The Consequences of Judicial Activism

Evelyn Gordon
Commentary/Contentions
28 May '10

Israel’s Supreme Court lambasted the government this week for disobeying a temporary injunction to stop work on a West Bank road. This isn’t the first time the court has complained of governmental noncompliance with its orders; as various commentators have noted (here and here, for instance), noncompliance is rapidly becoming routine. Yet both court and commentators tend to overlook the court’s own responsibility for this problem.

In March, Haaretz published a list (Hebrew only) of nine court orders the government had yet to obey. They included orders to build 245 new classrooms in East Jerusalem, to reinforce every school within rocket range of Gaza against rockets, to build a high school in an Arab village, to relocate the security fence near the West Bank village of Bili’in, and to do the same near the village of Azzoun.

These rulings have one thing in common: each would cost hundreds of millions of shekels to implement; collectively, they would cost billions. Thus to obey them, the government would have to slash billions of shekels from other parts of the budget. And while I favor budget-cutting, most quick and easy big cuts would have disastrous consequences: slashing welfare, say, or canceling all army training exercises. Productive cuts, such as eliminating unnecessary layers of civil-service bureaucracy, are neither quick nor easy, as they would entail major fights with powerful government unions. Thus in the real world, there is no practical way to promptly obey all the court’s rulings.

But aside from the practical problem, these rulings embody a more fundamental problem: the judicial usurpation of government prerogatives. Clearly, such rulings reduce the government’s ability to set its own budgetary priorities, but the problem goes way beyond budgets.

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