The po­lit­i­cal and le­gal legacy of Supreme Court jus­tice Elyakim Ru­bin­stein

Jerusalem Post - - NEWS - • By YONAH JEREMY BOB

“Peo­ple should read be­fore they crit­i­cize,” re­tired jus­tice Elyakim Ru­bin­stein told Is­rael Ra­dio on Thurs­day in a first in­ter­view on a del­uge of ma­jor rul­ings he and the High Court of Jus­tice is­sued in re­cent days.

The first in­ter­view came im­me­di­ately after what was ef­fec­tively Ru­bin­stein’s ex­plo­sive last stand as part of the court.

He was re­spond­ing to mas­sive at­tacks on the High Court’s rul­ings, es­pe­cially the de­ci­sions strik­ing the state’s poli­cies: for in­te­grat­ing ultra-Ortho­dox men into the IDF as dis­crim­i­na­tory; for negat­ing east Jerusalemites’ res­i­dency for af­fil­i­a­tion with a Pales­tinian po­lit­i­cal slate af­fil­i­ated with Hamas; and a few weeks ago for strik­ing the state’s African mi­grant pol­icy.

He said he and the court have been de­mo­nized as anti-To­rah, when in fact his rul­ing about haredim in the IDF gave a stir­ring de­fense of To­rah study.

In other words, any­one who care­fully read his rul­ing would have seen that he did not put down To­rah study. Rather, he only el­e­vated serv­ing in the IDF as an equally im­por­tant value that must be un­der­taken in tan­dem with con­sid­er­ing the value of To­rah study.

Some court crit­ics have also ac­cused the High Court of try­ing to over­whelm the pub­lic with rul­ings so that they would not catch all the im­pli­ca­tions.

Ru­bin­stein shot this down. He said there was no ad­vanced plan to is­sue all of the rul­ings at once and it just hap­pened that way be­cause a num­ber of the cases dealt with are highly com­plex de­vel­op­ing is­sues.

Ul­ti­mately, he said the de­ci­sions were is­sued when they were as he had re­tired and had to be is­sued within three months of his re­tire­ment.

But with all of Ru­bin­stein’s nu­ance, the bot­tom-line im­pact of Ru­bin­stein’s last stand and take on the haredim in the IDF is­sue could not be more pul­ver­iz­ing and less nu­anced.

Throw­ing out the state’s pol­icy on the is­sue cre­ated an im­me­di­ate po­ten­tial coali­tion cri­sis and a so­cial cri­sis be­tween the haredi and sec­u­lar sec­tors.

Granted the court gave the state a year to re­solve the is­sue and the state’s past pol­icy had mostly thumbed its nose at the sec­u­lar sec­tor and at past court rul­ings de­mand­ing greater equal­ity in haredi par­tic­i­pa­tion in the IDF.

Also, from a po­lit­i­cal per­spec­tive, the coali­tion does not seem to be shaken by the rul­ing as seems to be revving up to past an­other law which will still ex­empt most haredim from IDF ser­vice.

It is very ques­tion­able whether Ru­bin­stein’s peace­mak­ing ra­dio ap­pear­ance can re­duce the hos­til­ity to the High Court with the zero-sum men­tal­ity from the haredi sec­tor that any­thing be­yond an ex­emp­tion from IDF ser­vice is a hos­tile act.

De­spite his ef­forts to reach a mid­dle ground which he re­ferred to in the in­ter­view, it seems that ship sailed when the 2014 Yair Lapid le­gal fix for the is­sue, which crim­i­nal­ized haredi draft dodg­ing and set hard re­cruit­ing bench­marks, was dis­carded by the cur­rent coali­tion in 2015.

Iron­i­cally, Lapid’s law, which still de­manded far less than 100% haredi (ultra-Ortho­dox) par­tic­i­pa­tion in the IDF, is prob­a­bly what the High Court would have green-lighted since it at least on its face re­quired a ma­jor jump in en­list­ment.

This was hinted to by sev­eral jus­tices in their opin­ions strik­ing the 2015 law as hav­ing haredi re­cruit­ment bench­marks which were too wa­tered-down.

All of this means that at least on this is­sue, as ma­jor as Ru­bin­stein’s last stand was, it will prob­a­bly not be more than an­other bat­tle in a so­cial war with more bat­tles on the hori­zon and no end in sight.

(Ali Jarekji/Reuters)

IS­RAELI DEL­E­GA­TION HEAD Elyakim Ru­bin­stein meets in the desert with his Jor­da­nian coun­ter­part, Fayez Tarawneh, be­fore the start of peace talks in July 1994.

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