¹ The Peace Index poll conducted by the Tami Steinmetz Center for Peace Research shows that 82% of the Jewish population had confidence in the Court in 1996; 84% in 1997; 79% in 2000 and only 69% in 2001. Ephraim Ya'ar, Tamar Herman, Peace Index (August 1996, January 1997, January 2000, December 2001). available at http://www.tau.ac.il/peace/ (follow the English site hyperlink; then follow the “Peace Index” hyperlink, search “Questionnaire Catalogue” option, search according to month). The annual survey of the Israeli Democracy Institute shows that 70% (2003), 79% (2004), 72% (2005), 68% (2006), 61% (2007). 49% (2008) of the Israeli public have confidence in the Court. See Arian, Asher, Nachmias, David, Navot, Doron & Shani, Danielle, Auditing Israeli Democracy 2003 132, 185 (2003)Google Scholar; Arian, Asher, Hermann, Tamar, Atmor, Nir, Hadar, Yael, Lebel, Yuval & Zaban, Hila, Auditing Israeli Democracy 2008Google Scholar: Between the State and Civil Society 54 (2008) [in all of these polls “high confidence” and “some confidence” in the Supreme Court were joined to one category: confidence in the Court]. In 2006 a survey sponsored by an Israeli newspaper showed that 27% of the Israeli public expressed full confidence in the Supreme Court; 18% some confidence; 33% low or partial confidence, and 19% no confidence at all. Gravitz, Yael & Zimoki, Tova, The Lightning has Gone, Yediot Aharonot, Sept. 1, 2006, 16, at 18Google Scholar [in Hebrew]. See also Dotan, Yoav, Does Israel Need a Constitutional Court?, 5 Mishpat U'mimshal 117, 159 (2000)Google Scholar [in Hebrew] (discussing the erosion in the public confidence in the Court in recent years); Gavison, Ruth, The Israeli Constitutional Process: Legislative Ambivalence and Judicial Resolute Drive, 11 Rev. Const. Stud. 345,376 (2006)Google Scholar (notes that support for the Supreme Court has been declining since the beginning of the 21st Century).

² Mautner, Menachem, The Decline of Formalism and the Rise of Values in Israeli Law 130 (1993)Google Scholar [in Hebrew]; Witkon, Alfred, The Substantive Right in Administrative Law, 9 Iyunei Mishpat 5 (1983)Google Scholar, reprinted in Justice and the Judiciary 147, 150-51, 167 (1988)Google Scholar [in Hebrew]; Gavison, Ruth, Kremnitzer, Mordechai, & Dotan, Yoav, Judicial Activism, For and Against: The Role of the High Court of Justice in Israeli Society 65 (2000)Google Scholar [in Hebrew] (“In the beginning of the 1980s, when the trend of intervention began, the senior judges of the Supreme Court (led by Judges Witkon and Landau) warned of over-intervention by the Court in sensitive matters that are subject to controversy …. They predicted that such intervention will lead … in the end, to a decline in its public position.”)(Dotan); Kedar, Nir, Interpretive Revolution: The Rise of Purposive Interpretation in Israeli Law, 26 Iyunei Mishpat 737, 762 (2002)Google Scholar [in Hebrew] (“Indeed, the Supreme Court, and especially Judge Barak were warned by academic observers that the changes in judicial rhetoric and in the Supreme Court's policy of intervention may be dangerous in the final account because trespassing into the political branches' realm may undermine the basis of the Supreme Court's legitimacy”). Cf. Casey, Gregory, The Supreme Court and Myth: An Empirical Investigation, 8 L. & Soc'y Rev. 385, 388 (1974)Google Scholar (in the U.S. prominent scholars “suggest that the Court risks its legitimacy when it intrudes or stumbles on highly-charged and emotion[ally]-laden political issues.”), id. at 396,407.

³ Barzilai, Gad, Yuchtman-Ya'ar, Ephraim, & Segal, Zeev, The Israeli Supreme Court and the Israeli Public 76 (1994)Google Scholar [in Hebrew] (In 1991, 78.1% of the Jewish public had high trust in the Court, 17.7% had some trust). For a short summary of this study in English see Barzilai, Gad, Courts as Hegemonic Institutions: The Israeli Supreme Court in a Comparative Perspective, in Israel—The Dynamics of Change and Continuity 15 (Levi-Faur, David, Sheffer, Gabriel & Vogel, David eds., 1999)Google Scholar. See also Yuchtman-Ya'ar, Ephraim & Peres, Yochanan, Between Consent and Dissent: Democracy and Peace in the Israeli Mind 3, 25, 37-39, 44-45, 66–67 (2000)Google Scholar (Two public polls conducted among the Jewish, Hebrew-speaking population in January 1994 and January 1995 showed that 85% fully trust the Court, 10% trust somewhat and 5% do not trust the Court); Zimoki, Tova, 82% of the Public has Confidence in the Supreme Court, Yediot Aharonot, Aug. 29, 1996, at 12Google Scholar. Barzel, Bina. The Drawer from the Mafdal [National Religious Party], Yediot Aharonot. June 12, 1998, at 10Google Scholar. (A 1998 poll showed that 75% of the public had confidence in the Supreme Court). Arian, Asher & Nakdimon, Shlomo, A Decline in Confidence in the Police and the Courts, Yediot Aharonot, Aug. 6, 1999, (The Saturday Supplement) at 21Google Scholar (In 1999 two polls showed 85% and 83% of the public having confidence in the Supreme Court. These polls included Israeli Arabs.).

⁴ This situation is best captured by Dotan who describes “a growing activism” of the Supreme Court that does not cause, as expected, a decline in public confidence. “Actually, the opposite is true,” writes Dotan: “As the Court expanded its fields of intervention, its public position strengthened. Studies from the early 1990s prove that the Supreme Court enjoys the highest level of public confidence regarding all aspects of intervention in the doings of other government's authorities.” Gavison, Kremnitzer, & Dotan, supra note 2, at 65.

⁵ In using the term “mythical” I do not intend to imply that this image of the Court is completely fictitious. My use of the term is to illuminate the sacred, noble image the Court has, an image that does not necessarily reflects its function. For a similar use of the term “myth” see Novick, Peter, That Noble Dream: The ‘Objectivity Question’ and the American Historical Profession 3–4 (1988)CrossRefGoogle Scholar. For a similar use in studies examining the Court's institutional legitimacy see Barzilai, Yucktman-Ya'ar, & Segal, supra note 3, at 60-61, 72; Barzilai, Gad, Courts as Hegemonic Institutions and Social Change, 3 Politics 31, 40 (1998)Google Scholar [in Hebrew] (“A myth is not necessarily a total fiction. A myth means a combination of reality and imagination and that is the source of its social and political power.”).

