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Crusades Against Corruption and Institutionally-Induced Strategies In the Israeli Supreme Court

Crusades Against Corruption and Institutionally-Induced Strategies In the Israeli Supreme Court
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   PLEASE SCROLL DOWN FOR ARTICLE This article was downloaded by: [Sommer, Udi]  On: 16 June 2009  Access details: Access Details: [subscription number 912450109]  Publisher Routledge  Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House,37-41 Mortimer Street, London W1T 3JH, UK Israel Affairs Publication details, including instructions for authors and subscription information: Crusades against Corruption and Institutionally induced Strategies in the IsraeliSupreme Court Udi SommerOnline Publication Date: 01 July 2009 To cite this Article  Sommer, Udi(2009)'Crusades against Corruption and Institutionally-induced Strategies in the Israeli SupremeCourt',Israel Affairs,15:3,279 — 295 To link to this Article: DOI: 10.1080/13537120902983031 URL: Full terms and conditions of use: article may be used for research, teaching and private study purposes. Any substantial orsystematic reproduction, re-distribution, re-selling, loan or sub-licensing, systematic supply ordistribution in any form to anyone is expressly forbidden.The publisher does not give any warranty express or implied or make any representation that the contents will be complete or accurate or up to date. The accuracy of any instructions, formulae and drug dosesshould be independently verified with primary sources. The publisher shall not be liable for any loss,actions, claims, proceedings, demand or costs or damages whatsoever or howsoever caused arising directlyor indirectly in connection with or arising out of the use of this material.  Crusades against Corruption andInstitutionally-induced Strategiesin the Israeli Supreme Court UDI SOMMER In his last public address prior to departure, the recently retired IsraeliSupreme Court Justice, Mishael Cheshin, emphasized that the preventionof corruption was the single most importantthing he wouldlike to leave ashis legacy. In more than one case, Cheshin did not shy from acting uponthis principle. A prime example is  The Movement for Quality Government in Israel v. PM Sharon. 1 In October 2003 the Israeli High Court of Justice (HCJ) delivered alengthy opinion concerning the appointment of Mr Tzahi Hanegbi, to theposition of minister of public security in Prime Minister Ariel Sharon’srecently formed cabinet. Despite petitioners’ contentions and the criminalproceedings against Hanegbi, respondents (Prime Minister Sharon, theattorney-general and Mr. Hanegbi) stressed Hanegbi’s proven executiveskills and failed to see how this appointment was repugnant to the ruleprohibiting a conflict of interests. Seven months prior to the final decision,in March 2003, the case was heard by a three-justice panel. This panel,which consisted of Justices Rivlin, Cheshin and Beinisch, applied forexpansion in August of that year. An expanded seven-justice panel heardoralargumentsinlateAugustandon9OctoberJusticeRivlindeliveredthemajority opinion. Interestingly, a  majority  of the srcinal panel dissentedfrom the decision of the expanded panel. Justice Cheshin registered a meticulous dissenting opinion, and JusticeBeinisch joined him emphatically. Cheshin took full advantage of theplatformhewasgivenasadissenterinabroadlycoveredcontroversialcase,to discuss broader constitutional and ethical considerations—‘this  . . .  is a Israel Affairs, Vol.15, No. 3, July 2009, pp. 279–295 ISSN 1353-7121 print/ISSN 1743-9086 onlineDOI: 10.1080/13537120902983031  q 2009 Taylor & Francis Udi Sommer is an Assistant Professor of Political Science at the University at Albany: StateUniversityofNewYork,UnitedStates.AnearlierversionofthispaperwaspresentedattheAnnualMeeting of the Southern Political Science Association, January 2007, New Orleans, LA. Theauthor is grateful to Eser Sekercioglu for generously sharing his expertise in formal models, andbeingsuchagreatofficemate.IwouldalsoliketothankJeffreySegalforhelpfulcomments.Finally,without the support of Lee Koppelman and the Stony Brook Foundation, this project would nothave been possible.  D o w nl o ad ed B y : [ S o m m e r , Udi ] A t :14 :1616 J u n e2009  matter of basic principles, running deep to the very foundations of our  . . . way of life as individuals and as a society’. 