Questions Being Asked: The Supreme Court
-
-
-
-
-
How Does It Function Without a Constitution?
INTRODUCTION
Note to educator: These introductory conversations are designed to serve as a reference point for learners to consider the role of supreme courts in general, as well as what makes the Israeli Supreme Court unique.
Before introducing specific content about the role of Israel’s Supreme Court or any of the activities below, ask learners:
- What do you know about the U.S. Supreme Court? What is its role in American democracy?
- What do you think is the relationship between the U.S. Supreme Court and other branches of government?
- What does the Supreme Court do?
- What are some controversies involving the Supreme Court?
Basic Law: The Judiciary
Learners should read excerpts from Basic Law: The Judiciary. Explain that this Israeli law defines the responsibilities and authorities of the Supreme Court and other judicial bodies. After reading the excerpts in groups:
- Encourage learners to list all of their questions (there should be plenty considering the technical jargon of the law). Clarification questions, substantive questions, and all other questions are important!
- Ask learners to consider some of the initial differences they can identify between the role and duties of the Israeli Supreme Court, as laid out in this Basic Law, and the U.S. Supreme Court.
- Ask learners to consider what they think is missing from the law.
At this point, you can choose to share portions (or all) of the FAQ: The Supreme Court.
PERCEPTIONS OF THE SUPREME COURT
Note to educator: In this activity, learners explore perceptions of the Supreme Court held by various groups of Israelis, particularly regarding its role in Israeli democracy.
HISTORICAL CONTEXT
Present learners with the following brief description of the Government’s 2023 efforts to overhaul the judicial system and the corresponding protest movement:
In 2023, Israel’s Government proposed a set of reforms to the judicial system. These reforms sought to curb the power of the Supreme Court by, for example, legislating that the Knesset could override Supreme Court decisions and control the selection process for new Supreme Court justices. In the end, only one of the reforms (arguably, the least significant one) was passed and a few months later the Supreme Court struck down the legislation as unconstitutional. Throughout the year (before October 7), opponents of the reform plans launched weekly protests and occasional strikes; a pro-reform movement, albeit less active than the anti-reformers, also emerged. For more information, see the latter half of the FAQ: The Supreme Court.
Encourage learners to look at the images below. The first images are from the protests against the judicial reforms.
DISCUSSION
Ask learners:
- What do you think the Supreme Court symbolizes to these groups?
- What do you think is the role of the Supreme Court to these Israelis?
- What is the relationship between the Supreme Court and Israeli democracy, according to the protesters?
Note to educator: Two overlapping points, among any others that are raised, to highlight are the importance of maintaining a strong Supreme Court in preserving Israeli democracy and the perceived role of the Supreme Court as a guarantor of minority rights.
Next, show learners these images of pro-reform activists. Ask:
- What do you think the Supreme Court symbolizes to these groups?
- What do you think these Israelis believe the role of the Supreme Court should be?
- What is the relationship between the Supreme Court and Israeli democracy, according to the protesters?
Note to educator: Some important points to highlight include: the need to reform the Supreme Court in order to strengthen Israeli democracy, the notion that the reforms are justified given that a democratically elected Government proposed them, and the infringement of the Supreme Court on religious rights.
CLOSING DISCUSSION
Do you see any overlapping messages or values shared by pro-reform and anti-reform activists?
DIVERSITY OF THE COURT
Note to educator: This activity exposes learners to a practical critique of the Supreme Court: its lack of diversity. The discussion will encourage learners to think symbolically and practically, reflecting on why diversity among Supreme Court justices is symbolically significant for Israeli democracy and on the practical process to ensure this diversity.
RESEARCH AND DISCUSSION
Have learners read this article about the roles and responsibilities of the Supreme Court.
Ask learners:
- What are the main points?
- What does the author identify as the roles and responsibilities of the Supreme Court?
- Diversity can have multiple meanings. Can you identify some of them?
- Why does the author think that diversity on the Supreme Court is important? Do you think diversity is important to Israeli democracy? Why or why not?
Now, introduce learners to Israel’s Judicial Selection Committee, using this document.
Ask learners:
- What, in your opinion, are the pros and cons of the current Judicial Selection Committee?
- Would you recommend changes? If so, what changes would you recommend? If not, why not?
In wrapping up, explain to learners that changing the makeup of the selection committee was one of the main reforms proposed in 2023. In the absence of a completed constitution, the process for selecting judges can continue to be debated and amended. This leaves room for both flexibility and instability.