⁶ My claims regarding the coverage of the Court in newspapers are based on Bogoch, Bryna & Holzman-Gazit, Yifat, Mutual Bond: Media Frames and the Israeli High Court of Justice, 33 L. & Soc Inq. 53, 55, 77, 79 (2008)Google Scholar. However, while this Article examines the coverage of the Court in connection to its institutional legitimacy, Bogoch's and Holzman-Gazit's article is media oriented and does not focus on the developments in the Court's institutional legitimacy.

⁷ Or Bassok, Television Coverage of the Israeli Supreme Court between 1993 and 1996: The Court's Mythical Image—A Death of a Thousand Soundbites (Dec. 14, 2007) (unpublished manuscript. on file with the author).

⁸ There are different definitions of the term “legitimacy.” I use the term “institutional legitimacy’ as a sociological concept indicating generalized consent, trust, faith, and confidence in an institution. Though it is not obvious that legitimacy can be directly measured in polls, my analysis equates institutional legitimacy with the closely related concepts of public confidence and public trust in the Court. See Shamir, Ronen, “Landmark Cases” and the Reproduction of Legitimacy: The Case of Israeli's High Court of Justice, 24 L. & Soc'y Rev. 781, 783 (1990)Google Scholar; Ansell, C.K., Legitimacy: Political, in International Encyclopedia of the Social & Behavioral Sciences 8704–06 (Smelser, Neil J. & Baltes, Paul B. eds., 2001)CrossRefGoogle Scholar; Fallon, Richard H. Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1790-91, 1794-96, 1828 (2005)Google Scholar (reviewing different concepts of legitimacy notes that “social scientists commonly equate the Court's institutional legitimacy with what they call ‘diffuse support’ among the public, as reflected in opinion surveys.”); Gibson, James L., Caldeira, Gregory A., & Spence, Lester Kenyatta, Measuring Attitudes toward the United States Supreme Court. 47 Am. J. Pol. Sci. 354, 358 (2003)CrossRefGoogle Scholar (characterize institutional legitimacy as, among other things. “a generalized trust that the institution will perform acceptably in the future.” The authors equate the following terms: institutional legitimacy, diffuse support, and institutional loyalty.); Gibson, James, Understanding of Justice: Institutional Legitimacy. Procedural Justice, and Political Tolerance, 23 L. & Soc'y Rev. 469, 487 (1989)Google Scholar (doubts whether legitimacy can be measured in survey research). The difference American writers sometimes specify between public confidence and legitimacy is based mostly on measuring public confidence in the leaders of the institution /“the people running” the institution. Polls conducted in Israel measure public confidence in the institution. See Gibson, Caldeira, & Spence, supra, at 355-57, 361-64; Grosskope, Anke & Mondak, Jeffery J., Do Attitudes toward Specific Supreme Court Decisions Matter? The Impact of Webster and Texas v. Johnson on Public Confidence in the Supreme Court, 51 Pol. Res. Q. 633,641 (1998).Google Scholar

⁹ The category consists of coverage of the appointment, retirement and death of judges, the construction of the new dwellings for the Supreme Court as well as public addresses given by judges and any reflective item (not related to any specific case) on the Court.

¹⁰ The source of this aphorism is Harrington, James, The Commonwealth of Oceana, in The Political Works of James Harrington 155, 170–82 (Pocock, J. G. A. ed., 1977)Google Scholar. A variant of this aphorism is the aphorism “government of laws and not of men” which was imported to American discussion from Harrington's writings by John Adams and adopted by Chief Justice John Marshall. See Marbury v. Madison, 5 U.S. 137, 163 (1803).

¹¹ The Federalist No. 78, at 523 (Alexander Hamilton) (Jacob E. Cook ed., 1961). The U.S. Supreme Court has repeated this dictum in several judgments. See, e.g., McCreary County v. ACLU, 545 U.S. 844, 892-93 (2005) (Justice Scalia dissenting); U.S. v. Lee, 106 U.S. 196, 223 (1882).

¹² Unless explicitly said otherwise, I solely discuss the Israeli Supreme Court. However, many of the claims are based on claims made by American scholars concerning the U.S. Supreme Court.

¹³ Baker v. Carr, 369 U.S. 186, 267 (1962) (Justice Frankfurter dissenting: “The Court's authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction.”); Republican Party of Minnesota v. White, 536 U.S. 765, 817-18 (2002) (Justice Stevens dissenting: “Because courts control neither the purse nor the sword, their authority ultimately rests on public faith in those who don the robe.”). See also Levasseur, Alain A., Legitimacy of Judges, 50 Am. J. Comp. L. 43, 67 (2002)CrossRefGoogle Scholar (“[I]t is in the trust, confidence, and acceptance of the People that the Supreme Court finds the moral grounds of its legitimacy”).

¹⁴ The Israeli Supreme Court has stated that “[i]t is famously known that at the basis of the democratic regime stands public confidence in judges. As De Balzac noted, lack of confidence in the judiciary is the beginning of the end of society.” HCJ 5364/94 Velner v. Chairman of Israeli Labor Party [1995] IsrSC 49(1) 758, 785–86Google Scholar (Deputy President Barak) see also id. at 826 (Judge Cheshin). See, e.g., HCJ 4481/91 Bargil v. The Government of Israel [1993] IsrSC 47(4) 210, 220Google Scholar (Judge Goldberg); HCJ 732/84 Tzaban v. Minister of Religious Affairs [1986] IsrSC 40(4) 141, 148–49Google Scholar (Judge Barak). See also Barak, Aharon, The Judge in a Democracy 109 (2006)Google Scholar (“An essential condition for realizing the judicial role is public confidence in the judge.”) Barak, Aharon, On Authorities and Values in Israel (1995)Google Scholar reprinted in Selected Essays 375, 383 (2000)Google Scholar [in Hebrew]. (“A judge does not have a purse or a sword. All that he has is public confidence in him. The Court cannot function without public confidence”). Former Supreme Court judge, Haim Cohen, noted that “If there is one opinion which all Supreme Court judges seem to agree on, it is the need for public confidence in the Supreme Court.” Cohen, Haim, Thought of Disbelief in Public Confidence, in Sefer Shamgar 365, 365, 370–71 (Barak, Aharon et al. eds., 2003)Google Scholar [in Hebrew].

¹⁵ Gibson, James L., Caldeira, Gregory A., & Baird, Vanessa A., On the Legitimacy of Nationa1 High Courts, 92 Am. Pol. Sci. Rev. 343, 343 (1998)CrossRefGoogle Scholar:

([N]ot even the most powerful courts in the world have the power of the ‘purse’ or ‘sword’; with limited institutional resources, courts are therefore uncommonly dependent upon the goodwill of their constituents for both support and compliance… Without institutional legitimacy, courts find it difficult to serve as effective and consequential partners in governance.).

