Judicial Power and National Politics: Courts and Gender in the Religious-Secular Conflict in Israel

Notes

Notes Introduction 1. While the Association for Civil Rights in Israel, the Israel Women’s Network, and the Israel Religion Action Center—each of which is a sort of umbrella representative of the civil rights movement, women’s movement, and religious pluralism movement—maintain a high level of prestige within the judicial community and among themselves, they are decidedly not popular in the wider society . Classic accounts of strategic decision making would lead us to expect the HCJ to ally with popular movements, which could garner widespread social support for the institution and its decisions. To the contrary, the HCJ has allied with unpopular movements that are, even more to the point, pursuing a largely unpopular policy change in seeking to uproot the institutional status of religious authorities in Israel. Thus, while the HCJ’s choice of legal arguments used to confront religious authorities certainly suggests a strategic aspect to its decision making, the strategic considerations are complex and have been more rooted in seeking legitimacy through legal norms than through popular support. 2. Nevo (1990) is a labor case that began prior to Shakdiel and “Poraz.” It was heard, in part, concurrently with them. It is the first case in which the HCJ heard the argument for women’s equality. Frances Raday brought that case to the HCJ. 3. Some members of the women’s movement are not feminists. For more on this topic, see my “It’s Israeli After All: A Survey of Israeli Women’s Movement Volunteers,” Israel Studies Forum 19, no. 2 (April 2004): 29–53. 4. See discussion of the treatment of the Israeli women’s movement in Israel as a foreign (and, primarily, American) movement, out of touch with mainstream Israeli society in my article cited in note 3. 5. H.C. 2888/92 Goldstein v. The Minister of the Interior et al.; H.C. 1000/92 Bavli v. The Supreme Rabbinical Court P.D. 48 (2) 221 (1994) (Hebrew); H.C. 257/89 Hoffman et al. v. The Guardian of the Western Wall P.D. 48 (2) 263 (1994) (Hebrew); H.C. 3358/95 Hoffman et al. v. The Guardian of the Western Wall P.D. 54 (2) 345 (2000) (Hebrew). 195 Chapter 1. Judicial Community, Judicial Power, and National Politics 1. I use the word “organic” here in the sense that Antonio Gramsci uses it when he discusses the natural, organic process through which authentic intellectuals emerge from their social communities and classes (1971, 5). In the case of judicial communities, they are also organic communities in that they develop through a combination of a common set of (intellectual) interests, physical proximity, and regular physical contact. Close personal ties are not critical here; it is being part of a process of regular, diffuse contact that is most important in the intellectual development of the community. By using Gramsci’s understanding of the term “organic ,” I am not suggesting that members of the judicial community make up their own class. Members of the judicial community belong to different class groups in the wider society. They do, however, make up a small social and, most importantly, intellectual community. In identifying organic intellectuals, Gramsci makes space for them to emerge from either social groups or social classes. In the case of judicial communities, members come together over time to form a coherent, intellectual social group (what I am calling a community) that is much narrower than a social class and is not organized on material interests. 2. In cases in which judicial processes are checked exclusively by the judiciary, conditions of hyperjudicial independence may occur. Under such conditions, as in the Italian case discussed later, the number of judicial communities may become almost as high as the number of judges in the country, making analysis of judicial communities no longer the most effective tool in predicting major trends in high court thinking. 3. For a detailed discussion of judicial independence, see Russell and O’Brien 2001. Russell defines judicial independence, a requirement for a “liberal society ,” in terms of what it is not: “political direction of judicial decision making, bribery, corruption, and a nearly total absence of economic security for their judges” (2001, 1); or in more abstract terms, “structural, personnel, administrative, and direct” impingements on the ability of a judiciary to make decisions free of external controls (13). 4. The work of Lynn Mather, Craig McEwen, and Richard Maiman supports this point; they emphasize that communities of legal practice shape and are shaped by...