement of the Judiciary in political affairs was at its peak during the 1990s and early 2000s. By 2010, the Supreme Court became much more cautious than it had been in the 1990s and was more likely to refrain from intervening in decisions made by the government and the Knesset⁷.

My own research supports this view as well. In the interviews I conducted with Israeli legal scholars and former Supreme Court judges, I asked them to name significant cases over the years in which the Supreme Court intervened in public affairs. A majority of the cases that were mentioned occurred between 1993 and 2010, while significant cases between 2010 and 2022 were fewer and farther between. Importantly, the most recent Supreme Court rulings mentioned by many of these interviewees were decisions in which the court firmly backed government policies, such as when they approved Netanyahu’s position as Prime Minister while going through a

criminal trial, and when they confirmed the legality of the nation-state law. Several of the people I spoke with compared the attitudes presented by the Supreme Court in 2010-2022 with those of the court two decades earlier and remarked how the court tried to avoid intervening in political affairs whenever possible throughout the latter period.

If the level of public support for the court was dependent solely on its political involvement, we might expect that this support would decline sharply during the 1990s and begin to rise again after 2010. However, this is not the case. Instead, the 1990s saw only a moderate decline in levels of trust in the court, followed by a sharp and continuous decline in the 2000s, which is still ongoing⁸. If we accept the claim that public trust in the court declined in direct response to the political involvement of the Judiciary, there is no easy explanation for this discrepancy. This revelation suggests that other factors must be considered.

The Role of Commercial Media

One example of such a factor is the role of the media in framing the actions of the Supreme Court, thus influencing the way it’s perceived by the public. Bassok has documented the change in the way that televised news reports have depicted the Supreme Court and demonstrated that they have portrayed the court as an apolitical institution, even when it had already begun to be involved in political affairs, thus preserving the public image of the court as objective and neutral⁹. This portrayal began to change several years later, with the establishment of commercial television in Israel. For the first time, television channels had to compete for ratings and changed their style to be more attention-grabbing. Due to this style, television news reports increasingly framed the court as an institution that made political decisions based on personal ideologies and partisan politics¹⁰.

The influence of commercial media is also apparent today. As explained above, legal scholars claim that the Supreme Court has become much more cautious in recent years, and less likely to contest decisions and policies that the government and the Knesset promote. Despite this, many Israeli citizens I have spoken with see the matter quite differently and insist that the Supreme Court today is as politically involved as ever, if not more so. This discrepancy has likely developed due to the media’s depiction of the Supreme Court as a partisan, political institution—as this framing is much more likely to attract viewers. Commercial media is thus one example of a social actor that played a significant part in shaping public perceptions of the Supreme Court, and should not be disregarded.

The Role of Ultra-orthodox Leaders

Another example I will explore in more depth is the role of ultra-orthodox leaders in shaping public perceptions of the Supreme Court. The ultra-orthodox community has maintained a generally negative attitude toward the court over the years. The authority of the Supreme Court is based on secular-democratic traditions. As such, many ultra-orthodox people view this institution as inherently inimical to their beliefs—no secular institution has the authority to overrule the edicts of (past and present) religious leaders, whose authority is based on divine power. Therefore, there has been no fundamental shift in the way that ultra-orthodox communities view the court, making them a fascinating case study. In contrast to many other sects of Israeli society, it is unlikely that Judicial activism caused a decline in the ultra-orthodox community’s level of trust in the Supreme Court since they have never viewed the court with much trust.

Despite this, there is a noticeable difference in how ultra-orthodox people have reacted to unfavorable Supreme Court rulings over the years. Their general attitude towards Supreme Court rulings that may be viewed as “anti-religious” has not changed. From the outset, they have rejected and contested the court’s decisions that they have deemed as antithetical to their religious customs. But the reasoning for their opposition to such court

decisions has changed drastically. For years, the reasoning disseminated by ultra-orthodox figures was rooted in religious principles—their opposition to court decisions was justified by claiming that these rulings went against their religious teachings. However, more recently, ultra-orthodox leaders have begun to evoke a different type of reasoning in their public statements, one which is based on democratic and liberal ideologies.