Gibson, James L. & Caldeira, Gregory A., Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court, 65 J. Pol. 1, 5 (2003)CrossRefGoogle Scholar (“some empirical evidence does indeed support the conventional wisdom that ‘the greater the perceived legitimacy of the Court, the greater the probability that its policies will be accepted and faithfully implemented.”); Slotnick, Eliot E. & Segal, Jennifer A., Television News and the Supreme Court, All The News That's Fit To Air? 5, 231–32 (1998)CrossRefGoogle Scholar; Davis, Richard, Decisions and Images: The Supreme Court and the Press xii, 1–2, 146 (1994)Google Scholar; Barzilai, supra note 3, at 15-16; Esterling, Kevin M., Public Outreach—The Cornerstone of Judicial Independence, 82 Judicature 112, 112 (1998)Google Scholar. But see Sarat, Austin, Studying American Legal Culture: An Assessment of Survey Evidence, 11 Law & Soc'y rev. 427, 456 (1977)CrossRefGoogle Scholar ([S]urvey data cannot refute the hypothesis that ’legal institution function quite as efficiently with low levels of support as with high.”).

¹⁶ Davis, supra note 15, at 1-3; Barak-Erez, Daphne, Milestone Judgments of the Israeli Supreme Court 122–23 (2003) [in Hebrew]Google Scholar; Paletz, David L. & Entman, Robert M., Media Power Politics 100 (1981)Google Scholar (“Justices must strive to maintain the legitimacy of the Court as an institution.”)

¹⁷ Slotnick & Segal, supra note 15, at 7-8, 193; Sager, Kelli L. & Frederiksen, Karan N., Televising The Judicial Branch: in Furtherance of the Public's First Amendment Rights, 69 S. Cal. L. Rev. 1519, 1540–41 (1996)Google Scholar; Friedman, Barry, Mediated Popular Constitutionalism, 101 Mich. L. Rev. 2596, 2599 (2003)CrossRefGoogle Scholar (“[T]he public's understanding of what judges do is filtered, not only through these representatives, but through the media and other sources as well.”). See also id. at 2621 (“people learn about decisions of the Supreme Court the same way they learn about most things: from the media, and from the statements of public opinion leaders.”).

¹⁸ See Davis, supra note 15, at 2; Grey, David L., The Supreme Court and the News Media 44–45 (1968)Google Scholar; Slotnick & Segal, supra note 15, at 8. However, it should be stressed that even for professionals, media coverage of the Court is an important resource. See Bogoch & Holzman-Gazit, supra note 6, at 54; Kamman, Michael, A Machine that would Go of Itself 359 (1986) (2d ed. 2006)Google Scholar (Most of American government officials, including members of the Congress and even lawyers “depend heavily upon the Post and Times to learn what has been decided [by the Court], its implications, and to read what a single reporter regards as the most significant extracts.”).

¹⁹ I refer to this group as “the general public.” I prefer this term over other terms used in literature to express a similar meaning. Haltom, William, Reporting on the Courts—How the Mass Media Cover Judicial Actions 15–16 (1998)Google Scholar (uses the term “inadvertent audience”).

²⁰ Statman, Daniel, The Status of Morality in the Eyes of the Supreme Court, 19 Mehkarei Mishpat 569, 583 (2003)Google Scholar [in Hebrew] (“Most of the public does not read the judgments and the educational message transmitted from the Court is received by the public via the coverage of the media.”). For similar claims regarding the U.S. Supreme Court see Davis, supra note 15, at xi, 2, 16, 31; Haltom, supra note 19, at 11-12, 15, 288; Slotnick & Segal, supra note 15, at 2, 8-9, 102-03, 231, 237-38; Thaler, Paul, The Watchful Eye: American Justice in the Age of the Television Trial 8 (1994)Google Scholar (“It is often argued that television is but one medium used to inform the public about the courts and the law. However, television must be considered the most pervasive and potent source of information and news”); Piccus, Todd, Demystifying the Least Understood Branch: Opening the Supreme Court to Broadcast Media, 71 Texas L. Rev. 1053, 1084–85, 1097 (1993)Google Scholar. U.S. Chief Justice Berger noted that “[i]nstead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572-73 (1980). Regarding the Canadian Supreme Court see Sauvageau, Florian, Schneiderman, David, & Taras, David, The Last Word 40 (2006) (“Since most people get their news mainly from television, we can conclude that their knowledge of the Supreme Court's activities is limited.”)Google Scholar.

²¹ Davis, supra note 15, at 16. See also id. at 137.

²² Taylor, Charles, Modern Social Imaginaries 23–30, 50 (2004)CrossRefGoogle Scholar (explains the concept of social imaginary); McCombs, Maxwell & Gilbert, Sheldon, News Influence on Our Pictures of the World, in Perspectives on Media Effects: Advances in Theory and Research 3, 7, 11 (Bryant, Jennings & Zillmann, Dolf eds., 1994)Google Scholar (Empirical studies show that when the public lacks firsthand, personal experience with an institution, news media exercise a near monopoly as a source of knowledge of that institution.).

²³ CA 353/88 Vilner v. The State of Israel [1991] IsrSC 35(2) 444, 450–51Google Scholar. A committee headed by Judge Dorit Beinisch (now the Supreme Court President), established in order to examine the idea of allowing electronic media in the courtroom, noted: “no one denies that in the media age, in which we are living, the media serves as the public's long arm for gathering and publishing information on Court's proceedings…the majority of the public does not come to courts' halls in order to watch the hearings.” The Beinisch Report 16, 70–71 (2004)Google Scholar.

²⁴ Barzilai, Yuchtman-Ya'ar & Segal, supra note 3, at 68, 216-17. Most of the ultra-Orthodox Jews (Haredim) do not have television sets in their homes. In most of the poll results used in this Article, ultra-Orthodox Jews were not represented or were under-represented. Hence, since most of the polls mainly deal with secular Jews and religious Jews, who watch television, my explanation for the lack of decline in the support of the Court is unspoiled by the avoidance of ultra-Orthodox Jews from watching television. See Yuchtman-Ya'ar & Peres, supra note 3, at 113, 119.

²⁵ Ezrhai, Yaron, The Descent of Icarus: Science and the Transformation of Contemporary Society 69–70 (1990)Google Scholar.

²⁶ Shaw, David, Media Coverage of the Courts: Improving but Still not Adequate, 65 Judicature 18, 24 (1981)Google Scholar; Davis, supra note 15, at 16, 99; Slotnick & Segal, supra note 15, at 33-35, 238; Piccus, supra note 20, at 1088.

²⁷ Rules of Ethics for Judges, 2007, KT 6591, 934 (provisions 39-40). These rules have been enacted by the Supreme Court President after consultation with the Minister of Justice in accordance with a 2006 amendment to the Courts Law. Courts Law (Amendment No. 43) 5766-2006, S.H. 284. The 2007 rules regarding judges' relationships with the media are similar to the earlier rules codified in the Judiciary Ethics Code, section 7(3) (1993) (on file with the author). The 1993 rules were not codified as mandatory regulations and thus were never published in an official publication. The Supreme Court maintained that the 1993 rules were only “guiding and directing” rules for judges with a “high moral weight.” See HCJ 1622/00 Yoav Yitzhak v. President Aharon Barak [2000] IsrSC 54(2) 54, 63Google Scholar.

