Draft- please do not circulate 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 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”. The idea behind descriptive representation is that striving for courts to resemble the population is, in and of itself, a significant end,1 because the actual presence of women and minorities on the bench, regardless of whether they rule distinctively, provides a stronger sense of legitimacy and authority to minority groups. Later, it was asserted that descriptive representation can, and should add value to substantive representation, enhancing the political, legal, and moral interests of underrepresented groups of minorities.2 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-