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JUDICIAL DIVERSITY WITHIN MULTICULTURAL STATES:

AN EMPIRICAL ANALYSIS OF DISSENTING RULINGS OF ETHNIC-MINORITY JUDGE IN ISRAEL

Manal Totry- Jubran

Scholarly research on the subject of judicial diversity provides two theoretical answers to the necessity of promoting diversity in the judicial systems of multicultural states. One refers to the importance of “descriptive representation”, the other to that of “substantive representation”. Empirical studies on judicial diversity provide contradictory answers to whether the ethnic identity of minority judges in multicultural societies affects their judicial decisions, and if so, in what way. Despite the fruitful studies on judicial diversity, there is no research on dissenting rulings of ethnic minorities and the effect of ethnic identity on the legal case or on the will and motive to dissent. In this paper, I explore a test case in Israel of the first minority Arab judge appointed to the Supreme Court: The honorable (retired) Justice Salim Joubran. Through an empirical study, I examine his dissenting rulings in constitutional matters and investigate whether he was a descriptive or a substantive representation. The study provides new evidence on the role that ethnic identity plays on judicial behavior in multicultural and conflictual societies. It shows that minority Judges who are part of underprivileged group contextualize the apparently neutral violations of rights and attribute them to marginalized groups. Dissenting rulings of minority judges bring to the legal debate another aspect which contributes to the voicing of underrepresented groups that are distinct aspect from the hegemonic judges. Although dissenting opinions has no legal value in the final verdict, they are critical as they spur legal debate within the judicial system that can affect future verdicts. Accordingly, this research adds insights into the theoretical and empirical study of judicial diversity and shed light on dissenting opinions of minority judges’ role in the court and on shaping the law in multicultural countries.

Assistant Professor, Faculty of Law, Bar-Ilan University ([email protected]). I am grateful to the Center for Jewish and Democratic Law for funding this research and to Ori Aronson and Keren Weinshall-Margel for thier valuable and insightful comments. My deep thanks also to Shimon Dayan and Na’ama Levy for their quantitative research assistance. Draft- please do not circulate

Table of Contents

Introduction ...... 2 I. Identity Politics in The Court ...... 4 A.Minority Judges in the US Courts ...... 5 B.Empirical Research on Judicial Diversity in the US ...... 6 II. Dissenting Decisions in the Supreme Court ...... 8 A.Empirical Studies on Dissenting Opinions ...... 9 B.Empirical Studies on Dissenting Opinions in Israel ...... 10 III. The Structure of the Israeli Supreme Court ...... 12 A.Judicial Composition of the Israeli Supreme Court ...... 13 B.Salim Joubran: A Short Biography ...... 14 IV. Methodology ...... 15 V. Diversity in The Israeli Supreme Court: The Case of the First Arab Judge ...... 17 A. Quantitative research ...... 17 B.Qualitative Research: Insight from Justice Joubran’s Dissenting Rulings ...... 22 Conclusion ...... 28

INTRODUCTION

Empirical studies that examined whether the ethnic identity of minority judges in multicultural societies do actually affect their judicial decisions provided contradictory answers. However, a large mass of empirical research conducted in the United States in the context of constitutional issues show that women and African American judges vote differently than men and white judges, and that they also write robustly on issues pertaining to civil rights and affirmative

1 Jane Mansbridge, Should Blacks Represent Women? A Contingent “Yes”, 67 J. POL. 628, 629 (1999). 2 Jonathan P. Kastellec, Racial Diversity and Judicial Influence on Appellate Courts, 57 AM. J. POL. SCI. 167, 167-168 (2013). Draft- please do not circulate

action.3 Despite the fruitful studies on judicial diversity, there is no research on dissenting rulings of ethnic minorities and the effect of ethnic identity on the legal case or on the will and motive to dissent.

In this paper, I explore a test case in Israel of the first minority judge appointed to the Supreme Court: The honorable (retired) Justice Salim Joubran. Through an empirical study, I examine his dissenting rulings in constitutional matters and investigate whether he was a descriptive or a substantive representation. Justice Joubran is part of the country’s largest ethnic minority group, constituting 20% of its population. During his fourteen years on the Supreme Court’s bench (from 2004 until 2017),4 he took part in deciding on numerous petitions and appeals that touched upon the violation of rights of the Palestinian minority in Israel, to which he belongs. These petitions usually challenged the Jewish and democratic character of the state. In some instances, he was part of the majority opinion and gave complementary rulings, or merely agreed with the panels’ majority decisions.5 In other cases, he delivered comprehensive dissenting opinions, whether by writing sole dissenting ones,6 or by joining other dissenting opinions.

The examination of Justice Joubran judicial behavior embodies an interesting case-study, because his rulings (especially his dissenting ones) highlight the legal challenges that the Jewish nature and character of the state pose on its democratic and liberal obligation towards its Arab citizens. Thus it provides insight on the effects of minority Justice’s attitudinal behavior (his personal ideology) and of institutional factors on his ruling and by that shed light on his role in shaping the law in conflictual countries.

The study provides new evidence on the role that ethnic identity plays on judicial behavior in multicultural and conflictual societies. It shows that minority Judges who are part of underprivileged group contextualize the apparently neutral violations of rights and attribute them to marginalized groups. Dissenting rulings of minority judges bring to the legal debate another aspect which contributes to the voicing of underrepresented groups that are distinct aspect from the hegemonic judges. Although dissenting opinions has no legal value in the final verdict, they are critical as they spur legal debate within the judicial system that can affect future verdicts. Accordingly, this research adds insights into the theoretical and empirical study of judicial diversity and shed light on dissenting opinions of minority judges’ role in the court and on shaping the law in multicultural countries. The research joins the exiting empirical study on what and how diversity contributes to the judicial system and to the normative study on the importance of diversity within the judicial system in multicultural states. It points out to the complexity of minority judges’ rulings that can at times be descriptive representation and at

3 Maya Sen, Diversity, Qualifications, and Ideology: How Female and Minority Judges Have Changed or not Changed Overtime, 2017 WISCONSIN LAW REVIEW 367, 369 (2017). 4 Salim Joubran was first appointed in 2003 as acting Supreme Court Justice. 5 See table 2 in part III. 6 H.C.J. 3166/14 Gutman v. The Attorney General (Nevo, March 12, 2015); H.C.J. 6706/14 Haneen Zoabi v. The Knesset’s Ethics Committee (Nevo, February 10, 2015), C.A.P. 7669/15 Raed Salah Mahajna v. The State of Israel; H.C.J. 2684/12 12th of Cheshvan The Movement for the Strengthening of Tolerance in Religious Education v. The Attorney General (Nevo, December 9, 2015); H.C.J. 1213/10 Nir v. The Speaker of the Knesset (AR”S, February 23, 2012). Draft- please do not circulate

others substantive, depending on the legal system’s character and the judges’ preferences that are affected by their identity.

The study is based on a mixed method of quantitative and qualitative empirical study that examines whether Justice Joubran’s appointment was a descriptive representative or a substantive one. The quantitative study addresses the following questions: what are the number of cases in which Justice Joubran utilized dissenting opinions; against what background, and whether he tended to write more dissenting rulings on issues pertaining to the rights of the Arab minority. The qualitative study focuses on the following inquiries: whether Justice Joubran’s national affiliation is reflected in his dissenting opinions (either sole ones, or when joining the dissenting part of the panel) and whether he added new, different perspectives to his fellow Jewish colleagues’ in the context of constitutional cases brought before the Israeli Court.

I chose to focus on his dissenting rulings, which require detailed writing of the decision and judgement.7 Dissenting rulings are particularly intriguing, as they can shed light on his stand and ideological approach, and the extent to which his ethnic and national identity permeates his ruling. It might also bring to the legal debate another, less discussed aspect of the issue, distinct from other dissenting hegemonic judges. I chose to focus on constitutional verdicts of rights’ violations because this is the major legal fields in which the system’s basic values are usually contested and judges are required to decide on what matters the most for society. Moreover, dissenting rulings on these issues, particularly of a minority judge, can show another distinct aspect of the essence of such violations, which majority judges do not necessary introduce to the legal hearing.

The article proceeds as follows: the next section presents the existing research on identity politics and judicial diversity. The second section presents research on dissenting opinions. The third section explores the methodology of the research, followed by the fourth part, which discusses the quantitative and qualitative findings. I close with a conclusion that descriptive and substantive representations are not distinct categories but rather fluid and connected; Judges can move from descriptive to substantive representation and the other way around. Therefore, although judicial diversity might not affect the final outcome of the petition, especially within dissenting opinions; it is still necessary as the presence of minority judges on the bench uncover aspects of rights violations and spur discussions that are not apparent to majority judges.

I. IDENTITY POLITICS IN THE COURT

There is prolific academic research regarding the influence of the racial and gender identity of judges on their judicial decisions. Some of these studies were motivated by growing attention to the possibility that minorities receive unequal treatment in the judicial system, and to the political and social implications of inequality in law enforcement. Accordingly, it was asserted

7 Id, 103-109. Draft- please do not circulate

that an increase in minority representation within the judicial system might improve people’s perception of justice and increase support of the judicial system, regardless of the outcome.8

This section provides a short overview of the leading empirical studies on the issue of identity politics in the court, focusing on research conducted in the American context, which is the most prevalent existing research.