 This process can be demonstrated with five public debates over Supreme Court decisions that the ultra-orthodox community deemed “anti-religious.” In the first of the instances, which occurred in 1988, only religious ideas were used to counter the court. A decade later, leaders within the community began to use liberal and democratic ideas to explain their side of the argument. It took several years for this discourse to take root among others within the ultra-orthodox community, and by 2021, liberal ideas were not only used by leaders of the ultra-orthodox community, but by ordinary ultra-orthodox people.

In 1988, the Supreme Court ruled that a woman would be allowed to serve on the religious council of Yeruham, a small town in southern Israel. Ultra-orthodox leaders were outraged—according to them, having a woman serve on the council and take part in discussions in a room full of men would be immodest. It would make it impossible for male council members to attend meetings. Rabbis and religious politicians argued against the decision on the grounds that it went against important religious edicts. For instance, Rabbi Itzhak Peretz from the Shas party said that the ruling contradicted the spirit of the Jewish Torah¹¹. The Rabbi of Yeruham threatened to resign in protest because, according to him, it was unimaginable that a woman would serve alongside men on the religious council. He added that appointing a woman to the council was an offense against the Torah, and against him personally¹².

Nine years later, in 1997, the Supreme Court enraged the ultra-orthodox community once again when it ruled that a main road going through an ultra-orthodox neighborhood in Jerusalem could not be closed completely during the Sabbath. Once again, critiques of the court mostly evoked religious terms. However, one ultra-orthodox leader phrased his complaints differently, claiming that the decision was not only anti-religious, but also anti-democratic. Israel Eichler—a reporter at the time who went on to become a member of Knesset—wrote that the decision was a testament to the danger of allowing unelected judges to determine such matters, thus posing a threat to democracy. He added that “the recklessness of secular coercion makes a mockery of the pretense of democracy and religious freedom.”¹³ This type of argument was a surprising claim for a member of the ultra-orthodox community who otherwise opposed many democratic ideas as a matter of principle¹⁴. It suggests, therefore, that his choice of words was not coincidental, but rather selected with a specific purpose in mind.

In 1999 and 2010, this novel type of criticism from the ultra-orthodox community continued. When Supreme Court decisions were contested by the ultra-orthodox community, religious leaders used a mix of religious and democratic reasoning, while laypeople from the ultra-orthodox community stuck with religious reasoning alone. For instance, in 1999, the ultra-orthodox community protested a series of decisions made by the Judicial system that were perceived as anti-religious¹⁵. The leader of the ultra-orthodox party Agudat Israel referred to the situation as “a judicial dictatorship,” and added that secular courts should not be allowed to intervene in religious issues¹⁶, demonstrating a combination of democratic-based and religious terminology. At the same time, the ultra-orthodox community organized a mass demonstration against the Supreme Court, which strictly utilized religious terminology: they insisted that the demonstration was, in fact, a religious event—a mass prayer—and thereby did not frame it in political or liberal terms whatsoever¹⁷.

In 2010, another Supreme Court decision angered the Ashkenazi ultra-orthodox community. A year earlier, the court had decided to outlaw ethnic segregation between Ashkenazi and Mizrahi girls in a school in Emanual, an ultra-orthodox settlement in the West Bank. Many parents of girls at the school had refused to comply with this decision¹⁸, and in June of 2010, they were jailed for several days for contempt of court. While voicing his critique of this event, Moshe Gafni—who was (and still is) the leader of the “Degel HaTorah” ultra-orthodox party—stated that the decision was befitting of “the darkest regimes of history, not a modern state”¹⁹. In other words, his argument was opposed to the use of extreme force by the state, religious principles aside. In contrast, one of the fathers who was arrested declared his opposition to the Supreme Court as being “in the name of God”²⁰.