²⁸ Several judges did not follow the 1993 rules and spoke with reporters “off the record,” bringing their decisions to their attention. See Arbel, Oded, Roeh, Anat, & Ben-Zruya, Amit, The Judges: “We are Fed Up of planting Reactions and Speaking with Reporters in Secret, “The Marker, Jan. 1, 2006,Google Scholar at 28 [in Hebrew]; Peleg, Anat, Reluctant Partners: The Relationship between Judges and the Media in Israel 4, 126–29 (May 2006) (unpublished M.A. dissertation, Bar Ilan University)Google Scholar (on file with the Bar Ilan Library).

²⁹ Cf. Slotnick & Segal, supra note 15, at 33-35; Davis, supra note 15, at 47-48, 99-101.

³⁰ One such occasion was President Barak's statement that he regrets the use of the phrases “the enlightened public” and “everything is justiciable” in his judgments. Barak claimed that his rhetoric was misinterpreted. Ilan, Shachar, Barak Regrets “the Enlightened Public” and “Everything is Justiciable,” Harretz, May 15, 2001Google Scholar, at A1 [in Hebrew].

³¹ The Court may acknowledge the importance of a judgment in varied manners. For example in the reporting of the Bank Hamizrachi judgment (CA 6821/93 United Mizrachi Bank v. Migdal Agricultural Cooperative [1995] IsrSC 49(4) 221Google Scholar), where the Court in essence adopted the “constitutional revolution” thesis, the reporter noted that “President Aharon Barak invited today scholars to the Supreme Court in order to explain and analyze the 519 pages judgment.” Mabat, item no. 25629-95 (IBA, Nov. 11, 1995).

³² See infra text accompanying notes 138-139. No wonder that the functions of the Public Information Office of the U.S. Supreme Court “are designed to reinforce the message that the Court is unconcerned about public opinion.” For example, the “The PIO focuses press attention on the product by emphasizing it and hopefully by channeling press energy to the written opinions and away from the process and the individual judges.” Davis, supra note 15, at 47.

³³ Planned Parenthood v. Casey, 505 U.S. 833, 865 (1992).

³⁴ Davis, supra note 15, at 3; Haltom, supra note 19, at 33. 114-15; Balkin, Jack M., Bush v. Gore and the Boundary Between Law and Politics, 110 Yale L.J. 1407, 1451–52 (2001)CrossRefGoogle Scholar (“So in practice when people speak of a court's ‘moral legitimacy’ or ‘procedural legitimacy,’ they may not mean whether courts actually are fair and just but whether people believe that they are fair and just.”); Gibson, James L. & Caldeira, Gregory A., Blacks and the United States Supreme Court: Models of Diffuse Support, 54 J. Pol. 1120, 1121 (1992)CrossRefGoogle Scholar (“Institutional legitimacy, and ultimately compliance, depend in some degree upon the beliefs held by members of the political system.”), see also at 1134 (public attitudes toward the Court “affected more by the perception of institutional outputs than by actual policy decisions”); Shaw, supra note 26, at 24.

³⁵ Katsh, Ethan, The Supreme Court Beat: How Television Covers the U.S. Supreme Court, 67 Judicature 7, 8 (1983)Google Scholar.

³⁶ The channel was created on the British BBC's model. Though the broadcasting supervising authority has been controlled by politicians, most commentators agree that by and large, the news edition itself has not been politicized. Sofer, Edi, Israeli Television in the B.B.C Fashion 30, 44–49, 52–55, 77–78 (1982)Google Scholar [in Hebrew] (The IBA did not become a propaganda tool for the government.).

³⁷ At first, Channel One's broadcast was restricted to only a few days every week, but it began broadcasting every day in November 1969. See Sofer, supra note 36, at 38, 40. The main news edition broadcast on Friday is called Yoman [Journal] (in previous years it was called H'Shavua) [The Week] and contains a magazine part. Since 1988, the main news edition on Saturday is called Roim Olam [Seeing the World]. For the purposes of the research these editions are equivalent to Mabat. I do not mean to suggest that Mabat was the sole television venue providing the public with information about the Court. However, the centrality of Mabat during these years (see infra text accompanying notes 54-55) made it the most prominent source of information for the Israeli public. Cf. Slotnick & Segal, supra note 15, at 237 (in the U.S. “the evening newscasts remain, nevertheless, the primary vehicle through which most of the public, most of the time, will obtain its information about what the Court has done”). In 1985 a special reporter was designated to the legal field. Two reporters covered the Court in the period relevant to this paper: Amir Shabiv (the end of 1985 until mid 1987) and Shlomo Arad (1988 until mid 1994).

³⁸ This Article contains some data on the Court's coverage until 1996. However, this data was used only when it could shed light on the character of coverage until 1992.

³⁹ Bogoch & Holzman-Gazit, supra note 6, at 55.

⁴⁰ O'Callaghan, Jerome & Dukes, James O., Media Coverage of the Supreme Court's Caseload, 69 Journalism Q. 195, 202 (1992)CrossRefGoogle Scholar; Haltom, supra note 19, at 42-43 (describing the mirror metaphor).

⁴¹ On the media's selection criteria in covering courts see Davis, supra note 15, at 21-23, 35-36; Sauvageau, Schneiderman, & Taras, supra note 20, at 198; Slotnick & Segal, supra note 15, at 11, 74, 201; Davis, Richard, Lifting the Shroud: News Media Portrayal of the U.S. Supreme Court, 9 Com. & L. 43, 51–53 (1987)Google Scholar [hereinafter Davis, News]; Mather, Lynn, Courts in American Popular Culture, in The Judicial Branch 233, 242–43 (Hall, Kermit L. & McGuire, Kevin T. eds., 2005)Google Scholar. On the rise of ratings as a major criterion for selecting news items in Israel after 1993 see Kaneti, Nurit, News-Business, 70 The Seventh Eye 24, 25 (Jan. 1, 2008)Google Scholar [in Hebrew]. This Article does not focus on the media's motives for preferring covering of certain cases over others, but rather on the Court's image which is the result of media's preferences.

⁴² McCombs & Gilbert, supra note 22, at 3.

⁴³ Slotnick & Segal, supra note 15, at 6, 119; Grey, supra note 18, at 7, 15, 55, 91; Haltom, supra note 19, at 2; Thaler, supra note 20, at 8, 202.

⁴⁴ Thaler, supra note 20, at xxii-xxiii, 3-4, 6, 71.

⁴⁵ Sauvageau, Schneiderman, & Taras, supra note 20, at 29. Though media biases have an essential role in portraying the Court's image, I do not deny of course that “The Court's own decision obviously has an impact on the way it work is regarded.” Friedman, Barry, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 Yale L.J. 153, 173 (2002)CrossRefGoogle Scholar.