A. MINORITY JUDGES IN THE US COURTS

The judge-appointing system in the United States Supreme Court is, fundamentally, a political process. The President of the United States is responsible for the election of judges to the Court, making each appointment a personal one. In this way, Justices are elected not only according to their professional record and legal qualifications, but also according to their political view. It is therefore common for a Republican president to choose a conservative nominee, and for a Democratic president to choose a more liberal judge. This judge-appointing system creates political and ideological tension in the Supreme Court, and each president seeks to strengthen his power by achieving a majority supporting his political and world views.

For many years, the United States Supreme Court, like other federal judicial instances, did not include judges from marginalized groups such as women, African Americans, Latinos and Asians. Only in 1967 was Thurgood Marshall,9 a successful African-American civil rights attorney, appointed to become the first African-American Supreme Court Justice.10 Change in this trend took place in lower federal instances via wider appointment of minority-group judges, but until 2004, there were only two African-American Justices in the Supreme Court, and no judges from Latino, Asian, or Native-American origin.11 In 2009 and 2010, two women Justices were appointed to the United States Supreme Court by President Barack Obama: Justice Sonia Sotomayor, who became the first Latina Supreme Court Justice, and Justice Elena Kagan.12 Moreover, under President Obama’s administration, out of 768 federal judges, 26% were women, 11% were African American, and 7% were Hispanic.13 Nevertheless, it should be noted that some minorities are still underrepresented in the United States, such as Asian Americans (1% of all of the federal judges) and Native Americans (only one judge identifying as such).14

8 Sherrilyn A. Ifill, Racial Diversity on the Bench: Beyond Role Models and Public Confidence, 57 WASHINGTON & LEE LAW REVIEW 405 (2000). 9 Thurgood Marshall graduated from Howard University Law School, was the Supreme Court’s 96th Justice, and its first African American justice. Prior to his judicial appointment, he successfully argued several cases before the Supreme Court, including the famous case of Brown v. Board of Education 347 U.S. 483 (1954). 10 William J. Brenna Jr., A Tribute to Justice Thurgood Marshall, 105 HARV. L. REV. 23 (1991). 11 Sen, supra note 3, at 369. 12 Cox and Thomas J. Miles, supra note 19 at 69. 13 Id. 14 Id. Draft- please do not circulate

These appointments raise the question whether judicial diversity results in diversity in opinions and rulings that correlate with the judges’ racial and ethnic identity. The following section presents the leading research which regards this question.

B. EMPIRICAL RESEARCH ON JUDICIAL DIVERSITY IN THE US

There is extensive empirical research on judicial diversity in the context of criminal and constitutional law in the United States. These are the two major fields that raise issues of human rights in general, and of marginalized groups in particular, and therefore can shed light on whether a minority judge rules differently from hegemonic judges.15 Contrary to research conducted in constitutional law, empirical studies in criminal law do not provide decisive findings. This is because, among other factors, there is great difficulty in isolating the judges’ ethnic or gender identity’s impact on the ruling. There are other influencing variables that might explain gaps among the final rulings regarding different ethnic defendants, such as the strategies of the defense attorneys, as well as of the prosecutors and other non-judicial actors.16

As for constitutional law, which is the focus of this study, early studies conducted in the United States on the rulings of Justice Thurgood Marshall indicate that in relation to constitutional issues, he was an activist judge who promoted the rights of various minority groups.17 Later studies show that African- American judges in the United States rule differently than white judges regarding human rights issues. Kastellec showed that African-American judges tend to support more claims based on human rights and the rights of suspects under interrogation,and 18 assert more violations of the Voting Rights Act (which prohibits racial discrimination in elections).19 Another study found that African-American judges tend to adopt a more liberal line when deciding gender-based discrimination claims.20

A very recent study conducted by Sen reexamined whether judges from minority groups decide differently than their peers who do not belong to social minorities.21 The research was carried out by way of analyzing data regarding the decisions of District Court judges from 1960 until today. It arrives to two main conclusions. First, that during this long period of time, a significant change has occurred in the cultural differences between judges and minority-group judges. While during the sixties and seventies, women, African-American, and other minorities could not attend prestigious law schools in the United States and were granted lesser legal training,

15 Mark S. Hurwitz and Drew N. Lanier, Explaining Judicial Diversity: The Differential Ability of Women and Minorities to Attain Seats on State Supreme and Appellate Courts, 3 STATE POLITICS AND POLICY QUARTERLY 329 (2003). 16 Oren Gazal‐Ayal and Raanan Sulitzeanu‐Kenan, Let My People Go: Ethnic In‐Group Bias in Judicial Decisions—Evidence from a Randomized Natural Experiment, 7 JOURNAL OF EMPIRICAL LEGAL STUDIES 403 (2010). 17 Brenna, supra note 10. One of his most influential rulings regards the Constitution’s Fourth Amendment, which protects against unreasonable government searches and seizures, see: Tracey Maclin, Justice Thurgood Marshall: Taking the Fourth Amendment Seriously, 77 CORN. L. REV. 723, 812 (1992) 18 Jonathan P. Kastellec, Racial Diversity and Judicial Influence on Appellate Courts 57 AM. J. POL. SCI. 167, 167–168 (2013). 19 Adam B. Cox and Thomas J. Miles, Judging the Voting Rights Act 1 COLUM. L. Rev. 32-30 (2008). 20 Elaine Martin and Barry Pyle, Gender, Race, and Partisanship on the Michigan Supreme Court, 63 ALB. L. REV. 1205, 1232–1233i (2000). 21 Sen, supra note 3. Draft- please do not circulate

today, all federal judges researched in the study attended the most advanced universities in the United States (and some might say in the world), either Harvard or Yale Law Schools, therefore a dramatic change has occurred, evidenced when comparing minority group judges from the sixties and seventies to current ones.22

The second conclusion arrived at was that in contrast to the diminished gap in legal training between minority-group judges and white male judges, in relation to the decisions’ content, minority social-group judges still differ from hegemonic judges (white male judges) in ruling more liberally and progressively.23 In this regard, scholars developed an “ideological index” of the United States’ Supreme Justices, scoring each judge according to a one-dimensional spectrum ranging from liberal to conservative.24 A high liberal score was measured among Justices from minority groups, compared to hegemonic judges, and this score was maintained also by minority-group justices appointed by a conservative president. Thus, Sen concludes that female and minority judges contribute to both descriptive and substantive representation.25

Finally, in contrast to the assertion that there is a correlation between the political identity of the appointing president and the nature of the decision given by the Justice, Sen’s findings show that Justices from minority groups appointed by conservative presidents (in this study – mainly women, African Americans and Hispanics) tend to rule more liberally.26 This indicates that identity politics and group-belonging plays a stronger role than that of personal (political) ideology.

Moreover, studies show that a diverse court in general, and panel composition in particular, might exert an effect on judicial decision-making, favoring the interests of underrepresented groups in society. Apart from the fact that minority judges might themselves bring a new and distinct aspect to the judicial hearing and decision, there is also a “Panel Effect,” which points to the influence the presence of a minority-group judge has on other judges, not only via their decisions, but merely by their presence.27

The influence of the “Panel Effect” is manifested in three ways. First, in the voting. Due to institutional considerations, and in order to avoid the need to write costly dissenting opinions, judges may change their vote to coincide with their co-panelists’ vote. Another “Panel Effect” is the influence that minority judges’ reasoning has on their fellow judges, who may reevaluate their position following interactions with judges who provide new insight based on their different points of view or life experiences. In this way, minority representation might have an effect on judicial outcomes not only through deliberation among panelists, but also through the

22 Id. at 379-383. 23 Id. at 391-395. 24 Ward Farnsworth, The Use and Limits of Martin-Quinn Scores to Assess Supreme Court Justices, with Special Attention to the Problem of Ideological Drift, 101 NW. U. L. REV. 143 (2007), and see also Lee Epstein, Andrew D. Martin, Jeffrey A. Segal, Chad Westerland, The Judicial Common Space, 23 J.L. ECON. & ORG. 303 (2007). 25 Sen, supra note 3, at 371. 26 Id, at 393-394. 27 Sen, supra note 3, at 375-6. Draft- please do not circulate

way the case is presented. Third, collegiality has an informal influence associated with dissent- aversion and an aversion to being identified as preventing minorities from realizing their interests in highly salient matters.

Thus, the presence of female judges on a panel hearing a case on women’s treatment may influence the decisions of the other judges. Similarly, minority-group judges sitting in the same panel as hegemonic judges can influence the latter’s decisions and votes by potentially changing their point of view.28 Empirical findings in this regard indicate that descriptive representation is translated into substantive representation, and that a diverse court is more likely to include a range of opinions that addresses minority issues from different perspectives.

In summary, with regard to constitutional issues, research in the American context shows that racial and gender identities have a bearing on the judge’s decisions. These studies can be generalized to other Liberal-multicultural legal systems elsewhere and in other fields. Indeed, research conducted in Israel in the context of criminal appeals in the District Court,29 as well as first bail-hearings of Arab and Jewish suspects in Israeli courts reinforces the conclusion that ethnic identity of Judges seems to be at work in judicial decision-making.30

The current study joins this bulk of research and provides new evidence regarding the input of dissenting opinions of ethnic minorities to the understanding of the constitutional matters in multicultural and conflictual States. Before delving into case-study, the following section presents the studies on dissenting opinions.