Thus, between 1997 and 2010, the leadership of the ultra-orthodox community presented the actions of the court as undemocratic, while others within the community focused on religious considerations alone. By 2021, the language had changed. In July of that year, the Supreme Court decided to allow certain gender-based segregation in higher education institutions to enable ultra-orthodox students access to academia without forcing them to engage in activities that they deemed immodest. However, the court determined that gender-based segregation needed to have certain limits, namely that women would still be allowed to teach ultra-orthodox male students.

In this case, both ordinary people and people in leadership positions from the ultra-orthodox community started to object to the Supreme Court decision on a liberal-democratic basis. An ultra-orthodox student described the decision as a threat to the values he believed in, and claimed that it coerced him to act against his beliefs²¹. Another ultra-orthodox student described the decision as hurting religious freedom, and an ultra-orthodox professor explained that ultra-orthodox students feel as though they are required to relinquish their religious ideals in the pursuit of academic achievements²². The professor added that the decision was “unfair, unwise and un-liberal”²³. These claims promote the expansion of practices based in Jewish religion and contest the validity of the Supreme Court decision but use the language of rights and freedom to do so, while employing a liberal ideology as their basis. In the case of the ultra-orthodox professor, he overtly used the idea of liberalism in his objection to the actions of the court, claiming that the decision went against liberal values in how it limited religious freedom. 

Thus, over the years, a new type of discourse has taken root: instead of using religious principles and terminology to justify their opposition to Supreme Court decisions, ultra-orthodox social actors are now more likely to employ democratic ideas, such as the right to religious freedom. This change has had massive implications. Strictly religious reasoning may appeal to a small public—only to those who believe in the importance of religious edicts and teachings. It would most likely fall short of convincing secular and traditional (Masorti²⁴) Israelis to identify with the views of the ultra-orthodox community. In contrast, using a liberal reasoning that stresses the importance of cultural sensitivity and the right to religious freedom could have the power to convince a much larger audience.

By using this type of language, the ultra-orthodox community can influence more people to view issues of public policy in accordance with religious beliefs. This is exemplified in a poll from 2022, which found that 22% of secular Jewish Israelis and 60% of traditional Israelis supported the claim, “It should be possible to segregate between men and women in certain times and places, to allow participation of religious and ultra-orthodox people”²⁵. In other words, many non-religious Israelis are willing to use religious principles to shape the public sphere, when this is phrased as an issue of cultural sensitivity. It follows that these people would also be less likely to support the Supreme Court in decisions that disregard such cultural sensitivity. The framing used by the ultra-orthodox community against Supreme Court decisions has become more focused on convincing non-religious Israelis than it has been previously. This adjustment may allow for their critiques of the court to have more influence and make the actions of the court much more likely to be regarded as inappropriate, or even outright unacceptable, in the eyes of people outside of the ultra-orthodox community, thereby further expanding the erosion of trust in the court.

Thus, leaders within the ultra-orthodox community are another example of an important social actor that has changed the way that it relates to the Supreme Court. It should be noted that, in the case of the ultra-orthodox community, the increased political involvement of the court did play an important role by making the court more likely to be perceived as a threat by ultra-orthodox leaders, as it had indeed become much more entangled in public debates regarding the relationship between religion and state. Therefore, ultra-orthodox leaders had good reason to adapt their reactions to the court’s decisions to be more persuasive in the eyes of the general Israeli public. In that sense, the “political involvement” theory does lend an important lens to understanding their actions. However, this does not detract from my general argument, namely that the actions of interested social actors were, and still are, essential to the process of dismantling the general goodwill that the Israeli public held towards the Supreme Court.

Conclusions and Discussion

In this article, I argued against the claim that the political involvement of the Israeli Supreme Court is the sole reason that this institution has been losing favor in the eyes of the Israeli public. I showed that this theory cannot explain the timing of the changes in public opinion, and does not account for the low levels of trust that are apparent today, even though the Supreme Court is now less activistic than it was during the 1990s and early 2000s. Instead, I argued that the actions of other social actors were a necessary mediating mechanism to influence public opinion. I focused on two examples of such social actors: the actions of commercial television channels and leaders of the ultra-orthodox community. Leaders of the ultra-orthodox community changed the framing of their critiques by increasingly relying on liberal or democratic reasoning. This type of narrative is more likely to convince non-religious Israelis to distrust the court and has most likely had a major role in changing public opinion on the matter.

