Indicative of a trend: Why did the government refuse to send a representative to the Supreme Court?

More than the question of whether the government should have appeared for the hearing in the Supreme Court regarding the "Draft Dodgers Law," one must ask how we reached a situation where the government believes there is no longer any point in defending a law it promoted before the Supreme Court.

For decades, an unwritten constitutional convention existed in Israel. Governments, even when they sharply disagreed with Supreme Court intervention in political issues, continued to appear before it and defend their decisions. They did not do so because the court stands above them—in a democratic regime there is no such hierarchy between the branches of government—but because they believed that the legal process is part of the common rules of the game, and that even when the chances are low, there is still a point to debating and arguing, to persuading and being persuaded.

However, for years the Supreme Court has steadily expanded the areas of judicial review: from administrative decisions to ordinary legislation, from there to amendments to Basic Laws and to the Basic Laws themselves, and up to the very boundaries of the constituent authority. Each of these steps received its own legal justification. But the important question is not the legitimacy of each and every step, but their cumulative effect. As the court activated the constitutional "emergency brakes" again and again, even in cases that many felt did not justify it, it gradually eroded the institutional capital upon which its legitimacy rested.

The government's decision not to appear reflects a much more troubling reality: the government has reached the conclusion that continued participation in the process is no longer a sincere attempt to persuade, but rather granting legitimacy to a mechanism that, in its view, has expanded the boundaries of its intervention beyond what is appropriate. The very fact that a government in Israel has reached such a conclusion testifies to a deep constitutional crisis.

The central question

A court does not exist solely by virtue of the Basic Law: The Judiciary. It also exists by virtue of the trust of the other branches of government that it is appropriate to continue to entrust it with the decision in constitutional disputes. The status of the court ultimately rests also on the ongoing willingness of the elected branches to accept its status as the arbiter in constitutional disputes. When this willingness is eroded, the practical legitimacy for exercising its power is eroded with it. Therefore, the central question is not why the government did not come to the Supreme Court—the question is how we reached a situation where the government ceased to believe that the legal process is still capable of fulfilling its purpose.

Brakes do not stop braking in one day. They wear out from overuse—the moment one stops using them in moderation and with wisdom. So too with the Supreme Court. It did not lose the government on the day it did not appear for the hearing. It lost it much earlier—the moment the brakes ceased to serve as a tool of restraint and began to determine the direction of travel.