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The first chapter is an introduction to the concept of advisory dialogue. It also introduces the principal argument of this book that based on the Israeli experience, courts can better deal with such jurisprudence by adding advisory dialogue to their set of judicial review tools. Judicial review is needed, specifically in dealing with national security matters likely to provide more than a partial answer to the constitutional, institutional, political, and practical constraints that adjudicating national security matters, in particular in real time or in times of national crisis, impose on the courts. The second part of this chapter provides necessary historical and legal background on how the Israeli Supreme Court functions and on major events in Israel that affected Israel’s national security between 1995 and 2012, including the assassination of PM Rabin and the Second Intifada.

This chapter discusses how the Israeli Supreme Court’s discursive approach to judicial review highly influences the manner in which judicial proceeding are conducted. It shows that unlike the traditional view of a judicial proceeding, which sees the proceeding as a means to get to the truth, the Israeli case shows that the proceedings themselves are sometimes no less important than the outcomes, specifically when it comes to judicial review of military actions. The chapter then moves on to how the Court utilizes the messages it sends during times of emergency in order to enable it to time the exercise of full and comprehensive judicial review with regard to questions of national security at specifically convenient times, when the level of violence has decreased

This chapter begins the analytical and normative part of the book. It describes based on the findings in previous chapters how inter-branch dialogue in national security cases works. The chapter provides a repertoire of the dialogical techniques developed by the Israeli Supreme Court as well as its characteristics. It then argues that the main tactic developed by the Court to contend with the challenges associated with adjudication of national security matters is the intensive use of dialogue alongside of and, at times, as an alternative to conventional judicial review. It shows how by making itself available at any time to any person—whether it is a festival, holiday, day or night—and by its willingness to decide any national security issue, the Court made judicial review of national security matters in real time a possible solution.

This chapter discusses the benefits of relying on advisory dialogue. The chapter provides several strong arguments in favor of using advisory dialogue in national security cases. They include: advisory dialogue as a means to prevent conflicts among branches, the advancement of appropriate legislation, and the strengthening of democratic institutions through dialogue. Advisory dialogue facilitates the promotion of public discourse on fundamental questions and allows the Israeli Supreme Court and society to cope better with moral dilemmas. Advisory dialogue also allows the Court to transmit messages of varying intensity and to overcome disparities in application of its decisions. Last, advisory dialogue enables the Court to overcome the inherent difficulties of adjudicating on matters of national security.

This chapter describes the history, functions, and notable rulings issued by the Supreme Court of Israel. The Supreme Court, in addition to being the highest appellate court for civil and criminal cases, also serves as the court of original jurisdiction in matters regarding the legality of the actions of the state or other bodies and persons performing public functions. In this capacity, the Supreme Court expanded the protection of human rights in broad areas including freedom of speech and freedom of occupation. Notably, despite their ongoing friction with the Supreme Court and lower courts, the government and the Knesset displayed good judgment when it came to critical issues such as judicial independence, authority, and appointments. For its part, the classic Supreme Court respected the Knesset’s sovereignty and did not hand down rulings that were likely to incur the ire of the other branches of government. The legislative and executive branches almost always respected and acted in accordance with the high court’s decisions. Following the six day war, legal issues relating to the settlements in the areas conquered during the war came to be decided by the Supreme Court.

In quite an opposite manner to the previous chapter this chapter focuses on the disadvantages and risks that advisory dialogue could lead to. Among the risks mentioned in this chapter are the risks that promoting policy by means of advisory dialogue will harm the separation of powers or will harm the judicial procedure. There are also strong arguments regarding the low quality of advisory messages and the interference with the traditional role of the Executive specifically in times of national crisis. Last, in some cases the use of advisory dialogue by the Israeli Supreme Court does not necessarily advance human rights.

This chapter explores the abusive borrowing of an important set of concepts associated with political constitutionalism, or the idea that political institutions such as legislatures, rather than courts, should be chiefly charged with interpreting and enforcing the constitution. It shows how regimes in Hungary and Poland have relied heavily (and erroneously) on these theories to justify attacks on their judiciaries without seeking to develop the set of political and social preconditions which would be necessary for political forms of constitutional interpretation to make sense. It also shows how allies of Prime Minister Benjamin Netanyahu, in Israel, have (so far unsuccessfully) attempted to import the ‘weak-form’, dialogic, or New Commonwealth model of judicial review instantiated in Canada, which allows for a legislative override, in a context where the chief goal was immunizing the Prime Minister from ongoing criminal prosecution.

This chapter explores the Women of the Wall (WoW) struggle from various perspectives in order to provide a clear picture of this complex conflict. It opens with an in-depth Halakhic analysis of the religious-feminist challenge that the WoW pose to the patriarchy of mainstream Jewish Orthodoxy. It then situates the WoW struggle in the framework of Israel’s complex religion-state arrangement and critically examines the various rulings that the Israeli Supreme Court has issued on the matter (delivered in 1994, 2000, and 2003). Finally, it concludes with a survey of the recent dramatic developments of 2013–16: the reversal of the legal ban on the WoW’s manner of prayer, the “third plaza” plan, and the split within the WoW over the proper response to the “third plaza” plan.

This chapter focuses on the dialogue that takes place between the Israeli Supreme Court and the Attorney General’s Office, particularly the use the Court makes of dialogue with attorneys who appear before the Court on the State’s behalf. The intensive and intimate dialogue that the Supreme Court conducts with these attorneys is quite exceptional. It is doubtful whether any parallel may be found in other legal systems. As the chapter demonstrates, this mechanism enables the Court to influence decision-making processes in the Attorney General’s Office within a short time, as well as the application of Court judgments and policymaking in national security matters, without necessarily adjudicating that a policy is unlawful. A specific section of this chapter is dedicated to the way the Court utilized this dialogue to better oversee Shin Bet investigations, including in particular the discovery obligations of the prosecution over the collection of probative intelligence.