II. DISSENTING DECISIONS IN THE SUPREME COURT

A dissenting opinion is an opinion written by one or more judges, expressing disagreement with the majority opinion of the panel. The dissent may disagree with the majority for any number of reasons: a different interpretation of the existing case-law, the application of different principles, or a different interpretation of the facts. In some instances, judges do not deliver a dissenting opinion even when they disagree with the majority, a phenomenon referred to by Posner as “dissent aversion”.31 When a judge writes a distinct opinion that does not refer to the legal decision of the majority and that does not necessarily affect the voting on the case, this is referred to as a minority report.

28 Andrew D. Martin, Kevin M. Quinn and Lee Epstein, The Median Justice on the United States Supreme Court, 83 N.C. L. REV. 1275, 1276–1283 (2005); and as one may note in the dissenting opinion of Justice4 Souter: "Anyone who has ever sat on a bench with other judges knows that judges are supposed to influence each other, and they do. One may see something the others did not see, and then they all take another look.” See: Calderon v Thompson 523 U.S. 538, 570 (1988). Justice Scalia himself asserted in relation to Justice Marshall that: “Marshall could be a persuasive force by just sitting there... He wouldn’t have had to open his mouth to affect the nature of the conference and how seriously the conference would take matters of race.” Sen, supra note 3, at 377. 29 Guy Grossman, Oren Gazal-Ayal, Samuel D. Pimentel and Jeremy M. Weinstein, Descriptive Representation and Judicial Outcomes in Multiethnic Societies, 60 American Journal of Political Science 44 (2016).

30 See: Gazal‐Ayal and Sulitzeanu‐Kenan, supra note 16.

31 RICHARD A. POSNER, HOW JUDGES THINK, 31-34 (Cambridge, MA: Harvard University Press, 2008). Draft- please do not circulate

A dissenting opinion does not create binding precedent, nor does it become a part of case-law. However, in Common Law countries, the conventional assumption is that “today’s dissent is tomorrow’s majority”. In some cases, a previous dissent is used to spur a change in the law, and a later case may result in a majority opinion adopting a particular understanding of the law formerly advocated in dissent. Therefore, the assertion that dissenting opinions have not only ideological value, but also legal value, is widely accepted. This section presents the finding of existing empirical research on dissenting opinion conducted in three multicultural countries: US, Australia and Israel.

A. EMPIRICAL STUDIES ON DISSENTING OPINIONS

In the early seventies, quantitative studies began to be carried out in order to examine and analyze the reasoning behind judge’s rulings in general, and dissenting opinions in particular. A pioneering study was carried out by Jaros and Canon, examining dissenting opinions of different State Supreme Courts. Their study reemphasize the common view at the time according to which differences in the judges’ characteristics (ideology) are those that lead to dissenting opinions.32 The study found differences in the dissenting opinions’ frequency in Supreme Courts hearing “as of right” appeal cases directly as appeal instances—in which dissenting opinions were numerous—compared to cases heard by Supreme Courts as appeals “by leave” coming from appellate courts, in which dissenting opinions were fewer.33

An explanation to this phenomenon touched upon the institutional character of the Supreme Court as an Appellate Court hearing appeals “as of right”, as opposed to it being an appeal instance hearing appeals “by leave”. Judges hearing a case in its third round (heard previously by the Appellate Court) tend to reflect social considerations, such as socio-economic status, and even political/ideological approaches common in that society, and not only their own personal views as judges – leading to an increase in dissenting opinions in judgements.34 Thus, as opposed to the Supreme Court hearing appeals “as of right”, in which judges’ considerations relate more closely to the particular circumstances of the cases (and the judges’ personal opinions), mitigating the tendency to write numerous dissenting opinions, a legal discussion that is “separate” from a specific context emphasizes not only the judges’ different views, but also a wish to reflect social consensus to the public.

In 2007, Narayan and Smyth examined the factors influencing the annual dissent rate on the High Court of Australia from its first full year of operation in 1904 and until 2001. They examined the following institutional factors: the Court’s caseload, whether it had discretion to select the cases it hears, and whether it was a final court of appeal.35 They found that in the long

32 Dean Jaros and Bradley C. Canon, Dissent on State Supreme Courts: The Differential Significance of Characteristics of Judges, 15 MIDWEST JOURNAL OF POLITICAL SCIENCE 322 (1971). 33 Id. at 336-343. 34 Id. at 344-345. 35 Paresh Kumar Narayan and Russell Smyth, What Explains Dissent on the High Court of Australia - An Empirical Assessment Using a Cointegration and Error Correction Approach, 4 J. EMPIRICAL LEGAL STUD. 401 (2007). Draft- please do not circulate

run and short run, caseload and real income are the main factors influencing dissent. In an earlier 2005 research, Smyth found that as the High Court became the final court of Appeal, the dissent rate increased.36

Another, more recent research conducted in 2011 by Epstein, Landes, and Posner, examined when and why US Federal Circuit Court judges and US Supreme Court Justices dissent.37 The common answer of the legalistic model would be that judges dissent when they disagree with the majority. The scholars provide a complex answer by exploring the different incentives that have an effect on judges’ will to dissent. Based on the economic (rational choice) model, the researchers developed a model of self-interested judicial behavior to explore the phenomenon of “dissent aversion”. Handing a dissenting opinion requires time and effort in writing the ruling; accordingly, their assumption was that a judge will dissent if there is an obvious benefit in return. Such benefit may be undermining the majority opinion citing their dissenting opinion, thus gaining influence in shaping the law.

The study indicates that among US Supreme Court Justices, the increasing use of dissenting rulings is not only based on the judges’ ideological views, but rather on institutional incentives.38 Therefore, variables such as the panel’s size, the chance that the dissenting opinion will influence the course of the law in the future, the caseload burden on the Court, the cost of frequent use of dissenting opinions, and additional factors, also influence the use of dissenting opinions. Moreover, Epstein, Landes, and Posner found that in both instances (Federal Circuit Court judges and Supreme Court Justices), dissenting opinions are almost never cited in judgements of the same judicial instance, giving rise to the conclusion that these opinions have no great legal value, and importantly, small or no benefit alongside the cost of writing them.

An interim summary of why and when judges dissent in the American, and to some extent in the Australian context, is that dissenting opinions of judges depend on numerous variables – institutional, as well as ideological, and it is difficult to attribute to them one specific reason or another. However, despite these and other fruitful studies, I could not find any research on dissenting rulings of ethnic minorities and the effect of ethnic identity on the will and motive to dissent or on the legal case. Such research can be found in the Israeli context in two studies, and this study aims to add to this trend.

B. EMPIRICAL STUDIES ON DISSENTING OPINIONS IN ISRAEL

An analysis carried out on dissenting decisions in the Israeli Supreme Court between 1986 and 1994 showed that dissenting opinions in judgements were not common, as they constituted only

36 Russell Smyth, The Role of Attitudinal, Institutional and Environmental Factors in Explaining Variations in the Dissent Rate on the High Court of Australia, 40 AUSTRALIAN J OF POLITICAL SCIENCE 519 (2005). 37 Epstein, Landes and Posner, supra note 10. 38 Id, at 103-109. Draft- please do not circulate

7.3% of all of the judgements examined.39 But in comparison to the American context, it seems that this is not a small number of dissenting opinions.40 An examination according to the type of decisions showed that the rate of dissenting decisions in criminal proceedings was 11%, as opposed to 6.7% in civil proceedings and 6.4% in proceedings held before the High Court of Justice.41 One may conclude that on the one hand, these findings stress the criminal proceeding’s importance in potential disagreements among judges due to different normative considerations such as individual liberty, but on the other hand, the findings emphasize also the consensus found in High Court of Justice proceedings, in spite of the important normative issues brought before it.

An examination of the identity of the Israel Supreme Court judges in relation to dissenting opinions shows that the majority of the female Justices tend to deliver less dissenting opinions in comparison to the dissenting opinions’ average. Sephardic Justices show a mixed trend towards dissenting opinions, with one part above the average and another below it, whereas religious Justices tended towards dissenting opinions above the average.42 Weighting these results led to the conclusion that in general, there is a lack of sectorial, gender, and religious influence on the number of dissenting opinions among Israel Supreme Court Justices.43 Furthermore, the affiliation of the dissenting opinion Justices to a social-minority group is not expressed in their dissenting opinions.44

Another, more recent study conducted in Israel by Weinshall-Margel, examined the differences between decisions of religious Jewish judges and those of secular Jewish judges between 1985 and 2009, and among other factors, explored the rate of their dissenting opinions.45 It appeared that 19.4% of the religious judges’ decisions were dissenting ones, as opposed to 6.4% dissenting decisions among secular judges. It was also asserted that 100% of the dissenting positions of religious judges supported religious interests, as opposed to 46.2% of majority opinions among secular judges.46 It seems then, that in relation to opinions related to matters of religion, religious judges in Israel tend to write more dissenting opinions than secular judges. This means that their personal positions are “accelerators” of dissenting opinions.