⁴⁶ Slotnick & Segal, supra note 15, at 2, 10; Hoekstra, Valerie J., Public Reaction to Supreme Court Decisions 6 (2003)CrossRefGoogle Scholar; Bogoch & Holzman-Gazit, supra note 6, at 55.

⁴⁷ Caldeira, Gregory A., Public Opinion and the U.S. Supreme Court: FDR's Court-Packing Plan, 81 Am. Pol. Sci. Rev. 1139, 1142–43 (1987)CrossRefGoogle Scholar (quoting studies showing that the media are usually not successful in telling people what to think, but are successful in telling people what to think about, setting the national agenda).

⁴⁸ Barzilai, supra note 3, at 21, 25-26, 30; Barzilai, Gad, The Political and Legal Culture in Israel in 2 Trends in Israeli Society 707, 790 (Ya'ar, Ephraim & Shavit, Ze'ev eds., 2003)Google Scholar (“[T]he Supreme Court enjoyed mythical presentation as a neutral, mamlachti [above sectarian interests], non-partisan institution thus naturally gaining high public legitimacy.”). Compare in the U.S. during the 1970s: Sarat, supra note 15 at 440, 467-69 (surveying articles demonstrating that Court's support was based on its mythical image); Casey, supra note 2, at 398 (“[T]he conclusion the Court's myth enjoys widespread diffusion is certainly justifiable.”) id. at 402.

⁴⁹ Barzilai, supra note 3, at 16-17; Barzilai, Yuchtman-Ya'ar & Segal, supra note 3, at 60-61, 72-74. The poll conducted by Barzilai, Yuchtman-Ya'ar and Segal did not include the Arab citizens of Israel, residents of the Kibbutzim and settlers in the occupied territories. Ultra-Orthodox Jews were also under-represented (supra note 3, at 62).

⁵⁰ Shamir, supra note 8, at 782, 795-800; Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories 13 (2002)Google Scholar; Gavison, Kremnitzer, & Dotan, supra note 2, at 102 (Gavison), 199, 221, 235, 251 (Kremnitzer); Kedar, supra note 2, at 740. The former Israeli Supreme Court President, Aharon Barak, claims that the confidence of the public in the Israeli judiciary is based on on what I title the mythical image of the Court see Barak, Aharon, The Judge in a Democracy 49–51 [in Hebrew] (2004)Google Scholar. See also Barak, Aharon, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 Harv. L. Rev. 16, 59–60 (2002)Google Scholar. In CrFH 5567/00 Deri v. The State of Israel [2000] IsrSC 54(3) 601, 604Google Scholar Barak wrote: “Public confidence in the Court is an important matter. This confidence means, among other things, that the public knows that the judicial decision is made fairly, objectively, neutrally, with equal treatment to litigants and impartially.” See also Tzaban v. The Minister of Religious Affairs, supra note 14, at 150.

⁵¹ As an appellate court the Supreme Court functions both as a criminal and civil appellate court, hearing appeals directly from district courts and as a third instance of cassation in criminal and civil cases that started in magistrate courts and were appealed to district courts. See Article 15 of Basic Law: The Judiciary, 1984, S.H. 78; see also Dotan, Yoav, Judicial Rhetoric, Government Lawyers, and Human Rights: The Case of the Israeli High Court of Justice during the Intifada, 33 L. & Soc'y Rev. 319, 322–23 (1999)Google Scholar.

⁵² Since the year 2000 the situation is somewhat different due to the inception of administrative courts as separate chambers of the district courts.

⁵³ Navot, Suzie, The Constitutional Law of Israel 139–43 (2007)Google Scholar; Dotan, supra note 51, at 322-23; Bogoch & Holzman-Gazit, supra note 6, at 57-58, 61 n.22.

⁵⁴ Peleg, Israel, Objectivity in Television News 8 (Unpublished Ph.D. dissertation, The Hebrew University of Jerusalem, 1981)Google Scholar (on file with The Hebrew University Library). Sociologist Oz Almog claims that “at the time when there was only one television channel in Israel, 90% of the viewers did not miss the daily news show.” Almog, Oz, Farewell to ‘Srulik’—Changing Values Among the Israeli Elite 284 (2004)Google Scholar. Based on a survey in 1980, Edi Sofer writes that 97% of the Jewish population who watched television (93% of the population according to the same survey) and were 14 years old or older regularly watched Mabat. The news edition shown on Friday nights received, by the same survey, 79% of the Jewish audience. Sofer, supra note 36, at 22. Though these figures seem exaggerated, one must remember that Israelis are heavy consumers of news. See Peri, Yoram, Telepopulism 18–19 (2004)Google Scholar. It should be noted that within ten years after the inception of Channel One, 80% of the households had television sets. Id. at 22.

⁵⁵ Rosenblum is quoted by Almog, supra note 54, at 291. See also Doron, Gideon, The Politics of Mass Communication in Israel, 555 Annals of the American Academy of Political and Social Science 163, 170 (1998)CrossRefGoogle Scholar (“The main news bulletin, between 9:00 and 9:30, became a real tribal fire, attracting almost everyone who owned a television [sic.] set.”).

⁵⁶ Galili, Orit, Television's New Rules, Harretz, Sept. 30, 1994Google Scholar; Bar-Kima, Orly, An Item with David Levi was Censored and not During the Election Propaganda, Haaretz, May 15, 1996Google Scholar (conflicting surveys, all showing a decline in the ratings of Mabat).

⁵⁷ Postman, Neil, Amusing Ourselves to Death 6–7 (1986)Google Scholar.

⁵⁸ Slotnick & Segal, supra note 15, at 180.

⁵⁹ In-studio interviews concerning the Court or long commentaries by the reporter are regarded as filmed items and accordingly usually receive a catalogue number.

⁶⁰ Any headline that included the word: Supreme Court, HCJ etc. was counted. Any headline that included the name of a Supreme Court judge was counted unless the name did not allow a clear identification (a common name or a name of another known figure in those years). Headlines with names of well known judgments where compared to the date of the judgment was given and the date(s) of Court's hearing. In case of a match between these dates and the date in which the item was broadcast, the item was entercd into the non-filmed items results table.

⁶¹ The same method was followed not only in the coverage of cases but also whenever several items covered the same Court-related event (such as the appointment of a judge).

⁶² This finding is in line with Oz Almog's assertion that during the 1970s “most of the judgments did not receive media or public attention and stayed confined in the legal community.” Almog adds that “in fact, until the 1980s the judiciary acted usually far away from the eyes and ears of the Israeli public.” Almog, supra note 54, at 345, 403.

⁶³ HCJ 42/71 Lansky v. The Minister of Interior [1972] IsrSC 26(2) 337Google Scholar. Mabat, item no. 55074-72 (IBA, March 25, 1972); Mabat, item no. 59654-72 (IBA, Sept. 11, 1972).

⁶⁴ HCJ 128/74 Gonen v. Commission of Inquiry [1974] IsrSC 28(2) 80Google Scholar; Mabat, item no. 5201-74 (IBA, April 14, 1974). HCJ 469/74 Gonen v. Commission of Inquiry [1974] IsrSC 29(1) 635Google Scholar; Mabat, item no. 16490-74 (IBA, December 30, 1974).

