DR Faculty Seminar in Israel–The Israeli Supreme Court

During our last day in Israel we visited the Israeli Supreme Court. The building was built in 1992, and, as with all national institutions in Israel, it is located in West Jerusalem. The building was intended to combine both old and new and indoors and outdoors. This means there is Jerusalem stone throughout the building, combined with windows to let in natural light, and straight lines to represent the law and circles to represent justice. These ideas are taken from Psalms as “You are righteous…and your laws are straight (Psalms 119:137) and “He leads me in circles of justice (Psalms 23:3).

Due to the amount of light and windows, the building leaves an impression of being an open institution. This impression was further supported by the large numbers of people watching the various proceedings going on while we there.

The Court, unlike the US Supreme Court, does not hear cases as a single panel, but instead the fifteen Supreme Court justices break into smaller panels of 3, 5, or more, depending on the case. Breaking into smaller panels also helps the Court to manage its large caseload. For example, last year the Court heard 10,000 cases (a number that far exceed the US Supreme Court’s caseload, for a country that is far smaller than the USA).

As a result of hearing cases in panels, the Supreme Court needs multiple courtrooms and has courtrooms of different sizes. On the day we were there, the largest courtroom was hearing a case about asylum seekers from Africa. The courtroom was packed with an audience that appeared to include both Africans and Israelis. Due to limited seating we went in small groups and watched parts of the proceedings. The hallway outside the courtroom was full of apparent litigants and their lawyers. Overall, the atmosphere seemed more like what I would expect at a lower court level with the level of activity both inside and outside the courtrooms.

Our tour included a view into the library, which is in a central location, and planned to be visible to all who enter. The library includes a significant comparative law collection as the Israeli Supreme Court often looks to law from other countries, particularly other common law countries (such as the United States).

After our tour of the building and watching one of the cases, we met with Justice Asher Grunis, President of the Israeli Supreme Court from 2012-2015. Justice Grunis is now retired. Israel has a mandatory retirement age of 70 for all judges (and other professionals). One can only imagine what the US Supreme Court would look like if such a mandatory retirement age were enforced!

Justice Grunis spoke with us about how judges are selected, including Supreme Court judges, and the laws in force. Justice Grunis spoke about the importance of comparative law for the Israeli Supreme Court and how common it is to look beyond Israel in deciding cases. One small indication of the importance of this is the Foreign Clerkship program. The Israeli Supreme Court accepts clerks from other countries to help in comparative law research. Several of the current foreign clerks who were from the USA joined us for the session with Justice Grunis. It is a volunteer program, but for those who are interested in more information, or in applying, the information is available here

Justice Grunis also spoke to us about dispute resolution in Israel. One process he described was one in which the parties agree that the court will issue a compromise judgement—something that is allowed by statute. Justice Grunis thought that this was a “fantastic tool for judges” as it gives them another option in terms of how to resolve the case. This was one of the many fascinating tid-bits that we heard about during our trip that left many of us wanting more information and wanting to dive into more depth to find out how this process is working in practice including how frequently it is used.

Justice Grunis also spoke briefly about plea bargaining. As in the United States, plea bargaining is frequently used in Israel. As Justice Grunis described, in the 1970s the court didn’t like plea bargaining, but “now we can’t rid of plea bargaining” due to the large number of cases that the courts are processing through plea bargaining. Justice Grunis, in response to a question did say that the Israeli Supreme Court (similar to the United States Supreme Court) hasn’t yet taken a hard look at prosecutorial behavior in plea negotiations or placed any limits on their tactics. Justice Grunis expressed concern, as is often expressed in plea bargaining discussions in the USA, that innocent people may be pleading guilty.

Justice Grunis also talked about how the Israeli Supreme Court is often hearing cases that are at the center of public attention and political issues. In that discussion, Justice Grunis explained how sometimes the smartest decision is not to decide, citing the example of a case involving the threshold level for representation in the Knesset (the parliament). The concern raised was that the threshold of 3.5% of the vote (nationwide) was discriminating against Arab-Israelis. After the election, it was clear that if the threshold had gone down to the requested 1%, there would have been fewer Arab-Israeli’s elected to the parliament.

Just one of example of how sometimes, perhaps, it is good to wait and gather more information, and not rush to make a decision.