Aside from these important studies, there is no study on rulings of Arab judges in general, and in the Supreme Court in particular, within the constitutional context in which one of the most controversial and challenging issues of the state’s Jewish identity is brought to legal debate. The current pioneering study examines the judicial behavior of Justice Joubran, who embodies an interesting case-study, because his rulings (especially his dissenting ones) highlight the legal challenges that the Jewish nature and character of the state pose on its democratic and liberal

39 Michael Birnhak and David Gosersky, Specialized Seats, Minority Opinions, and Judicial Pluralism, 22 TEL AVIV UNIVERSITY LAW REVIEW 499 (1999). 40 Id. at 513- 514. 41 Id. at 519. 42 Id. at 524. 43 Id. at 526. 44 Id. at 532. 45 KEREN WEINSHALL-MARGEL, LAW AND IDEOLOGY IN SUPREME COURT DECISION-MAKING: A COMPARATIVE AND QUANTITATIVE ANALYSIS 75-76 (Hebrew University Sacher press, 2016). 46 Id. Draft- please do not circulate

obligation towards its Arab citizens. It can provide insight on the effects of minority Justice’s attitudinal behavior (his personal ideology) and of institutional factors on his ruling and by that shed light on his role in shaping the law in conflictual countries.

III. THE STRUCTURE OF THE ISRAELI SUPREME COURT

The Israeli Supreme Court wears two hats: it is the State of Israel’s highest court and final court of appeal, and also sits as a High Court of Justice (HCJ), hearing Petitions against various governmental authorities at first instance as well as against rulings of Appeals Tribunals. As the High Court of Justice, the Supreme Court hears petitions by any person (not only citizens or residents) against public bodies and governmental authorities, which tend to be politically sensitive.47 In this context, the types of cases heard by the Supreme Court include constitutional and administrative petitions for judicial review of decisions and actions of the authorities and of legislation, as well as petitions directed against judgments pronounced in the National Labor Court, the Supreme Rabbinical Court, and other religious courts.

When sitting as an appellate court, the Supreme Court hears appeals as of right and applications for leave to appeal, mainly from judgments and decisions pronounced in the District Courts. There are two types of appeals: 1. Appeal as of right against civil, criminal and administrative judgments rendered in the District Courts at the first instance (including when sitting as a Court of Administrative Matters, as a Court of Admiralty, as a Standard Contracts Tribunal and as an Antitrust Tribunal). 2. Special requests for second appeal on civil, criminal and administrative judgments rendered on appeal from the Magistrates Courts in the District Courts and the Military Court of Appeals, and applications for leave to appeal against other decisions (that are not judgments) of the District Courts. Leave to appeal is granted by the Court discretion in accordance with the criteria set out in legislation and case law and the nature of the proposed appeal.

Normally, the Supreme Court sits in panels of three. However, a single Justice may hear certain matters including interlocutory applications, temporary orders and applications for leave to appeal. In cases of special importance, and as determined by the President of the Supreme Court or by another Justice in certain cases, the Supreme Court can sit as an expanded panel with an uneven number of Justices of five, seven, nine or eleven. A hearing with an expanded panel is also common in two instances: a) A retrial in a criminal case where a final ruling has been made. This only occurs in exceptional and rare cases in which new facts have come to light or concern has arisen that an injustice was done to the accused. b) A further hearing with an expanded panel of a judgment rendered by the Supreme Court. This power is exercised in rare cases where the precedent is inconsistent with previous rulings of the Supreme Court or is of special importance.

47 Keren Weinshall-Margel, Attitudinal and Neo-Institutional Models of Supreme Court Decision Making: An Empirical and Comparative Perspective from Israel, 8 J. EMPIRICAL LEGAL STUD. 562 (2011). However it should be noted that "politically sensitive" cases can be heard also in an administrative appeal, which is brought also against governmental institutions. Draft- please do not circulate

As opposed to the American appointment system, in which political interests in the election of judges are visible, Israel applies a system in which Supreme Court Justices are elected based on their legal qualifications.48 The Justices’ appointment is carried out according to the provisions of the Basic Law: The Judiciary, and those of the Courts Act, which provide that a judge shall be appointed according to the election of a Judicial Selection Committee.49 However, in 2008 a new legislation came into force requiring that seven out of nine members of the nominating committee support the nomination of a Supreme Court justice, making the process more political.50 Once nominated, judges enjoy a secured tenure until their mandatory retirement at the age of 70, guaranteeing their independence from the political establishment.51

A. JUDICIAL COMPOSITION OF THE ISRAELI SUPREME COURT

As of its establishment, and for many years, all of Israel’s Supreme Court Justices were male, white, secular, Ashkenazi Jews, graduates of the Faculty of Law of the Hebrew University, the oldest and most prestigious law school in the country. From the seventies and onwards, a policy of “reservations” made for judges from different minority and marginalized groups began to be implemented.52 Mautner has argued that those “reservations” for marginalized group members can be justified by the assertion that since the seventies, Israel is a pluralistic society with no one cultural group enjoying hegemony over shaping the mind of the Israeli population, with different cultural groups each cultivating its own separate cultural identity.53

Today, the Israeli Supreme Court’s composition is considered diverse, as it includes Jewish- religious Justices, Jewish-Sephardic Justices, and female Justices. However, only in 1999, fifty years after Israel’s establishment, was the first Arab (Muslim) judge, Abed El- Rahman Zoabi, appointed to the Israeli Supreme Court, and only as a temporary, nine-month appointment.54 In 2003, Judge Salim Joubran was first appointed in a temporary appointment as well, but a year later he was permanently appointed to be the first Arab (Christian) Judge to serve in the Supreme Court, which he did until his retirement in 2017.

During his fourteen years on the Supreme Court’s bench he decided on numerous petitions and appeals that touched upon violation of rights of the Palestinian minority in Israel. In some instances he was part of the majority opinion and gave complementary rulings, in other cases, he delivered comprehensive dissenting opinions, whether by writing sole dissenting ones, or by joining other dissenting opinions. To have a better comprehension of his judicial behavior the following section presents a short biography of his legal career.

48 For further elaboration on the nomination system in both countries, see: id, at 563-4. 49 Basic Law: The Judiciary, Sefer Hachukim 1110; The Courts Act [Consolidated Version], 5744-1984, Sefer Hachukim 1123. 50 Weinshall-Margel, supra note 52, at 546. 51 Id, at 562. 52 The first non-Ashkenazi (Sephardic) Supreme Court Justice was appointed in 1962, and the first female Justice, in 1977.

53 Menachem Mautner, Appointment of Judges to the Supreme Court in a Multicultural Society, 19 LAW STUDIES, 423, 423-426 (2003). 54 Birnhak and Gosersky, supra note 39, at 508. Draft- please do not circulate

B. SALIM JOUBRAN: A SHORT BIOGRAPHY

Salim Joubran was born in 1947 in the German Colony neighborhood of Haifa, Mandatory Palestine, to an Arab Christian family of Maronite-Lebanese origin. He graduated from the Franciscan Order’s Terra Santa School in Acre. He studied law at the Hebrew University and established a criminal law private practice in 1970.55 In 1982, after 12 years of private legal practice, Joubran was appointed as a judge to Haifa’s Magistrate’s Court, where he served for 11 years. In 1993, he was appointed to Haifa’s District court, and served for an additional 10 years, following which he was elevated to the Supreme Court, first as a temporary Justice and then as a permanent one. In 2015, he was the first Arab Judge to chair the Central Elections Committee. During the last two months of his service on the Supreme Court, he served as Deputy President of the Supreme Court. As opposed to judges appointed to the Supreme Court from Academia and from private practice, Justice Joubran’s long service in the Magistrate and District courts characterizes him as a “professional” judge.

While on the bench, Joubran considered himself as a representative of the Arab minority in decisions that shape the face of the State of Israel. During his swearing-in ceremony, he stated that “the day on which the first Arab judge is appointed to serve as a permanent appointment to the highest judicial authority in the State of Israel constitutes a very important turning point in the life of the Arab population in Israel.” A few months later, in an interview with the Israel Judges’ Newsletter, he declared that his appointment was “an important message and a hope for a better future, a shared life in Israel, and especially in view of the murky atmosphere that prevailed after the events of October 2000.”56 Justice Joubran was considered to be an important player in bridging the country’s divides between Jewish and Arab citizens.57

Justice Joubran’s approach (effectively, his ideology) in relation to the status of the country’s Arab citizens and the Israeli legal and political systems was evident in several events and public remarks. In 2012, he drew criticism for remaining silent during the singing of Israel’s national anthem at the closing of a Supreme Court swearing-in ceremony. In an interview he explained: “Right now, I cannot sing an anthem that includes the words “Beats true a Jewish heart.” If the state expects all of its citizens, including the Arab ones, to respect its national anthem, it needs to respect them and their rights.”58 He further stated that: “If one day the words of the national anthem are changed, I think I won’t have any problem singing it. I definitely think words should be added to be appropriate for the Arab citizen in Israel as well.”59

55 Yuval Yoaz, And Justices All Four, 7 May 2004, HAARETZ. https://www.haaretz.com/1.4830842 56 https://www.makorrishon.co.il/nrg/online/1/ART2/889/316.html. The events of October 2000 describe the killing of twelve Palestinian–Israeli Arab citizens by armed forces during the eruption of the second “Intifada.” Following these events, a governmental committee, The “Or Commission,” was established to investigate the causes for the killings. Yonah Jeremy Bob, The Legacy of Israel’s First Arab Supreme Court Judge, THE JERUSALEM POST, 57 August 4, 2017.