⁶⁵ CA 113/79 Rechtman v. The State of Israel [1979] IsrSC 33(3) 261Google Scholar. Mabat, item no. 1366-79 (IBA, February 15, 1979); Mabat, item no. 2879-79 (IBA, April 26, 1979); Mabat, item no. 4281-79 (IBA, June 10, 1979), Mabat, item no. 4315-79 (IBA, June 13, 1979).

⁶⁶ For similar tendency in the U.S. see Grey, supra note 18, at 117-20. See also Peleg, supra note 28, at 32 (describes five characteristics defining the “news worthiness” of legal items. One of these characteristics is “criminal trails in which the defendants are political figures or other high ranked officials.”)

⁶⁷ HCJ 390/79 Dawikat v. The Government of Israel [1979] IsrSC 34(1) 1Google Scholar [hereinafter Elon Moreh]; an English translation found in 1 Military Government in the Territories Administered by Israel 1967-1980: The Legal Aspects 404 (Shamgar, Meir ed., 1982)Google Scholar.

⁶⁸ Id. at 16-20 (Deputy President Landau presiding).

⁶⁹ Hofnung, Menachem, Authority, Influence and Separation of Powers—Judicial Review in Israel in Comparative Perspective, 28 Mishpatim 211, 230 (1997)Google Scholar [in Hebrew]; Moshe Gorali, a journalist and the former spokesman for judiciary, wrote that until the Elon Moreh case “Politics did not consider the law.” Gorali, Moshe, 1979: Moshe Landau, Maariv (Magazine: The Israelis), May 11, 2005, at 37Google Scholar.

⁷⁰ Israeli sociologist, Oz Almog marks the Elon Morea affair as the first example for interventions of the HCJ in government's decisions which received media coverage. Almog, supra note 54, at 515. See also Barzilai, Yuchtman-Ya'ar, & Segal, supra note 3, at 81. Cf. to Canada: Sauvageau, Schneiderman, & Taras, supra note 20, at 65 (“Most of the cases that received a great deal of attention had another element. They had attracted the attention of politicians and had become part of the political landscape.”) id. at 217, 227 (“[C]ases that involve political controversy receive by far the most coverage.”).

⁷¹ Shamir, supra note 8, at 795.

⁷² From October 6 to November 29 1987, Mabat was not broadcast due to an employee strike.

⁷³ See Mautner, supra note 2, at 9, 193-94 (“adoption by the Court of a sweeping policy of judicial activism.”); Mautner, Menachem, Appointment of Judges to the Supreme Court in a Multicultural Society, 19 Mehkarei Mishpat 423, 424–25 (2003)Google Scholar [in Hebrew]; Mautner, Menachem, The 1980s—Years of Anxiety, 26 Iyunei Mishpat 645, 645, 648, 651–54, 670–73 (2002)Google Scholar [in Hebrew] [hereinafter Mautner, Anxiety]; Barzilai, Yuchtman-Ya'ar, & Segal, supra note 3, at 23; Gordon, Evelyn, Center Court, 13 Azure 182, 199 (2002)Google Scholar; Landau, Moshe, On Justiciability and Reasonableness in Administrative Law, 14 Iyunei Mishpat 5, 5 (1989)Google Scholar [in Hebrew]; Segal, Zeev, The Supreme Court (Sitting as High Court of Justice) Within the Framework of Israeli Society - Afer 50 Years, 5 Mishpat U'mimshal 235, 244–47 (2000)Google Scholar [in Hebrew].

⁷⁴ Gavison, Kremnitzer, & Dotan, supra note 2, at 9 (Dotan); Dotan, Yoav & Hofnung, Mencham, Interest Groups in the Israeli High Court of Justice: Measuring Success in Litigation and in Out-of-Court Settlements, 23 L. & Pol'y 1, 9 (2001)Google Scholar; Kretzmer, David, Forty Years of Public Law, 24 Isr. L. Rev. 341, 342–43 (1990)Google Scholar; Shetreet, Shimon, Developments in Constitutional Law: Selected Topics, 24 Isr. L. Rev. 368, 407 (1990)Google Scholar.

⁷⁵ Central Bureau of Statistics, Judicial Statistics (volumes from 1970 to 1989). The Central Bureau of Statistics (CBS) included under the category “HCJ” “petitions,” “various applications” and “other matters.” Only in 1985 did the CBS start to provide the statistics regarding the inner division between the three sub-categories. In a recent article, Ron Harris argues that the increase in the number of petitions decided by the HCJ began during the second half of the 1970s. Harris is correct that the rise in the number of matters decided (and submitted) begun during the late 1970s. Another ascent occurred during the second half of the 1980s. See Harris, Ron, The Spread of Law into the Public Sphere in the Third Decade, in Israel in the Third Decade 251, 253 (Tzameret, Zvi & Yablonḳa, Ḥanah eds., 2008)Google Scholar.

⁷⁶ For a similar conclusion see Bogoch & Holzman-Gazit, supra note 6, at 65 (“Obviously the newspapers are devoting more coverage to petitions submitted to the HCJ over and above actual increase in the number of petitions filed with the Court.”).

⁷⁷ Dotan, Yoav & Hofnung, Menachem, Legal Defeats—Political Wins: Why Do Elected Representatives Go to Court? 38 Comp. Pol. Stud. 75, 77, 81, 84, 87, 97–102 (2005)Google Scholar. Dotan and Hofnung chose the year 1986 as the starting point for their study since “it was the year during which the court made the most significant reform in its access doctrines.” Id. at 87 n. 19. They also examined the years 1977, 1980, and 1983.

⁷⁸ Dotan & Hofnung, supra note 74, at 10; Barzilai, Yuchtman-Ya'ar, & Segal, supra note 3, at 39; Bogoch & Holzman-Gazit, supra note 6, at 67 (“a steady increase in the reports of petitions by NGOs in both newspapers”).

⁷⁹ Gavison, Kremnitzer, & Dotan, supra note 2, at 11-15 (Dotan), 108 (Gavison); Mautner, supra note 2, at 102-05; Dotan & Hofnung, supra note 77, at 85-86; Hofnung, Menachem, Israeli Constitutional Politics: The Fragility of Impartiality, 5 Isr. Affairs 34, 38–41, 43 (1999)Google Scholar; Landau, supra note 73, at 5-6; Mautner, , Anxiety, supra note 73, at 654, 671Google Scholar.

⁸⁰ Mautner, supra note 2. For a short presentation of Mautner's theory in English see Mautner, Menachem, Law and Culture in Israel: The 1950s and the 1980s, in The History of Law in a Multicultural Society Israel 1917-1967, at 175 (Harris, Ron, Alexander, (Sandy) Keder, , Lahav, Pnina, & Likhovski, Assaf eds., 2002)Google Scholar. See also Segev, Joshua, The Changing Role of the Israeli Supreme Court and the Question of Legitimacy, 20 Temp. Int'l & Comp. L.J. 1, 5–10 (2006)Google Scholar (describing Mautner's theory and its canonical status).

