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Strategic considerations behind
normative explanations: Lessons
from Israel’s Supreme Court
expropriations case: A rejoinder
to Barak Medina
Haim Sandberg*
In my article on the Israeli Karsik case,1 I claimed that covert strategic considerations
influenced the Israeli Supreme Court ruling. Although the Court ruled that, “in principle,” upon the termination of a public purpose, the land that had been expropriated
from its owners should be returned to them, it refrained entirely from deciding this and
other cases, leaving the implementation of the decision up to the legislature. The Court
remained indifferent to the legislative process, even when it became clear that the new
law stood almost totally in contradiction to the principle as established, in letter as well
as in spirit. It also refrained from challenging the constitutionality of the law.
There are some alternative explanations that may resolve this contradiction. The
first explanation is that, from the outset, the Court may not have meant the directive
it gave. The first explanation I proposed in my article (a compromise among judges,
the majority of whom disagreed with the practical implementation of the principle)
points to this first possibility. According to the second explanation, the Court refrained
from deciding out of fear that it might damage public support.
Barak Medina does not accept either of these two explanations, proposing instead
a new normative justification for the Court’s modus operandi: the Court acted in an
“advisory” capacity to the legislature, with the intention of protecting its supremacy.2
In this rejoinder, I want to clarify my argument and then address Medina’s proposal.
My article starts off not from a normative, but rather from a realistic point of view.
I attempt to describe the manner in which the Court acted and do not refer to the question
* Associate Professor, The Haim Striks School of Law, College of Management, Rishon Le-Zion. Email:
[email protected].
1
Haim Sandberg, Strategic Considerations behind Normative Explanations: Lessons from Israel’s Supreme Court
Takings Case, 11(3) Int’l J. Const. L. 751 (2013).
2
Barak Medina, Strategic Considerations Behind Normative Explanations: Lessons from Israel’s Supreme Court
Expropriations Case: A Reply to Haim Sandberg, 11(3) Int’l J. Const. L. 771 (2013).
I•CON (2013), Vol. 11 No. 3, 779–782doi:10.1093/icon/mot027
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I•CON 11 (2013), 779–782
whether the Court’s actions were correct. As I wrote in the original article: “Courts do
not usually reveal their strategic considerations because their existence seems to undermine the idea of the rule of law and undermines the integrity of the courts.”3 The most
common ways of exposing such covert considerations are by means of both empirical
and historical research.4 The findings of the former are sometimes considered too indirect,5 while the latter needs documentation that comes to light only after many years,
if at all. My article proposed another way of discovering the Court’s strategic considerations, namely, by pursuing “indirect minimal traces left by the Court’s patterns of
behavior that may indicate the existence of covert considerations. . . .”6
The Karsik case left a trail of such circumstantial clues which I indicated in my art­
icle and I lack the space to reemphasize. Medina does not disagree on some of them.
For instance, he explains that the actual deferment of the date of a judicial decision,
while offering the legislature an opportunity to implement or execute that decision, “is
aimed at increasing the (normative) legitimacy of judicial supremacy.”7 He states that
such an adjournment is an option especially suited to cases in which it is necessary
to “mitigat[e] the side-effect of silencing non-judicial constitutional debate.”8 What
are those side-effects, if not considerations of public support? The Karsik case gave us
an even stronger clue of covert considerations on the part of the Court: the avoidance
(as distinct from adjournment) of any decision whatsoever. There can be no question
that under Israeli law, a court cannot avoid making a determination. It must decide.
Furthermore, there is no other example of the absence of any decision. The fact that,
in the present case, there was no decision at all is exceptional.
Medina also feels the need to explain this: he claims that the Court gave “general”
advice to the legislature, which did not obligate that body to follow any specific course.
Medina’s explanation is a normative one: he claims that in some cases this might be
a desirable technique and points out the advantages. Medina believes that the Court’s
view of its role is a theoretical one which is not and in this case was not influenced by
public support. Thus he reflects the position that is prevalent among Israeli judges. On
her retirement, Justice Dorit Beinisch (former President of the Supreme Court) stated:
“Woe betide us if, in writing a verdict, a judge should think of the impact his ruling
will have . . .”.9
However, does this normative explanation actually reflect the Court’s train of
thought in the concrete case? Did the Court think this was an opportunity to accept
the normative approach proposed by Medina and act in “advisory” capacity? Although
I cannot dismiss this hypothesis, it does not strike me as very likely. Medina actually
Id., at 758.
Forrest Maltzman, James F. Sproggs II & Paul J. Wahlbeck, Crafting Law On The Supreme Court—The Collegial
Game 4–5 (2000) (An empirical and historical study on the US Supreme Court).
5
Barry Friedman, The Politics of Judicial Review, 84 Tex. L. Rev. 322, 323 (2005).
6
Sandberg, supra note 1, at 758.
7
Medina, supra note 2, at 776.
8
Id., at 777.
9
Noam Sharvit, Zohar Shahar Levi, The Supreme Court President is Heading the Committee for Nomination of
Judges, NRG-Maariv (Feb. 6, 2012) (Hebrew), http://www.nrg.co.il/online/1/ART2/334/253.html.
3
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Lessons from Israel’s Supreme Court expropriations case: A rejoinder to Barak Medina
781
admits as much when he calls it an “unintended” result.10 The importance that the
Court assigned to its initial “principled” decision, the text of that decision, and even
the exceptional translation of the judgement into English—none of these indicate that
the intention was to make do with giving “advice.” Nor is it especially plausible that
the court meant to bring about such a revolutionary change without addressing it at
length. A large portion of the judgement addressed the constitutional analysis of a
different revolutionary change: the status of proprietary rights.