58 Tova Tzimuki, Retired Supreme Court Justice Joubran: I can’t sing Israel’s Anthem, YNET, 1, January, 2018. 59 Id. Draft- please do not circulate

In a speech delivered in 2014, Justice Joubran addressed the widespread discrimination that members of Israel’s Arab community suffer from and said that the principle of equality for all citizens mentioned in Israel’s Declaration of Independence is sadly not implemented.60 In 2017, after his retirement, he called his former colleagues in the Supreme Court to overturn the enactment of the controversial Nation-State law, asserting that the law creates “a superior class and an inferior class” and decrying its failure to include the word “equality.”61 The Nation-State Basic Law, enacted in July 2018, enshrines Israel as “the national home of the Jewish people” and provides that “the right to exercise national self-determination in the State of Israel is unique to the Jewish people”. It declares that Hebrew is the formal language of the state and Jerusalem is the capital of Israel, it sets the Hebrew calendar as the official calendar of the state, and recognizes Israel’s Independence Day, days of remembrance, and Jewish holidays. The law sparked widespread criticism from Israel’s Palestinian minority, the international community, and Jewish groups abroad.

After his retirement, Justice George Karra, a Christian Arab, was appointed. Justice Joubran stated that he was happy his appointment opened the door to other Arab judges to sit on the bench of the Supreme Court and that he hoped another Arab judge would be appointed to the Supreme Court. He stated: “If there would indeed be two Arab judges serving in the Supreme Court, it would bring a lot of respect to the State of Israel, and it will also increase the Arab population’s trust in the justice system in Israel.”62 He also expressed his concern of politicians’ attacks against the Supreme Court as these hurt democracy, which protects disadvantaged populations.63

During his 14 years of service, Justice Joubran was challenged with numerous cases in which he had to carefully balance between the states’ Jewish nature on the one hand, and its (and his) commitment to its democratic nature on the other. In some instances, he joined the opinions of the hegemonic (Jewish) judges sitting on the panel, while in others, he delivered dissenting opinions. The following sections investigate the cases brought before the Israeli Court in which he utilized dissenting opinions in constitutional cases, but before an over view of the methodology of the research is required.

IV. METHODOLOGY

This article is based on a mixed method of quantitative and qualitative empirical study. The quantitative research is aimed at locating and coding all constitutional cases on rights’ violations in all legal proceedings, including criminal, civil, and administrative appeals as well as High Court Justice decisions, between 2004 and 2017 (Justice Joubran’s years on the bench).

60 Toi Staff, Arabs face discrimination, says Israeli Arab Supreme Court judge, THE TIMES OF ISRAEL, 27 November 2014.

Michael Bachner, Retired High Court Judge Urges Ex-Colleagues to Overrule Nation-State Law, THE 61 TIMES OF ISRAEL, 31 July 2018. 62 Tzimuki, supra note 58. 63 Id. Draft- please do not circulate

This research was advanced in two stages. The first stage constituted of searching the Israeli Supreme Court open website,64 using the following search words: “rights”, “constitutional”, “equality”. Since this electronic search might include rulings that mention one, two, or all three words, but do not necessary touch upon constitutional issues, a screening process of all rulings was conducted in order to eliminate unrelated cases. In order to retrieve the dissenting opinions delivered by Justice Joubran when voting against the majority ruling, a search using the search words: “dissenting” and “minority” was ran. This search did not locate “dissenting aversion” cases, meaning cases in which Justice Joubran objected to the majority’s decision in a detailed opinion but eventually voted with the majority; the search located only minority reasoning and voting.

A complementary search was conducted in “The Israeli Supreme Court Database,” the Hebrew University’s electronic legal repository, newly-developed by Dr. Keren Weinshall-Margel.65 This website includes all final decisions of the Israeli Supreme Court in cases filed between 2010 and 2018 and decided by a panel of three to nine justices (16,109 cases and 48,634 opinions). This constitutes all of the primary criminal, civil and administrative appeals, election appeals or election approvals, High Court of Justice cases, and additional hearings. The Database also includes data from all other case-types decided by the Israeli Supreme Court (usually by a single judge), as long as a panel of at least three judges wrote the final decision. However, since the data in “The Israeli Supreme Court Database” is from the years 2010 to 2018 and includes only panels of three to nine justices, this search was aimed at providing evidence of the data’s accuracy collected from the official Israeli Supreme Court website regarding dissenting rulings. I also used this electronic repository to collect data on dissenting opinions in constitutional cases between 2010 and 2017, to obtain an overview of the general approach of the Supreme Court Judges.

The second stage aimed to examine whether there are joint elements among the cases in which Justice Joubran delivered dissenting opinions, such as the panel structure, the identity of the parties involved, the time period (his earlier or later years on the bench), and the constitutional issue discussed. Correspondingly, a coding process was conducted according to the following factors: the date of delivery of the decision, the identity of the petitioner or appellant (Arab or Jewish), the identity of the defendant, the Justices’ panel structure (regular or expanded) and the division of the opinions (minority versus majority), the nature of the constitutional issue (freedom of speech, freedom of movement, etc.).

As for the hundreds of rulings in which Justice Joubran was part of the majority opinion, the coding process aimed to explore the following data: the number of cases in which: A. he wrote: “I agree”; B. he was a leading judge; C. he wrote a comprehensive opinion joining another leading judge. Within each category, a coding process of the rulings was conducted based on the identity of the group in question: Arab minority, women, LGBT community,

64 https://supreme.court.gov.il/sites/en/Pages/fullsearch.aspx 65 http://iscdbstaging.wustl.edu/ Draft- please do not circulate

religious group etc., and the result of the ruling: erased, dismissed or accepted the petition – and the correlation to the result in favor or against rights.

After completing the quantitative research, a qualitative legal analysis of the dissenting rulings was followed, aiming at investigating the joint and common reasoning that characterizes Joubran’s dissenting ruling and differentiates him from his Jewish colleagues and here are the results.

V. DIVERSITY IN THE ISRAELI SUPREME COURT: THE CASE OF THE FIRST ARAB JUDGE

A. Quantitative research

The first-stage search in the Israeli Supreme Court open website using the words: “rights”, “constitutional”, and “equality,” resulted 768 cases. The screening process conducted of reviewing all rulings in order to eliminate unrelated cases, resulted in the elimination of 445 cases. These were cases in which one, two, or the three above words appeared in the search, but no constitutional question or issue was raised or discussed. Therefore, the total number of constitutional cases in which Justice Joubran decided is 323, out of which 62 cases resulted in no discussion, whether due to a compromise between the parties involved or the petition or application being erased by their mutual consent; Justice Joubran sided with the majority in 248 cases, and delivered dissenting rulings in 13 cases.66

Considering that 90% of the Israeli Supreme Court’s rulings are delivered unanimously,67 the fact that in 76.78% Justice Joubran was part of the majority is not necessarily exceptional or surprising. According to the Israeli Supreme Court Database, the general dissenting rate between the years 2010–2017 was less than 1 percent.68 Justice Joubran’s, dissenting opinions constitute approximately four percent of all the constitutional cases he participated in hearing. This indicates that relatively, he utilized dissenting opinions to a great extent (four times more than the general dissenting rate).

This primary data has been gathered in Pie 1 below:

66 See table 3. 67 Weinshall-Margel, supra note 52, at 564. 68There was a split only in 120 cases out of 16,109; this does not necessary mean that in these 120 cases there was a dissenting opinion. This merely indicates that the ruling was not unanimous. http://13.59.185.234/analyze?release=1&mode=search&start_date=2010-01-01&end_date=2017-12- 28&opinion_author=&agreed_outcomes%5B%5D=split Draft- please do not circulate

As Table 1 below shows, most of Justice Joubran’s dissenting rulings relate to violations of the rights of the Arab population in Israel, despite the fact that out of the thirteen cases, only four of them were brought by Arabs. The data in Table 1 also shows that 75% of the cases were heard by an expanded panel. On the one hand, one would expect it to be harder for a minority Judge to dissent in an expanded panel of five, seven, nine or eleven Justices, where there might be more opposing voices compared to a regular three-judge panel. On the other hand, the more important and crucial the issue is, the broader the panel will be; therefore, the chance of a minority-group judge having a different opinion than his fellow judges is higher. This data confirms Epstein, Landes, and Posners’ findings that dissenting rates are positively and significantly related to the number of judges and the ideological differences among judges in the circuit.69 Meaning, the more diverse the panel (and the court) the more one may anticipate finding dissenting (and diverse) opinions.

The search was also coded according to the cases’ number of pages. The data shows that in all of Justice Joubran’s dissenting opinions, the length of the cases’ final ruling (of both the dissenting and majority) was more than 50 pages long, 7 cases (58%) were more than 101 pages long. This confirms Epstein, Landes, and Posners’ assertions that dissenting imposes an effort cost on the majority Justices, who write longer rulings because they are obligated to explain their stand, and in some cases, to address the dissenting opinion.70 However, in only 7 cases, the majority addressed Justice Joubran’s dissenting opinion in 2 to 4 paragraphs in average; indicating that his dissent did not impose a burden on the majority that would prevent him from dissenting in the future. Nevertheless, his dissenting might have resulted in longer ruling regardless of the fact that the majority addressed his dissenting or not.

.at 103 ,שגיאה! הסימניה אינה מוגדרת. Epstein, Landes and Posner, supra note 69 70 Id, at 104. Draft- please do not circulate

In any event, it does not seem that the cost of long rulings constituted an institutional factor for Justice Joubran that refrained him from dissenting. This is especially intriguing, considering that, as opposed to the Supreme Court in the United States, the Israeli Supreme Court is extremely overloaded, as it hears all of the country’s petitions and appeals filed.71 According to the 2017 Courts’ Administration Annual Report, 10,213 cases were filed during that year;72 compared to less than 100 cases (out of 7000 submitted) heard in the United States Supreme Court. Similar findings arise also from previous reports.