⁸¹ Mautner, supra note 2, at 33-34.

⁸² Almog, supra note 54, at 512.

⁸³ Mautner, supra note 2, at 36; Segev, supra note 80, at 7. See also Dotan, supra note 1, at 144, 152-53. Interviews of judges (some of them former Supreme Court judges) support this claim. The judges admitted that due to media's influence their judicial opinions are now written in a more media-oriented style. See Peleg, supra note 28, at 117-18, 120, 144, 155.

⁸⁴ Bogoch's and Holzman-Gazit's study also suggest that the “growing involvement of the HCJ in everyday life as a consequence of changes in the doctrines of standing and justiciablity” is among the factors responsible for the increase in the media coverage of the Court. Since their study is more media-oriented they also emphasize “the crucial and self-serving benefit to the media itself which coverage of the HCJ provides.” Bogoch & Holzman-Gazit, supra note 6, at 80.

⁸⁵ HCJ 428/86 Barzilai v. The Government of Israel [1989] IsrSC 40(3) 505Google Scholar. An English translation of the judgment may be found in 6 Selected Judgments of the Supreme Court of Israel 1 (1986)Google Scholar. There was an earlier petition submitted by a GSS agent, who helped uncover the affair, against his dismissal from the GSS. This petition was covered in two items (the Malka petition). The decision in this petition was never published. Gutman, Yechiel, A Storm in the GSS 54–55, 78–79 (1995)Google Scholar [in Hebrew].

⁸⁶ After gaining control of the bus, GSS agents were seen capturing two terrorists alive. Later it was stated that these terrorists had been killed. The GSS conducted a series of cover-up actions. Some of the agents were suspected of killing the terrorists after they were captured, others were suspected of distorting a governmental investigation that followed. Many in the GSS and in the public thought the Prime Minister had authorized the killings and the cover-up. For a discussion of the affair in English see Gross, Emanuel, Democracy in the War against Terrorism–The Israeli Experience, 35 Loy. L.A. L. Rev. 1161, 1173–74 (2002)Google Scholar; Lahav, Pnina, A Barrel without Hoops: The Affect of Counterterrorism on Israel's Legal Culture, 10 Cardozo L. Rev. 529 (1988)Google Scholar.

⁸⁷ See Gutman, supra note 85, at 42-91.

⁸⁸ Dotan, Yoav, The Spillover Effect of Bills of Rights: A Comparative Assessment of the Impact of Bills of Rights in Canada and Israel, 53 Am. J. Comp. L. 293, 333 (2005)CrossRefGoogle Scholar.

⁸⁹ The news edition opened with a non-filmed report on two car accidents that occurred that afternoon. Mabat, item no. 7217-86 (IBA, August 6, 1986).

⁹⁰ Almog, supra note 54, at 104, 106.

⁹¹ Id. at 293. See also Bogoch & Holzman-Gazit, supra note 6, at 6 (“Since the 1980s, in light of the severe criticism of the failing of the press prior to the Yom Kippur War, media professionals have approached their watchdog role more seriously.”).

⁹² Barzilai, supra note 48, at 731-32.

⁹³ Dotan & Hofnung, supra note 77, at 77, 81, 86 (“during the 1980s and the 1990s, … [T]he HCJ was also willing to review actions of state security organs, which were previously held partly or wholly immune from judicial supervision.”); Shetreet, supra note 74, at 416 (changes in the court's adjudication regarding security issues could not have occurred without changes in public views following the Yom Kippur war.)

⁹⁴ CA 124/87 Nafsu v. Military Prosecutor Gen. [1987] IsrSC 41(2) 631Google Scholar.

⁹⁵ Including decisions to grant retrials.

⁹⁶ However, television also dedicated coverage to topics unrelated to Court's adjudication such as judicial appointments (see the category “outside the court”). Moreover, there are items covering cases which could not be attributed to any of these three categories. Hence, if one examines only the items covering the Court's adjudication (without the “outside the court” category) and only the items which can be ascribed to one of these categories, the percentage dedicated to criminal cases would have been higher.

⁹⁷ Mabat, item no. 14116-89 (IBA, October 22, 1989) (Item covering CA214/89 Avneri v. Shapira [1989] IsrSC 43(3) 640Google Scholar). For coverage of civil cases in U.S. see Slotnick & Segal, supra note 15, at 200 (noting the lack of television coverage of Supreme Court cases dealing with “economic issues”); Haltom, supra note 19, at 238-42 (stating the reasons for lack of coverage of civil cases).

⁹⁸ Bogoch's and Holzman-Gazit's study on the coverage of the HCJ by newspapers also supports the conclusion that “the press is mostly interested in its role as the HCJ.” In the four years they examined (1972, 1981, 1994, 2000), 73.18% of newspapers' articles dealt with the HCJ. Only 10.97% dealt with civil appeals and 15.85% with criminal appeals. Bogoch & Holzman-Gazit, supra note 6, at 63. In this data the authors refer only “to the number of articles that deal with the submission of petitions and judicial proceedings and decisions” without dealing with the category I titled “outside the court.” Bogoch & Holzman-Gazit, supra note 6, at 65 n.28.

⁹⁹ This conclusion is also supported by the study of Bogoch & Holzman-Gazit, supra note 6, at 72 see also at 79-81.

¹⁰⁰ Hence, in view of this data there is no wonder that “[i]t is mainly for its actions as the HCJ that the Supreme Court of Israel has developed a reputation of being a powerful, influential, and activist court.” Bogoch & Holzman-Gazit, supra note 6, at 58.

¹⁰¹ Cf. Bogoch & Holzman-Gazit, supra note 6, at 58; Gavison, Ruth, The Attorney General: A Critical Look at Some New Trends, 5 Plilim 27, 72 (1996)Google Scholar [in Hebrew]. Of course, one may claim that a large part of these cases (or even all) are human rights cases (for example the cases dealing with the occupied territories—deportation, expropriation of land, etc.). However, these cases were usually covered in those years in the context of the political debate (in relation to the occupied territories the coverage was usually from the perspective of the political debate on the territories and the government's actions against security threats).

¹⁰² Murphy, Walter F., Elements of Judicial Strategy 13 (1964)Google Scholar (“The ‘cult of robe,’ the concept of the judge as a high priest of justice with special talents for elucidation of ‘the law.’ that sacred and mysterious text which is inscrutable even to the educated layman…”).

¹⁰³ Meyrowitz, Joshua, No Sense of Place the Impact of Electronic Media on Social Behavior 63–64 (1985)Google Scholar.

¹⁰⁴ Meyrowitz, supra note 103, at 64-66; Mautner, Menachem, Law and Culture in Israel at the Threshold of the Twenty First Century 219–23 (2008)Google Scholar [in Hebrew] (the decline in public confidence of the Court in recent years occurred due to the exposure of the Court's backstage).