From a number of different ways of implementing the judicial principle, it is more
accurate to view the initial decision in the Karsik case not as “advice” but as a fundamental guideline with a clear principle of restitution, with the court leaving only its
implementation to the legislature; or, as Medina put it, setting “a ‘domain’ for the doctrine’s
possible implementation” (emphasis added).11 And this is, indeed, how the initial Court
decision appeared prima facie. It is precisely here that hints of other discernible considerations can be found. If the Court did intend a particular direction, even if not the exact
manner of its implementation, it might be expected that it (the court) would not accept
outright a legislative procedure that utterly deviates from the outlines it directed.
Medina claims that the Court’s acceptance of the existing legislation shows that
the legislator did choose one of the options set before it. However, with the greatest
respect, I differ from this opinion. The draft bill and the resulting new legislature did
not allow for almost any option of restitution of the land when the public purpose
ceased to exist. It was not relevant to even one of the dozens of pending cases before
the Court, until the matter was abandoned by the Court. It utterly deviates from the
outline denoted by the Court in its principal ruling. It might have been expected that
the Court would not remain indifferent to seeing the principle determined by it so
undermined. Even in an “advisory” capacity, one would have expected some reaction,
however minimal, to the appropriateness of this direction. But no such reaction was
forthcoming and the Court appeared to be struck with paralysis. It is this behavior that
raises questions about its motives. There is a clear contradiction here between the text
of the judicial directive and the judicial acceptance of seeing that directive thwarted.
Such a contradiction stands out in particular if one draws a comparison between
the Court’s conduct in the Karsik case and the behavior of the Court in two similar,
later cases. In the Even Zohar case, which was covered in my original article,12 the
Court did recommend that the legislator change the law, but dismissed the case. For
non-binding advice to be given to the legislator there is no need to leave a case pending
and cause a delay of justice for the parties. Indeed, one might also question the normative aptness of a judicial advice which in fact results in a delay of justice.13
An additional, more recent example of a deferred decision is found in the case of the
evacuation of the West Bank outpost of Migron. In this case, Palestinians pressured the
Israel Government to evacuate Jewish settlers from their homes, which they claimed
had been built on their land. In this case too, the court tried hard to avoid making a
Id., at 777.
Id., at 771.
12
Sandberg, supra note 1, at 767.
13
Id.
10
11
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I•CON 11 (2013), 779–782
decision but when it did finally rule in favor of the petitioners, it nevertheless repeatedly
extended the time allocated to the government to arrange the evacuation.14 Here too, it
was clear that the government was averse to acting, and the more time had elapsed, the
clearer the signs were of the desire to avoid implementation and achieving some sort of
compromise with the settlers.15 There was also a change in circumstances, as there were
claims that some of the land had been purchased by the settlers. Nevertheless, in this
case, despite the public implications, the Court stood by the principle it had determined.16
A similar approach might have been anticipated in the Karsik case. One might have
expected that if the Court were to stand by its principles, it would have made some reference, even if only in the form of “advice,” to the divergent direction taken by the legislator. It did not do so. It is true that there were some differences between the cases. In
the case of Migron, a decision had already been made and the Court merely delayed its
implementation; the state was less strongly opposed to the judgement; the injury to the
proprietary owners was more recent. Nevertheless, in the Karsik case, there was also a
decision with a specific direction and the injury to proprietary rights was not necessarily any less severe. Even after many years, expropriation is still an injury to private proprietary rights and certainly does not constitute a ‘lawyerly,’ mostly technical issue,”17
as Medina describes it. Why then did the Court hold back in one case and move ahead in
the other? Was there some change in the analytical perception of its role as “advisory”?
The explanation offered by Medina is a possible third option for resolving the contradiction between the text of the judicial directive and the judicial acceptance of having that directive blocked. The Court may have intended to create a new normative
approach by giving amorphous advice devoid of any practical content. This explanation does not necessarily contradict my alternative explanations. Readers are invited
to judge for themselves which is more reasonable.
In the final analysis, the gap between my opinion and Medina’s is not all that great. We
both suggest assumptions that seek to explain the Court’s conduct. Neither of us is satisfied merely with the written judgement. This is the central lesson to be gleaned from the
article: it recommends rising above the text of the judgement and arriving at conclusions
from the exceptions to the Court’s regular modus operandi, without a long, drawn-out wait
for the “smoking gun” in the form of a faded diary found in some judge’s estate …
HCJ 8887/06 Al-Nabut v. Minister of Defense (2011) (Isr.), available at http://elyon1.court.gov.il/
files/06/870/088/n45/06088870.n45.htm (Supreme Court orders evacuation).
15
HCJ 8887/06 Al-Nabut v. Minister of Defense (March 2012) (Isr.), available at http://elyon1.court.gov.
il/files/06/870/088/c49/06088870.c49.pdf (Supreme Court rejects the government’s suggested compromise). See also Chaim Levinson, Israel Supreme Court Rejects Compromise Deal on West Bank settlement
of Migron, Ha-aretz On-line (Mar. 25, 2012), http://www.haaretz.com/news/national/israel-supremecourt-rejects-compromise-deal-on-west-bank-settlement-of-migron-1.420631 (Reporting the decision).
16
HCJ 8887/06 Al-Nabut v. Minister of Defense (Aug. 2012) (Isr.)
http://elyon1.court.gov.il/files/06/870/088/c61/06088870.c61.pdf (Third final evacuation order).
See Embassy of Israel in The Netherlands, High Court of Justice Orders the Eviction of the Migron Outpost,
Legal Department Newsletter (Sept. 13, 2012), http://embassies.gov.il/hague-en/NewsAndEvents/Pages/
Newsletter-Legal-Department0919-872.aspx (Reporting the decision and the evacuation process).
17
Medina, supra note 2, at 773.
14