Furthermore, all cases discuss infringement on either the freedom of speech or the right to equality. This indicates that, as part of the minority that suffers from inequality and discrimination in land allocations, in budget allocations for health, education, and municipal infrastructure,73 in private labor, and in housing markets, the above two issues are close to Justice Joubran’s heart and he is willing to bear the cost of writing a dissenting opinion.74

Table 1: Descriptive Statistics of Justice Joubran’s 13 Dissenting Opinions

Variable Number of Cases

Period of ruling delivery 12, between 2012 and 2016

Panel composition 10, of expanded panel75

Violation of Arab minority’s rights in 10 Israel the Palestinian–Israeli conflict

Defendant identity: the Israeli Knesset/ 12 the Attorney General

Sole dissenting opinion 576

Infringement on the freedom of speech 4

Infringement on the right to equality 7

Number of pages: 1-50 1

Number of pages: 50-100 5

Number of pages: 101 + 7

71 For a more comprehensive comparison on the common and differing characters of the Israeli and United States Supreme Court see: Weinshall-Margel, supra note 47, at 562. 72 Courts’ administration Annual Report 2017, 13 73 ILAN PELEG AND DOV WAXMAN, ISRAEL’S PALESTINIANS: THE CONFLICT WITHIN (Cambridge: Cambridge University Press, 2011).

74 NABIL KHATTAB AND SAMI MIAARI, PALESTINIANS IN THE ISRAELI LABOR MARKET: A MULTI- DISCIPLINARY APPROACH. (New York, NY: Palgrave Macmillan, 2013). 75 Five (one case), seven (2 cases), nine (5 case), eleven (2 cases) judges. 76 Out of which 3 in three panel judges and 2 in expanded nine panel judges. Draft- please do not circulate

As for the low number of dissenting opinions, one could have expected to find two results when coding the cases in which he was part of the majority: 1. That the majority of the cases were “pro-rights” cases that sided with, or promoted human rights, and therefore Justice Joubran would have no need to dissent. 2. That Justice Joubran sided with more “pro-rights” and less “against-rights” cases. However, Table 2 below shows that the cases in which the petition/appeal was rejected were double the cases in which it was accepted. During the coding process I found that cases that were accepted were “pro-rights” and those dismissed were “against-rights”. This means that Justice Joubran sided with the majority in about 65% of the “against-rights” cases, and in 35% of the “pro-rights” cases.

The study did not include “dissent aversions;” therefore, I do not have any data regarding the number of cases in which Justice Joubran voted with the majority but did not join the reasoning. However, one may assume finding dissent aversions in cases where the number of pages is relatively long. The search shows that 26 cases (10% of the cases) were longer than 36 pages (7 cases of 36-50 pages, 17 cases of 50-100 pages, 2 cases of more than 100 pages). If this is a correct assumption, and even if in all these cases Justice Joubran delivered “dissent aversion” opinions, we are still left with unexplained 50% “against-rights” cases. The sole explanation for this finding that I can offer is the effect of institutional factors, mainly of collegiality relations, as found in Epstein, Landes, and Posner’s study.

These findings are surprising, particularly after conducting the qualitative research which indicates that Justice Joubran was a liberal judge that promoted human rights and equality. He appeared to be so also when dealing with multicultural claims and practices of illiberal communities within a liberal democratic society – in a case that challenged the legality of separation between women and men in transportation. In this case, he argued that tolerance and equality are cornerstones of a liberal multicultural society.77 In some instances, his comprehensive liberal rulings became the landmark rational in the Israeli human-rights discourse.78

Table 2 below, which provides data regarding the type of majority opinion (comprehensive ruling, or one simply agreeing with other Justices), shows that Justice Joubran agreed, without writing a comprehensive ruling, in 134 cases, which constitute 54% of the cases. In 114 cases (46%) he delivered a comprehensive opinion as a leading judge, or joined other judges’ rulings. Table 2 also presents the number of cases in which he was part of the majority segmented by rights violations of the different groups involved: the Arab minority, women, religious groups,

77 H.C.J. 746/07 Naomi Ragen v. The Ministry of Transport P.D. 65(2) 44 (2012). In this case, Justice Joubran rejected the practice of separating women from men, stated one should treat separation between men and women in a complex and balanced way, and cited Justice Thurgood Marshall of the Unites States Supreme Court: “A sign that says “Men Only” looks very different on a bathroom door than a courthouse door.” US 468-469 (1985). 78 For example, in a case involving gender-based discrimination in entrance to night clubs, he was the leading judge of the ruling, an stated that the Prohibition of Discrimination Law is intended to protect marginalized groups from the injury of the majority according to the principle of equality. He further noted that the Prohibition of Discrimination Law should be implemented in accordance with the general obligation of equality deriving from values of Human Dignity and Liberty. LCA 8821/09 Pavel Prozansky v. Layla Tov Productions Ltd. Draft- please do not circulate

LGBT community, foreign citizens. The “general topic” row refers to cases where a constitutional discussion that took place did not recognize a violation of rights of a particular group, but raised an issue that concerned all the population. For example, in cases of violation of welfare rights of all of the country’s citizens, the petition itself might be initiated by an Arab or a religious person, but the issue discussed is not unique to any particular group.

The data shows that Justice Joubran’s majority opinions (whether comprehensive or only agreeing with other judges) were more diverse compared to his dissenting opinions, 90% of which dealt with violations of the Arab population’s rights.

Table 2: Descriptive Statistics of the Type of Majority Opinion and of the Group Involved

Variable Number Type of Type of Type of Result of Result of of Cases Ruling: Ruling: Ruling: the case: the case: “I leading Explicit- Accepted Dismissed agree” judge ruling joining another leading judge

Arab 36 20 11 5 13 23 Minority

Women 8 2 3 3 3 5

Religious 7 3 2 2 4 3 Group

LGBT 4 2 - 2 1 3 Community

Disabled 10 10 - - 4 6

Foreign 15 5 3 7 7 8 Citizens (immigrant workers)

Criminal 15 11 1 3 4 11 Law

General 153 81 31 41 52 101 Topic

Total 248 134 51 63 88 160

Draft- please do not circulate

Despite his great contribution to Israel’s legal and judicial system, and his reasoning in his majority opinions on the importance of the value of equality in a multicultural society, this study analyzes only his dissenting rulings, as presented in the following section.

B. Qualitative Research: Insight from Justice Joubran’s Dissenting Rulings

Following the quantitative research, a qualitative legal analysis was carried out, constituting of reading and analyzing the thirteen legal cases in which Justice Joubran gave dissenting rulings. The aim of this step was to investigate the joint and common reasoning that characterizes Justice Joubran’s dissenting rulings with comparison with the majority’s rulling. Note that his reasoning in the dissenting rulings can be found also in his majority rulings, and perhaps also in other dissenting opinions of Jewish judges in other cases. However, what makes this reasoning significant is that it is distinct from the majority opinions in the specific cases of Joubran’s dissenting and thus the assertion is that it provides a different aspect. Also it can shed light on why, when, and how Justice Joubran—an Arab judge in a Jewish panel (and state)—dissented.

Belonging to the largest ethnic minority group in the country constituting twenty percent of its population, imposed great challenges on Justice Joubran’s position, especially when he had to decide on claims regarding the preservation of the Jewish character of the country, which in some cases violated the rights of its Arab citizens.

The main finding was that despite dissenting in very few cases, Justice Joubran’s identity as an Arab Judge was very much apparent in cases where the legality of enactments infringing on the right to equality were challenged – even when not explicitly discriminatory against the Arab population. While using a liberal, “neutral” rhetoric, he also provided a sensitive and contextual analysis that read them as violating the Arab populations’ rights. In such cases, his dissenting decisions were characterized by an unequivocal prohibition on the violation of the principle of equality and the protection of human rights. However, they are also characterized by limited reasoning and unwillingness to directly confront and deal with the complexity of the state’s Jewish nature and its commitment to liberal values. I note here again, that this might be the case also with other Jewish judges, but one would expect an Arab judge to at least bring to the surface the potential tension between the Jewish and democratic obligation of the state. He does so by using the following legal strategies.

Threshold dismissals

In some of the dissenting cases, the petitions were dismissed by the majority based on the “Ripeness” doctrine. According to this doctrine when the legal questions raised require a relatively broad factual basis which are absent at the time of the discussion, the court states that no public interest justifies discussing and ruling on the petition at this stage and that it is impossible to decide on the questions.

When examining the “Ripeness” doctrine, Justice Joubran asserted that where there is potential for great and substantial breach of rights, there should be no waiting for the petition to ripen, Draft- please do not circulate

and it should be heard on its merit. This was his position in the 2011 Sabah case, a petition that challenged the legality of Amendment No. 8 of the Cooperative Societies Ordinance, enabling small communities in the Galil and Negev to establish admissions committees to screen potential residents. In this case, he introduced data regarding the rejection of Arab families to community settlements and of the (Jewish) composition of the community settlements and explained there was no reason to apply the Ripeness Doctrine, as waiting for the petition to “ripen” will lead to severe harm to potential citizens – mainly from the Arab population.79

Contrary to the majority of the Justices that dismissed the petition based on the “Ripeness” doctrine, Justice Joubran provided a factual basis and public justification for the court to interfere. After writing over 20 pages, another two judges joined his dissenting opinion, each writing a three-page ruling without discussing the “Ripeness” doctrine at all, and simply stating in one sentence that they agree with Justice Joubran’s ruling on this issue. This indicates that he established for them the basis for overcoming the threshold dismissal and opened the way for substantive discussion. The factual basis presented by Justice Joubran would have been delivered by other judges as well, as only simple research was required on data regarding rejected Arab families from community settlements. My assertion is that his minority-group affiliation provided him not only with a different view, but also with another motive to search for information on these cases.

