The Supreme Court, Yeshiva Students, and Military Conscription: Judicial Review, the Grunis Dissent, and its Implications for Israeli Democracy and Law

INTRODUCTION

Judicial review is a legal mechanism operative in many nations that allows the judiciary to invalidate laws enacted by a legislative body or orders issued by an executive when the court regards these branches as having exceeded their authority. In the United States, this power is exercised in relationship to the Constitution. However, in Israel, where there is no constitution, the Basic Laws of the State serve as justifications for this power. In United Mizrahi Bank v. Migdal Cooperative Village (1995),¹ former President of the Israeli Supreme Court Aharon Barak ushered in what he labelled a "constitutional revolution" in Israel when he held that the Court had the prerogative to overrule any laws enacted by the Knesset that contradicted Basic Laws of the State.² The exercise of this power by the judiciary has long been the subject of legal debate. Its critics have contended that judicial review allows unelected judges to override decisions by a democratically elected legislature. John Hart Ely of Yale observed that it is difficult to reconcile the "judicial veto" judicial review allowing judges to exercise against legislation enacted by the representatives of the people "with our underlying democratic theory of government." At the same time, Ely and others recognize that judicial review assures that fairness and due legal process are followed by all governing institutions and protects the "rights of minorities from majority tyranny."³

While the acceptance of judicial review as a legitimate part of Israeli and American democracy is secure, arguments abound about the scope of its application. The article focuses on one such debate in the history of Israeli secular jurisprudence by focusing on the minority opinion written by ISC [Israeli Supreme Court] Justice Asher Grunis in the 2006 case of Movement for Quality Government v. Knesset. This case dealt with "The Deferment of Military Draft for Yeshiva Students Whose Occupation Is the Study of Torah Law" passed by the Knesset in 2002. Known popularly as "The Tal Law" after Justice Tzvi Tal who initially headed the governmental committee that drafted this legislation, the Tal Law provided statutory authorization for the minister of defense to extend military deferments to full-time yeshiva students in the Haredi community. Grunis, who later served as president of the ISC (2012–15), cast the lone dissent in this case and his opinion deals directly with the issue of judicial review and its application in this instance.

The substantive issue involved in this case—military deferments by yeshiva students in the Haredi sector of Jewish Israeli society—has long been a matter of fierce controversy in Israel and the Diaspora. The article begins with a brief historical summary of this controversy. Barak's opinions that lay the theoretical grounds for the justiciability and the application of judicial review by the ISC on this matter will be highlighted, followed by the arguments Grunis marshals for his dissent. Finally, it will conclude speculatively with a reflection on the implications of his views for the future.

MILITARY DEFERMENT OF YESHIVA STUDENTS: HISTORY AND POLITICAL-SOCIAL CONFLICTS

In 1949, after independence was achieved, the Hazon Ish,⁴ the leading Haredi authority in Israel, through an emissary, Rabbi Meir Levin, Agudat Israel Knesset representative and a signatory of Israel's Declaration of Independence, asked Prime Minister David Ben-Gurion to extend the 1948 wartime deferment granted 400 full-time yeshiva students to peacetime. Chief Ashkenazi Rabbi Isaac Halevi Herzog wrote to Ben-Gurion in the winter of 1948–49, "After the awful Holocaust, in which tens of thousands of yeshiva students were destroyed in Europe—leaving only a pitiful remnant—it is my opinion that they be freed from compulsory military service in order to allow these few to continue the study of our Holy Torah which is also to the glory, and necessity, of our state."⁵

Ben-Gurion acquiesced to these appeals and wrote to Levin in 1949 confirming the continuity of this arrangement. As Moshe Sokolow has observed, Ben-Gurion was not moved to forge this...