2 Whatmotivated theoriginalpaneltoapplyforexpansion?After all,theexpansion left them on the losing side. Is it possible that strategicconsiderations were underlying this decision? This article seeks to answerthat question for this particular case. In addition, it argues that justices onthe Israeli Supreme Court operate in an institutional environment thatpresents them with incentives to act strategically not just in one case butalso in a systematic way.Scholars have studied strategic behaviour in the Israeli judiciary. 3 Yet,unlike the case for the American Supreme Court, 4 relatively little attentionhas been given to strategic behaviour in the Israeli Supreme Court at thelevel of the collegial game. This project closely examines the institutionalplatform of the court, and asserts that it is conducive to the strategicbehaviour of individual justices in their interactions with their brethren.The influence of strategic thinking on the part of individual justices isnot limited to the collegial game. Such behaviour has importantconsequences for how policy making unfolds as well as for the upshotsof this process. 5 As will be demonstrated in this article, some of the mostconsequential decisions of the Israeli Supreme Court were at least partly aproduct of strategic decision making on the part of individual justices.Policy making in diverse domains (national security, state and religion andseparation of powers,  inter alia ) was fundamentally affected by strategicthinking.To make this argument, a theory about institutional prescriptions (andproscriptions) for judicial decision making is developed in the next section.Then, a formal model is constructed for the internal institutions on theIsraeli Supreme Court and the incentives they create for justices to actstrategically. This model is the first of its kind for the court. Predictions of the theory and the model proposed are juxtaposed with competingtheoretical accounts in the two following sections. Finally, the internalinstitutions of the US Supreme Court are well studied, which makes it agood reference point. The analysis of decision making in the IsraeliSupreme Court thus leads to a cross-sectional comparison with itsAmerican counterpart. In closing, this article demonstrates how theexplanatory power of the proposed theory sheds new light on fundamentalquestions of universalistic versus contextual perspectives in social sciencesin general and in comparative judicial studies in particular. THEORY The neo-institutional literature acknowledges the central role of institutionsin political processes. 6 Yet institutional analysis has focused on the effects of formal and informal institutional arrangements predominately on social ISRAEL AFFAIRS 280  D o w nl o ad ed B y : [ S o m m e r , Udi ] A t :14 :1616 J u n e2009  outcomes, 7 for instance in elections, 8 collective action problems, 9 andproperty rights arrangements. The fact that institutions define a particular  path  for individual behaviour is largely overlooked. Most institutions, inparticular those that govern the functioning of collegial bodies, not onlydefine solutions to decision-making problems but while doing so alsoprescribe courses of action. Rational agents’ utilities, therefore, should notbe defined by outcomes alone.Institutions shape individual strategies with strings of actions theyprescribe. Institutions define an action space through formal and informalconstraints on individual behaviour. Rational agents who interact throughtheinstitutionstructuretheiractionsaccordingly.Asecondarybenefitfromthepathchosen(asopposedtothe  primary benefitfrom theoutcomeitself)is not inherently related to the outcome and may be of various natures.Those secondary benefits sway players’ utility, sometimes considerably.In decision-making bodies in democratic systems diametrically opposedpreferences are always present. In terms of individual utility, the finaloutcome of a decision-making process thus upsets at least a minority of themembers. When the Supreme Court reaches a final disposition or when abill passes, the final decision is rarely unanimous.Throughsecondarybenefits,institutionscreateamanoeuvringspaceforindividuals. Using this space, individual players may change their utilityfunctions. They might lose on the final outcome, but still gain (a great dealsometimes) from their actions earlier in the decision-making process. Formembers of a collegial body, therefore, the  process  of decision making andthe secondary benefits it offers are