CLOSING DISCUSSION
What do you see as the pros of this flexibility and the cons of this instability?
FREE SPEECH AND THE SUPREME COURT
Note to educator: Learners will explore one of the expanded roles that the Supreme Court gave itself in the 1990s. Learners will examine how, in the absence of a completed constitution, the Supreme Court (not without criticism) assumed the role of free speech guarantor. This in-depth activity may require some preparatory homework for learners.
OPENING ACTIVITY
Learners will be participating in a mock Supreme Court hearing; one group will posit that freedom of speech is protected by the Basic Law: Human Dignity and Liberty, and one group will posit that it is not guaranteed (for more information on Basic Laws, see this FAQ).
Note to educator: Encourage learners to focus both on what is written and what is not written. That is, beyond the text of the Basic Law itself, learners should also consider whether or not they think the Supreme Court in a democratic country should protect free speech and/or whether the Supreme Court (a non-elected body) should have the power to interpret its own responsibilities and assign itself powers.
RESEARCH AND DEBATE
Have learners read Basic Law: Human Dignity and Liberty with an eye towards defending their assigned position in the hearing.
- This can be done before the session at home or at the beginning of the session.
Format of the debate:
- An opening statement that concludes with a question;
- A few rounds of rebuttal to the other group’s statements;
- Closing remarks that include three questions left unanswered by the opposition.
At the end, after sharing your ruling as a Supreme Court justice, explain to learners that this Basic Law is currently the central piece of legislation used by the courts to protect free speech. This is but one example of how the Supreme Court has taken on a unique—and, according to some, outsized and unfair—role in preserving Israeli democracy in the absence of a completed constitution.
THE STATUS OF BASIC LAWS AND THE ROLE OF THE SUPREME COURT
Note to educator: This activity can be used as a substitute for “Free Speech and the Supreme Court.” It explores the expanded role that the Supreme Court interpreted for itself during the 1990s’ “Constitutional Revolution.”
HISTORICAL CONTEXT
Begin by explaining to learners that until 1995, Basic Laws were not interpreted by the Supreme Court to hold higher status than other laws. In other words, Basic Laws could not overrule other laws. (If learners need a refresher on Basic Laws, you can share information from the second framing activity or here.)
DISCUSSION
Ask learners:
- Does this surprise you? Why or why not?
- Does this seem to match up with the intentions of the Harari Resolution (explained in the FAQ: Basic Laws)?
SMALL GROUP DISCUSSION
With this framing in mind, in small groups, learners should read the following passages from the 1995 “United Mizrahi Bank” Supreme Court ruling and an explanation from expert Suzie Navot. For details about the case and the ruling, see here.
- “The Declaration of Independence indicates that the source of the Knesset’s authority to adopt a constitution is its constituent power. The fact that there have been delays in the process of adopting a constitution… does not change or influence the source of the [Knesset’s] authority in advancing constitutional legislation”
- “The Knesset is endowed with constituent authority. With that authority, the Knesset enacted a constitution for Israel. It did so chapter by chapter… Each of the basic laws constitutes a chapter in the constitution of the State of Israel… Thus, the State of Israel has a constitution—the basic laws.”
- “Often referred to as heralding the ‘constitutional revolution’, the United Mizrahi Bank judgment laid down not only the… supremacy of basic laws according to the doctrine of constituent authority, but… the concept of judicial review [for the Supreme Court to decide whether laws passed by the Knesset were “constitutional”—whether they contradicted any of the Basic Laws].” (Navot)
Ask learners:
Consider and discuss the following questions in small groups:
- What sources does the Supreme Court refer to in its ruling?
- What is a Basic Law, according to the ruling?
- How did the Supreme Court’s role and authority change, according to Navot?
- Based on these passages, why do you think some Israelis would call the Supreme Court an “activist” court? Why might some Israelis oppose the precedents set by this ruling?
Reconvene as a full group to discuss these questions.
CLOSING DISCUSSION
What are the issues with considering Basic Laws equivalent to a constitution?
Note to educator: If learners are confused about the final two questions, explain that some of the main critiques of the Supreme Court and Israel’s current constitutional process and status are:
- Basic Laws do not cover all constitutional issues;
- Basic Laws can be passed, revised, and repealed without a supermajority;
- There is no deadline for the completion of the Israeli constitution;
- The status of Basic Laws as constitutional (that is, supreme to other laws) and the authority of judicial review was decided by the Supreme Court (not the Knesset).
אולי יעניין אתכם גם
You Might Also Like
TAGS