In 2015, he gave a similar stand in relation to the discrimination of the Arab population and breach of equality rights when raising the electoral threshold. Justice Joubran again provided data, this time showing that the Arab parties are the group to be potentially harmed by this law. In delivering the dissenting opinion as a sole judge he asserted that the petitions should be heard before the law ever takes effect and inflicts harm.80 One majority judge joined his ruling on the “Ripeness” doctrine, but eventually dismissed the petition.

In this way, Justice Joubran sought to “introduce” petitions to the Supreme Court’s examination, in cases where it was decided the breach is not constitutional.81 In both cases Justice Joubran was the only judge to provide data on the current status of the Arab population, who was the first potential group to be harmed from the enactment in question. Such data was crucial in proving the ripeness of the case.

The Proportionality Test

Israel does not have an official written constitution or a bill of rights, and researchers disagree on whether Israel is a constitutional regime. However, in 1992, two Basic Laws, Basic Law:

79 H.C.J. 2311/11 Uri Sabah v. The Knesset (Nevo, September 17, 2014). 80 H.C.J. 3166/14 Gutman v. The Attorney General (not published, March 12, 2015) 81 Examples of such cases: the abovementioned H.C.J. 3166/14 Gutman v. The Attorney General (not published, March 12, 2015) – raising the electoral threshold; The abovementioned H.C.J. 2311/11 Sabah v. The Knesset (not published, September 17, 2014) regarding admissions committees; H.C.J. 1213/10 Nir v. The Speaker of the Knesset (not published, February 23, 2012) regarding the repeal of the law exempting opposers of the Israeli disengagement from Gaza from criminal liability; b. In H.C.J. 781/15 Arad-Pinkas v. The Surrogacy Agreements Approval Committee according to the Surrogacy Agreements Law (Approval of Agreements and Newborn’s Status), 5756-1996 (not published, August 3, 2017) regarding surrogacy among same-sex couples. Draft- please do not circulate

Human Dignity and Liberty82 and Basic Law: Freedom of Occupation83 were enacted and were together regarded as a “constitutional revolution,”84 as they ratify and ensure human rights values and provide them some form of constitutional supremacy.85 The Basic law: Human Dignity and Liberty is the major legislation that anchors basic human rights: the right to dignity, life, freedom, privacy, property, and the right to leave and enter the country. The Supreme Court’s rulings have opined that the basic law’s guarantee of a right to “human dignity” for all amounts to a guarantee of equality, even though the term “equality” does not appear in any Israeli basic law.86

However, Clause 8 of the Basic Law, titled: “Violation of Rights,” states that there shall be no violation of rights under this Basic Law as long as the violation is: 1. pursuant to a law befitting the values of the State of Israel (as Jewish and democratic); 2. enacted for a proper purpose (such as maintaining the state’s character as Jewish and democratic) and 3. to an extent no greater than is required (the proportionality test).

In most cases, the first two conditions, or tests, require discussion regarding the complexity of the definition of the state as Jewish and democratic, and whether the breach of the Basic Law and of the right in question fits those definitions, whereas the third test usually steers clear from such discussion and requires balancing between rights. Thus, in all cases in which Justice Joubran was confronted with enactments that violated the provisions of the Basic Law, he stated in his dissenting opinions that those enactments pass the first two tests, then centered his legal reasoning on the “proportionality test”. In other words, Justice Joubran’s approach avoided discussing the complexity of the Jewish nature of the state and its commitment to democratic and liberal values that usually arise in the context of violations of the Arab population’s rights, by examining the legality of enactments through the proportionality test.

Such a challenge arose directly in two different petitions in which Justice Joubran delivered a dissenting opinion. Both petitions contested a clause in the Citizenship and Entry into Israel Law, which restricts the Minister of the Interior and the Occupied Territories’ military Commander’s powers to grant license to reside or permit to stay in Israel to Palestinians from the Occupied Territories and/or to individuals originating from enemy countries (usually those who marry Israeli citizens). It was claimed that the clause infringes on the right to family life and violates the right to equality and human dignity.87

In his 2006 opinion regarding the first case, Justice Joubran focused on the right to family life as a basic constitutional right that includes the ability to meet and to choose a spouse. Judge

82 Basic Law: Human Dignity and Liberty, 1992, S.H 150. 83 Basic Law: Freedom of Occupation, 1992, S.H. 114. 84 Michal Tamir, “The Freedom to Exclude,” 49 ISR. L. REV. 237, 238 (2016). 85 Id, at 237, 238. 86 HCJ 10662/04 “Hassan v. The National Insurance Institute of Israel”, not published (28.2.2012); HCJ 366/03 The Association of Peace Commitment and Social Justice v. the Minister of Finance, PD. S (3) 464 (12.12.2005). 87 H.C.J. 7052/03 Adalah – The Legal Center for Arab Minority Rights v. The Minister of the Interior; H.C.J. 466/07 Galon, Meretz-Yahad v. The Attorney General. Draft- please do not circulate

Joubran elaborated on the effect of the law on the Arab population and stated that it may be suspected that the law is intended to promote a demographic policy against the Arab citizens of the state, by maintaining the Jewish character of the state while violating the right to family of the Arab population. Yet, he did not express his position on whether this policy is justified or not.

In 2012 the second round of the case, Justice Joubran focused on a constitutional examination of the amended law, and found that the main constitutional disqualification in his view was not the law being intended for an improper purpose or it contradicting the values of the state as Jewish and democratic, but rather its lack of proportionality. Thus, Justice Joubran reaffirmed that the constitutional proportionality examination should not weigh the right to security versus the right to family life and equality. Instead, the marginal addition of the proper purpose of the law should be examined against the weight of the violation of the constitutional right. Accordingly, Justice Joubran asserted there is no proportionality between the broad scope of the law’s addition to the personal security of Israeli citizens, and the violation of the human rights of the Arab citizens of the state, a violation that includes tagging every Arab citizen as acting against the state and harming their right to family life and equality.

Justice Joubran gave an additional opinion based on the proportionality test in a petition contesting the constitutionality of a law exempting opposers of the Israeli disengagement from Gaza from criminal liability.88 Justice Joubran wrote the sole dissenting opinion against eight Justices, and asserted the above law has to be repealed, as it disproportionately damages the constitutional right to equality when affording a group pardon not granted to “ideology offenders in relation to other deep rifts in Israeli society” such as the Palestinian-Israeli conflict. In addition, Justice Joubran asserted that, especially in the field of criminal law, the constitutional protection of equality must be widened, due to its singularity in infringing on the citizen’s autonomy. Justice Joubran also adjudicated that in relation to its limitations clause, the law is unconstitutional, as it does not pass the proportionality test in its narrow sense. Therefore, Justice Joubran opines there are two possibilities: either protect other “ideology offenders” as well under the right for equality, or not protect “ideology offenders” at all, even when it may prove a procedure that is beneficial to the healing of rifts in Israeli society.

In the Sabah case mentioned above, Justice Joubran was also willing to assume that the clause that enables communities’ settlements to establish admissions committees to screen potential residents fits the first two tests of the Jewish and democratic character of the state, but asserted that the harm it causes was not proportional to its benefits. In a five to four decision, the court declined to strike down the law, yet, basing his ruling on the proportionality test, Justice Joubran scolded his colleagues in the majority, and stated that the law could indirectly discriminate against Israeli Arabs in hundreds of small towns or settlements.89

88 H.C.J. 1213/10 Nir v. The Speaker of the Knesset. 89 H.C.J. 2311/11 Uri Sabah v. The Knesset (Nevo, September 17, 2014). Draft- please do not circulate

He utilized this strategy once again in the abovementioned petition filed against raising the electoral threshold threatening to lead to the exclusion of various population groups from the Knesset, with a stress on the Arab minority.90 Justice Joubran asserted that the proportionality principle is severely infringed upon, because the potential to harm the representation of Israeli minorities is larger than the governance achieved by the law draft. In addition, Justice Joubran introduced a new principle according to which any infringement on the Basic Law must be supported by a special majority of the Knesset. Accordingly, his position was that the petition should be accepted and the updated electoral threshold should be cancelled.

When utilizing the proportionality test, Justice Joubran always applied a liberal point of view, promoting equality and human rights, and thus positioned himself as a liberal judge. By that he also avoided discussing and challenging the tension that arises between the Jewish and Democratic identity of the state. Such a discussion, which can be conceptualized by the hegemonic judges as undermining the legitimacy of state existence, might have caused antagonism from their part and mark Joubran as a "political" Judge. In this sense what characterize his reasoning is that whoever reads his rulings one cannot conclude that it is written by a minority judge. This, I believe, positioned him in a relaxed position to criticize state actions through other aspects.

Contextualizing Rights violations

Justice Joubran’s identity as an Arab Judge was very much apparent in cases where the legality of enactments infringing on the right to equality were challenged – even when not explicitly discriminatory against the Arab population. In these cases he provided a sensitive and contextual analysis that read them as violating the Arab populations’ rights.