This chapter discusses several human rights cases in which the Supreme Court had played a central role. These cases often involve issues of religion and the state, which raises questions regarding women’s rights, the severe consequences of imposing religious law on the public at large, as well as issues of citizenship, nationality and Jewish identity. Furthermore, in Israel, the coalition system enables parties representing minorities to impose their will on the majority. Hence, time and again the Supreme Court has needed to protect the majority against the power wielded by minorities. In this vein, the chapter looks into notable cases falling under three categories: religion and the state, freedom of expression, and equality.

This chapter is the third chapter dealing with messages conveyed during the hearing of the case. It shows how the Israeli Supreme Court by deviating from its normal practice conveys messages to the Executive. The examples provided in this chapter are based on deviations from the Court’s practice on hearing theoretical questions or hearing a case dealing with a question already decided (res judicata). A specific case analyzed in great detail is the hearing on the targeted killing question. The chapter also discusses how the Court uses deviating from the structure of a hearing in a petition and the anticipated schedule as signaling, as well as messages sent in interim decisions.

This chapter and the following three chapters differ somewhat from the preceding ones. Although they still deal with messages conveyed in Israeli Supreme Court judgments, instead of focusing on the contents of the messages, these chapters will consider the ways the Court communicates with various parties addressed by the Court;s messages. This chapter discusses dialogue that the Court conducts in its judgments with the military. As will be demonstrated, such dialogue serves the Court principally to create an additional means of influencing policy in real time and during military campaigns that joins the other methods the Court has developed. The chapter provides several case studies that illustrate this dialogue and its purposes. Then the chapter analyzes the dialogue developed between the Court and the military during Operation Defensive Shield in 2002, Operation Rainbow 2004, and Operation Cast Lead in 2008.

This chapter looks at the ways in which the Supreme Court has intervened in the fight against terrorism, dealing with such topics as targeted killings, the demolition of terrorists’ houses and measures taken in the war against the Hamas terrorist regime in Gaza Strip. In the past the court refrained from intervening in cases relating to security; it now takes a radically different approach. The self-confidence Aharon Barak displayed in expanding the court’s powers in all areas was also displayed in this area. His working assumption was that security was no different from any other subject. The court had the power to exercise its discretion in every field, to examine whether decisions and actions made by the government and military were reasonable, and ostensibly to “balance” security needs with other interests, just as it did in every other area.

This chapter argues that the Supreme Court has elevated the position of the attorney general from the government’s counsel to its commander in chief by holding that his opinions are binding on the whole executive branch, including the government. The attorney general’s functions are to serve as the government’s legal counsel. Yet, as the chapter shows, the court has time and again tried to raise the attorney general to the position of Israel’s utmost authority, with only the Supreme Court above him. In addition, the attorney general’s power to issue orders to the elected government was augmented by another aspect of his power-his position at the head of the state prosecution. And while the attorney general does not hold formal powers in the area of legislation, his prosecutorial powers can create a de facto situation that makes it difficult to enact a law that he opposes.

Chapters 7 and 8 focus on how the Israeli Supreme Court communicates with other branches of government to influence how laws are applied. The discussion centers on strategies of influence applied without the Court’s intervention in constitutional questions or interpretation of statutes. The intention here is to present messages that the Court transmits regarding its expectation of how the State will apply a certain policy, even if the policy is recognized as lawful and even if the Court does not intend to intervene in how the authorizing law is interpreted. The two chapters provide two case studies, including the way the Court dealt with incitement to terrorism prior to and after the assassination of Prime Minister Rabin and house demolitions.

The Israeli Supreme Court conducts a dialogue via its judgments on national securityas well with petitioners and the human rights organizations (NGOs) representing them. This chapter is dedicated to this dialogue. It describes specific techniques used by the Court such as “invitations to override,” as well as the way the Court sets aside specific parts of its judgment to address these organizations, and provides examples of judgments in particular cases. It also shows how the Court encourages petitioners during military campaigns to bring the matter again when it feels that due to the intensity of the security situation, the time is not ripe for intervention.

This chapter addresses the Supreme Court’s invention of an Israeli constitution through the use of its powers of legal interpretation. Israel, as a matter of fact, has no official document enacted by the Knesset or any other authorized body labeled “constitution.” But after the Knesset passed, in 1992, the Basic Law: Human Dignity and Liberty, Aharon Barak declared a constitutional revolution. This basic law does not mention a long list of rights which are generally considered fundamental, and which in other countries are considered constitutional rights. However, convinced that it had managed to legislate a constitution, the court also decided to determine its contents by simply interpreting the term “human dignity” so as include in it the values which in the court’s view ought to be guaranteed, even where the legislator decided to omit them. The connection between this basic law and what the court calls a constitution, however, is an invention of the Supreme Court itself.

This chapter looks at the changes in the appointments of justices to the Supreme Court and the lower courts. As the number of vacancies on the bench grew and public approval of Aharon Barak’s court waned, the court soon faced justice ministers who did not prove as malleable to their whims, among them Haim Ramon and the author himself. By law, the justice minister has the power to make temporary appointments to the court with the consent of the chief justice, and without requiring the approval of the Judicial Selection Committee. While the issue of temporary appointments seems trifling, in the larger context they were a central tool by which the Supreme Court exerted control over both the District Courts and appointments to the high bench. Thus, the chapter outlines some of the author’s candidates for the bench, as well as the author’s attempts to put an end to temporary appointments to the Supreme Court and make amendments to the appointment procedure. During the author’s term, two private lawyers were appointed to the supreme court for the first time since the original supreme court bench.