Despite centering my argument on the ultra-orthodox community, this is merely one example of many different social actors that have taken part in this process. However, this example does clearly illustrate that a shift has occurred both in the way that social actors are reacting to Supreme Court decisions and in the tools they are employing to contest this institution. To truly comprehend the reasons behind falling levels of support for the Supreme Court, we must focus on the actions of other social actors, giving them just as much attention as the actions of the Supreme Court itself, if not more so.

 The opinions and findings expressed in this Brief belong to the author exclusively and do not reflect those of the Y&S Nazarian Center for Israel Studies at UCLA.

1. Jeremy Sharon, “Levin Unveils Bills to Remove Nearly All High Court’s Tools for Government Oversight,” Times of Israel, January 11, 2023, https://www.timesofisrael.com/levin-unveils-bills-to-weaken-top-court-enable-laws-to-be-immune-to-judicial-review/.

2. Amir Fuchs, “The Override Clause Explainer,” Israeli Democracy Institute, November 11, 2022, https://en.idi.org.il/articles/46387; Amichai Cohen, Milhamot HaBagatz: HaMahapecha Hahukatit Umahpechat Haneged [The Supreme Court Wars: The Judicial Revolution and the Counter-Revolution] (Kineret, Zmora, Dvir, 2020); Guy Lurie, “We Already Know the Future of Israel’s Courts. It’s Not Good.,” Israeli Democracy Institute, February 20, 2023, https://en.idi.org.il/articles/47978; Amichai Cohen and Guy Lurie, “Appointment of Judges to High Courts in Democratic Countries: A Comparative Study” (Israeli Democracy Institute, April 4, 2023), https://en.idi.org.il/articles/48993.

3. According to the Israeli Democracy Institute, 70% of the public expressed trust in the Supreme Court in 2003, while only 41% of Jews and 49% of Arabs did so in 2021. See: Asher Arian et al., “The 2005 Israeli Democracy Index: A Decade after the Assassination of Prime Minister Yitzhak Rabin,” 2005, https://en.idi.org.il/media/6303/theisraelidemocracyindex2005.pdf; Tamar Hermann et al., “The Israeli Democracy Index 2021 - Selected Findings” (Israeli Democracy Institute, 2021), https://en.idi.org.il/media/17276/final-madd-d2021-eng_web.pdf. Another study has extended these findings, and shown that the decline in trust began in the 1990s, and cannot be explained by a general decline in trust of institutions: Aharon Garber and Yehonatan Givati, “How did the Constitutional Revolution influence trust in the court [Keitzad Hishpi’a HaMahapecha HaHukatit al HaEmun BeBeit HaMishpat],” Mishpatim 53 (2023), https://lawjournal.huji.ac.il/article/12/1880 [In Hebrew].

4. Daniel Friedmann, The Purse and the Sword: The Trials of Israel’s Legal Revolution (Oxford University Press, 2016); Menachem Mautner, “Israel’s 1977 Upheaval and the Supreme Court,” Israel Affairs 24, no. 6 (2018): 1033–49; Nir Kedar, “Interpretive Revolution: The Rise of Purposive Interpretation in Israeli Law,” Tel Aviv University Law Review 26 (2002): 737.

5. Garber and Givati, “How did the Constitutional Revolution influence trust in the court [Keitzad Hishpi’a HaMahapecha HaHukatit al HaEmun BeBeit HaMishpat].”

6. Friedmann, The Purse and the Sword: The Trials of Israel’s Legal Revolution.

7. Friedmann.

8. Garber and Givati, “How did the Constitutional Revolution influence trust in the court [Keitzad Hishpi’a HaMahapecha HaHukatit al HaEmun BeBeit HaMishpat]”; Arian et al., “The 2005 Israeli Democracy Index: A Decade after the Assassination of Prime Minister Yitzhak Rabin”; Hermann et al., “The Israeli Democracy Index 2021 - Selected Findings.”