For example, he was the sole dissenter on a panel of nine Justices that upheld a law raising to four the minimum number of seats that political parties need to reach the Knesset. He was the only Justice who viewed the law as discriminating against the Arab political parties. Similarly, in the case of the Sabah’s petition, as well as the two cases regarding the Citizenship and Entry into Israel Law, he interpreted the regulation as being based on racial grounds, since in practice the law discriminates against Arabs and non-Jews.91

In their article titled “Let My People Go: Ethnic In-Group Bias in Judicial Decisions – Evidence from a Randomized Natural Experiment”, Gazal‐Ayal and Sulitzeanu‐Kenan examined decisions of Arab and Jewish judges in first bail hearings of Arab and Jewish suspects in Israeli courts. They found support for in-group bias in the likelihood of release, but no support for such bias in the decision on the length of detention.92

90 H.C.J. 3166/14 Gutman v. The Attorney General. 91 See analysis in the paragraphs above. 92 Gazal‐Ayal and Sulitzeanu‐Kenan, supra note 16. Draft- please do not circulate

When examining the freedom of speech cases, one can detect a similar in-group bias in Justice Joubran’s ruling. Thus, he was the sole dissenter in a five-justice panel that upheld the six- month suspension from parliament of Haneen Zoabi, an Arab Member of the Knesset, for comments she made after the kidnapping and murder of three Israeli teens in the West Bank in 2014. Justice Joubran based his decision on two elements: First, he argued that the scope of ethical law on political statements should be in parallel to the substantive immunity provisions, and when it comes to the freedom of expression of Knesset members from a minority, the extent of ethical law in the field of freedom of expression should be expanded. Second, he argued that the Knesset ethics rules should be interpreted in an expansive manner, so that only the clear and extreme nature of the content of his words could serve as a basis for his conviction. He stressed the importance of the scope of freedom of expression given to Knesset members and especially to Knesset members who belong to a minority group, which should be interpreted widely in order for their unique voice to be heard and not excluded.93

Justice Joubran’s group affiliation is apparent also within two contradictory rulings in freedom of speech cases, one regarding expressions by Jews and the other regarding expressions by Arabs. In December 2015 Justice Joubran wrote a dissenting opinion (against Justices Rubinstein and Naor) criticizing the attorney general for closing the criminal investigation against the authors of a book by the name of Torat HaMelech for incitement to violence and incitement to racism. He ruled that the case should be returned to the attorney general for review, due to the broad form in which the offense of incitement to racism must be interpreted. Justice Joubran stated that although the book refers to gentiles in general, there was evidence pointing towards the authors referring to the Arab population in particular. In addition, Justice Joubran noted that there are “evil spirits of racism and hatred of the other that are blowing in our state, that lead to an increase in violence on racial and religious grounds”.

On the other hand, in a judgment delivered in 2016, which dealt with the statements of Sheikh Raed Salah, the leader of the northern branch of the Islamic Movement in Israel, accused of incitement to violence and incitement to racism, Justice Joubran ruled (again in a dissenting opinion against Justice Rubinstein and Baron) that Salah should be acquitted of incitement to violence and incitement to racism. He explained that in relation to incitement to violence, it is not enough to say things with an inciting content, but one must rather examine whether according to the content of the publication and its circumstances, there is a real possibility of an act of violence or terrorism. Justice Joubran argued that Salah’s use of the word “jihad” was taken out of context, saying that the word has nonviolent meanings for struggling against injustice.

In both these cases and in other judgements, Justice Joubran stresses the “evil spirits” pervading Israeli society which lead to racist and xenophobic occurrences,94 and underlines the

93 H.C.J. 6706/14 Haneen Zoabi v. The Knesset’s Ethics Committee 94 These references appear in the following cases: 1. H.C.J. 466/07 Galon, Meretz-Yahad v. The Attorney General P.D. 65(2) 44 (2012) in which he asserts that the Nationality Law Drafts stem from a certain social atmosphere to which he is opposed. 2. H.C.J. 2684/12 12th of Cheshvan The Movement for the Strengthening of Tolerance in Religious Education v. The Attorney General, in which he asserted that Draft- please do not circulate

court’s role in fighting these evil spirits. In addition, Justice Joubran stays faithful to his approach that the punishment for incitement to racism should be expanded - whether it is Jews who call for the killing of gentiles (and, in effect, Arabs), or a Muslim who mentions the blood libels against the Jews in Europe. Eventually, the majority did not indict the authors of Torat Hamelech, but convicted Salah of multiple incitement offences.

CONCLUSION

Both theoretical and empirical studies conclude that ethnic identity plays a crucial role in judicial behavior in multicultural and conflictual societies. This study contributes to two bodies of research that have been conducted separately: the study of identity politics and judicial diversity in courts and the study of dissenting opinions of judges. It provides a combined overview of them by examining a test case of the dissenting opinions of an ethnic minority judge in Israel within the constitutional context, in which the system’s basic values are contested and judges are required to decide on what matters the most for society.

It reemphasize previous research conclusions that ethnic composition of the judiciary system contributes to the voicing of underrepresented groups and add another insight in this regard. It shows that ethnic-minority judges have the ability to contextualize the apparently neutral violations of rights and equality and attribute them to marginalized groups. Minority judges introduce a new voice to the court which indicates that they are a substantive representation and not merely a descriptive one. Therefore, despite the fact that dissenting opinions has no legal value in the final verdict, they are critical to the legal debate as they raise different and distinct aspect of the legal issue at hand.

the “evil spirits” pervading Israeli society require more severe prosecution and punishment for incitement to racism. Draft- please do not circulate

Table 3: Summary of Dissenting Opinions

Date of Case Claimant/ Defendant The Panel’ Majority Dissenting Judgmen Number Petitioner/ Constitutional s size Opinions Opinions t Appellant Issue May 14, H.C.J. Adalah – The Infringement on 11 Cheshin, Barak, 2006 7052/03 The Legal Minister the right to Adiel, Joubran, Center for of the family life, Rivlin, Hayut, Arab Interior dignity and Levy, Beinisch, Minority equality Grunis, Procaccia Rights Naor January H.C.J. Galon, The Infringement on 11 Rivlin, Joubran, 11, 2012 466/07 Meretz- Attorney the right to Grunis, Beinisch, Yahad General family life, Naor, Levy, Arbel, dignity and Rubinstein Hayut equality , Meltzer, Hendel February H.C.J. Eyal Nir The Infringement on 9 Beinisch, Joubran 23, 2012 1213/10 Speaker of the right to Grunis, the equality; Naor, Knesset Infringement on Arbel, the principle of Rubinstein Legality; , Hayut, Infringement on Danziger, the principle of Hendel the Separation of Powers July 2, H.C.J. The The Infringement on 7 Grunis, Rubinstein, 2014 4491/13 College of Governme the principle of Arbel, Joubran Law and nt of Israel Residual Naor, Business Powers Hayut, Solberg

Septemb H.C.J. Amnon The Infringement on 9 Grunis, Arbel, er 17, 3752/10 Rubinstein Knesset the right to Naor, Joubran 2014 Education; Rubinstein Infringement on , Hayut Human Dignity Hendel, and the Freedom Fogelman, of Occupation Amit

Septemb H.C.J. Uri Sabah The Discrimination 9 Grunis, Joubran, er 17, 2311/11 Knesset against Arabs, Naor, Arbel, 2014 Infringement on Hayut, Danziger, the right to Rubinstein Hendel equality , Meltzer January C.F.A. State of Mustafa Infringement on 7 Grunis, Joubran, 15, 2015 5698/11 Israel Dib Mar’i the right of Naor, Danziger, Dirani access to court; Rubinstein Hendel infringement on , Meltzer the right to dignity and equality February H.C.J. Haneen The Infringement on 5 Naor, Joubran 10, 2015 6706/14 Zoabi Knesset’s the Freedom of Rubinstein Ethics Speech , Hayut, Committe Meltzer Draft- please do not circulate

March H.C.J. Yehuda The Infringement on 9 Hayut, Joubran 12, 2015 3166/14 Gutman Attorney the Principle of Meltzer, General Proportional Danziger, Representation; Hendel, discrimination Fogelman, against Arabs, Grunis, infringement on Naor, the right to Rubinstein equality (within the threshold raise) April 15, H.C.J. Uri Avneri The Infringement on 9 Part of the Dissenting– 2015 5239/11 Knesset the Freedom of petition Joubran, Speech; was Danziger infringement on accepted the right to unanimou Sole – equality; sly, while Hendel, infringement on on another Fogelman the Freedom of part, the Occupation Judges were divided in their opinions Majority – Grunis, Naor, Rubinstein , Meltzer, Amit

Decembe H.C.J. 12th of The Infringement on 3 Rubinstein Joubran r 9, 2015 2684/12 Cheshvan Attorney the Freedom of , Naor The General Speech Movement for the Strengthen ing of Tolerance in Religious Education March H.C.J. Abu The Petition for 3 Rubinstein Joubran 24, 2016 1938/16 Alrub, Command Order Nisi and , Barak- HaMoked: er of the Interim Order Erez Center for IDF regarding the Forces in demolition Defense of the West orders against the Bank an Arab family Individual in Qabatiya. April 18, C.A.P. Raed The State Infringement on 3 Baron, Joubran 2016 7669/15 Salah of Israel the Freedom of Rubinstein Mahajna Speech Draft- please do not circulate