consequential to their utility.Strategic individuals would consider the final outcome  alongside  thepaths that lead to it. For example, if legislative roll-call votes are recordedandmadepublic,legislatorsmightbemotivatedtovoteratherthanabstaineven if their most preferred option has no chance of winning. Voting willserve as an identifier that allows them to secure secondary benefits in theform of campaign contributions, media coverage or the sympathy of voters. Likewise, even if in a minority, judges often prefer to express theirviews. Despite their costliness, dissenting opinions often carry significantsecondarybenefits.Thetypesofsecondarybenefitsareconsequentialtothekinds of strategic behaviours developed. For instance, as will bedemonstrated shortly, in the Israeli and American supreme courts,disparate internal institutions prescribe different paths. Those in turninduce quantitatively as well as qualitatively dissimilar strategic judicialbehaviour.In the analytic framework offered, strategic behaviour in the same typeof institution (courts in this case) would vary as a function of the specificinstitutional design and the particular action space it provides for actors.This is what will be referred to as  institutionally induced   strategicbehaviour. CORRUPTION AND THE ISRAELI SUPREME COURT  281  D o w nl o ad ed B y : [ S o m m e r , Udi ] A t :14 :1616 J u n e2009  LEGAL, ATTITUDINAL AND STRATEGIC MODELS To place the theory with respect to existing approaches, this section brieflydescribes the three major models of judicial decision making. The LegalModel of judicial decision making is what some would also call the Law School Model  . People in the legal community tend to believe that thismodel explains how justices make decisions. Plain meaning of theconstitution and the statutory texts, the intent of the framers (or thelegislators), and  stare decisis  influence judicial decision making in thismodel. 10 Under this doctrine, courts adhere to precedent. This ensurescertainty, consistency and stability in the administration of justice. Judges in the appellate or trial courts should find the legal model (and stare decisis  in particular) binding. Supreme Court justices, on the otherhand, might have more leeway for several reasons. Among other things,they serve on the court of last resort, their public accountability is tenuous,and they seldom have ambitions for higher posts. All these factors makeit harder to constrain justices from voting according to their preferences.The Attitudinal Model, well established for the US Supreme Court (USSC),takes this last point a step further. 11 Attitudinalists argue that judges’ideologicalpreferencesarethemajorpredictoroftheirvotes.Thenotionof justices voting according to their preferences was disputed within theacademic community. Both legal scholars and political scientists havefound it hard to accept the attitudinal argument. 12 Despite some attempt to find a middle ground between the attitudinaland the legal models, 13 Separation of Powers (SoP) scholars take yet adifferentview.Giventheconstitutionalstructureofchecksandbalances,inorder to understand how judges decide cases one has to inspect theinterrelations between ‘the legislative, executive and judiciary depart-ments’. 14  Justices are not free to vote according to their preferences.The various players and the court itself are rational, and thereforestrategically rational. 15 Unlike attitudinalists, SoP scholars claim that autility-maximizing court takes the possibility of Congressional overrideinto account when making decisions. The strategic model applies to courtsof appeals, 16 the US Supreme Court, 17 and foreign courts. 18 Controversies concerning the fit of strategic models to describe how thecourt acts on the inter-branch level are omnipresent in the literature. 19 Yetwhen it comes to the level of the collegial game, there is compellingevidence for the constraints imposed on justices. Constrained justices actstrategically with their brethren, for instance during opinion assignmentand opinion drafting. 20 Thefocusofthis articleisstrategicbehaviouratthelevelofthecollegialgame. The next section presents a formal model of the internal institutionsoftheIsraeliSupremeCourtandhowtheyinducestrategicbehaviourwhenjustices interact with each other. Given this model, the fourth section ISRAEL AFFAIRS 282  D o w nl o ad ed B y : [ S o m m e r , Udi ] A t :14 :1616 J u n e2009
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