9. Or Bassok, “Television Coverage of the Israeli Supreme Court 1968-1992: The Persistence of the Mythical Image,” Israel Law Review 42, no. 2 (2009): 306–61.

10. Or Bassok, “The Israeli Supreme Court’s Mythical Image - A Death of a Thousand Sound Bites,” Michigan State International Law Review 23 (2014): 39–105.

11. Eli Tavor, “A Restriction of the Halacha [Sayig LaHalacha],” Yedioth Ahronoth, May 24, 1988.

12. David Golan, Hayim Shibh, and Tamar Trabelsi, “The Inclusion of a Woman in Selecting the Rabbi of Tel Aviv Will Be Decided Today [Shituf Isha BeBhirat HaRav HaRashi LeTel Aviv Yuchra Hayom],” Yedioth Ahronoth, May 23, 1988.

13. Israel Eichler, “The Sabbath will win [HaShabat Tenazeach],” Yedioth Ahronoth, April 14, 1997. “הדורסנות של הכפייה החילונית שמה ללעג את היומרה לדמוקרטיה ולחופש דת”

14. For example, women cannot be elected as members of Knesset in ultra-orthodox parties, including the party that Israel Eichler himself is a part of.

15. These decisions included the following: instructing the religious councils of several cities to allow the inclusion of reform and conservative members; directing the Knesset to create legislation regarding the enlistment of ultra-orthodox yeshiva students into the army; and allowing people who had converted to Judaism through reform or conservative institutions to be considered Jewish by the state. Rami Hazut, “The Rulings that Angered the Ultra-Orthodox [HaPsikot SheOreru et Za’am HaHaredim],” Yedioth Ahronoth, February 10, 1999.

16. Rami Hazut, Tova Tzimuki, and Edna Adato, “The Ultra-Orthodox are Threatening to Rebel [HaHaredim Meaymim BeMered],” Yedioth Ahronoth, February 10, 1999.

17. Zvi Zinger and Itamar Eichner, “Rabbis are calling for a quiet demonstration [HaRabanim Korim LeHafgana Shketa],” Yedioth Ahronoth, February 14, 1999.

18. The reasoning for their refusal was that Ashkenazi and Sephardi religious customs are different, and therefore segregating the two populations should be allowed in religious schools.

19. Shmulik Grossman, “Turmoil and crying during the arrest of parents from Emanuel, mothers didn’t show up [Hamula UBechi BeMaatzar Horey Emanuel, Imahot Lo Hegiu],” Yedioth Ahronoth, June 17, 2010, https://www.ynet.co.il/articles/0,7340,L-3906893,00.html. “מחזה נורא שמתאים למשטרים אפלים בהיסטוריה, לא למדינה מודרנית"

20. Grossman. “לשם שמיים”

21. Itzhak Tessler, Yaacov Nizhia, and Atila Shomfalvi, “The ultra-orthodox students are enraged: ‘It’s not integration, they’re trying to make us less religious’ [HaStudentim HaHaredim Zoamim: ‘Ze Lo Shiluv, Menasim Lahhfoch Otanu LePachot Haredim’],” Yedioth Ahronoth, July 13, 2021, https://www.ynet.co.il/judaism/article/bymtkxjp00.

22. Tessler, Nizhia, and Shomfalvi.

23. Tessler, Nizhia, and Shomfalvi.

24. Many Israelis identify themselves as “traditional”, Masorti, in Hebrew. There is no strict definition of the term, but it usually means that people view certain religious traditions as important, but don’t lead a religious lifestyle for the most part.

25. Shmuel Rozner, “Can we compromise on gender segregation? [Haim Efshar Lehitpasher Al Hafrada Migdarit?],” Kan Website, November 20, 2022, https://www.kan.org.il/content/kan-news/opinions/247048/ [In Hebrew].