¹⁰⁵ Kritzer, Herbert M., Martin Shapiro: Anticipating the New Institutionalism, in The Pioneers of Judicial Behavior 387, 397 (Maveety, Nancy ed., 2003)Google Scholar; Koopmans, Tim, Courts and Political Institutions: A Comparative View 2 (2003)CrossRefGoogle Scholar.

¹⁰⁶ See Balkin, Jack M. & Levinson, Sanford, Law and Humanities: An Uneasy Relationship, 18 Yale J.L. & Human. 155, 159 (2006)Google Scholar.

¹⁰⁷ Gavison, Kremnitzer, & Dotan, supra note 2, at 249 (Kremnitzer).

¹⁰⁸ Segev, supra note 80, at 3-5; Mautner, , Law, supra note 104, at 133-34, 204–05Google Scholar.

¹⁰⁹ Cf. Haltom, supra note 19, at 58-59.

¹¹⁰ Mautner, supra note 2, at 45, 52-64.

¹¹¹ If one characterizes politics as deciding upon a set of values then indeed many of these decisions are political. See “Judges are Political by Definition” in Hodder-Williams, Richard, Judges and Politics in the Contemporary Age 36–38 (1996)Google Scholar.

¹¹² There are of course criminal and civil cases that are presented as political in the sense of party politics. A good example for that is the coverage of Aryeh Deri's criminal appeal in 2000. Deri, a leading politician of the Sephardi ultra-Orthodox Shas party, was convicted of corruption charges. Media coverage awarded visibility to claims that Deri's persecution was based on his political, religious, and ethnic affiliation. Mabat, items no. 11047-11053-00 (IBA, July 12, 2000).

¹¹³ The media in general and television in particular, tend “to concentrate on the surface of events rather than underlying conditions.” Postman, Neil & Powers, Steve, How To Watch TV News 112–13 (1992)Google Scholar. On the tendency of television to simplify in general see Postman, supra note 57, at 147-48; in the context of covering courts see Davis, supra note 15, at 90 and Haltom, supra note 19, at 112.

¹¹⁴ Shapiro, Martin, Courts: A Comparative and Political Analysis 1 (1981)CrossRefGoogle Scholar (from conflict resolution in triads “overwhelming appeal to common sense stems the basic political legitimacy of courts everywhere”).

¹¹⁵ Haltom, supra note 19, at 31-32, 58-59.

¹¹⁶ Cf. Haltom, supra note 19, at 280; Casey, supra note 2, at 387-88, 408 (“invisibility and distance from the mass public sustain myth and thus legitimacy.”)

¹¹⁷ Sauvageau, Schneiderman, & Taras, supra note 20, at 208-09. See also Haltom, supra note 19, at 71, 103, 115, 145, 288-89 (the U.S. Supreme Court strategy of isolation and media invisibility is aimed to preserve its authority; “noncoverage serves the majesty of the Court”).

¹¹⁸ See supra note 73.

¹¹⁹ Scheb, John M. II & Lyons, William, The Myth of Legality and Public Evaluation of the Supreme Court, 81 Soc. Science Q. 928, 938 (2000)Google Scholar (widely publicized decisions that weaken the perception that the court is acting as a legal rather than a political entity are likely to undermine public confidence in the Court.)

¹²⁰ Bogoch & Holzman-Gazit, supra note 6, at 63.

¹²¹ Cf. Casey, supra note 2, at 387 (The U.S. Supreme Court's relative invisibility as responsible for the endurance of its legitimacy; “visibility would jeopardize the Court's mystique and cause a decline in its legitimacy.”); Slotnick & Segal, supra note 15, at 329; Friedman, supra note 17, at 2617-20 (summarizing several studies regarding the U.S. Supreme Court showing that “diffuse Support for courts is highest the less people know about what courts are doing.”): Sauvageau, Schneiderman, & Taras, supra note 20, at 208-09 (distance and invisibility allowing the Canadian Supreme Court to sustain its institutional legitimacy).

¹²² Bogoch's and Holzman-Gazit's data on newspapers coverage supports my claim that the major increase in coverage occurred only in the 1990s and not during the 1980s. Bogoch & Holzman-Gazit, supra note 6, 63-65. However, since their data is limited to four months in three years which are relevant for this Article (1972, 1981, 1994) it is impossible to conclude whether indeed the entrance of Channel Two changed the coverage in all of the media or whether the increase in coverage in newspapers can be attributed to other factors.

¹²³ It is interesting to note that the increase in coverage of the Israeli Supreme Court during the 1990s is in total contrast to what happened in the coverage of the U.S. Supreme Court at the same years. See Drechsel, Robert E., Not a Pretty Picture, 82 Judicature 185, 185 (1999)Google Scholar (book review).

¹²⁴ Mabat, item no. 5391-90 (IBA, April 18, 1990); Yoman, item no. 16254-93 (IBA, August 20, 1993).

¹²⁵ Another item which was partly dedicated to reflective coverage of the Court was Yoman, item no. 9308-90 (IBA, June 22, 1990). This item covered the manner in which the Israeli legal system dealt with the first Intifada. By and large, the parts in the item focusing on the HCJ do not stray from the mythical image. Though some criticism on the Court's lack of activism in petitions concerning the occupied territories is brought, the reporter describes the HCJ work as “protecting, in fact, the rule of law in examining the acts of the Government wherever it acts, both in Israel and the territories.” Interestingly, the criticism of the Court's over-activism amounts only to right wing MK Elyakim Haetzni's saying that “I have perhaps only one problem with HCJ's adjudication [concerning the occupied territories:] the long time [it takes].”

¹²⁶ Professor Zamir began his answer on the reason for the increasing involvement of the Court by “correcting the following perception: It is true that lately we see more involvement of the Court, but this phenomenon comes and goes.”

¹²⁷ The Court moved to its new building in November 1992. This change of setting had an important effect on the coverage of the Court. However, since during the time span examined in this Article the Court resided in its new dwelling for only several months, this change is not examined.

¹²⁹ For example, after the Court upheld the decision by the Central Elections Committee to disqualify the racist party Kach from participating in general elections its leader, Rabbi Meir Kahane said: “The Supreme Court in Israel dared to assert that what we say and decide is racism. On such a court it was said ‘in the place of justice, that wickedness was there’ [quoting from Ecclesiastes 3:16].” Mabat, item no. 11797-88 (IBA, October 18, 1988). Another prominent example is the coverage of the religious establishment's reactions to the HCJ's judgments striking down practices that banned women's participation in the selection of municipal Chief Rabbis and in municipal religious councils. Mabat, item no. 5994-88 (IBA, May 19, 1988); Mabat, item no. 6336-88 (IBA, May 30, 1988).

¹²⁹ Cf. Kahn, Paul W., The Reign of Law 3, 5, 34 (1997)Google Scholar (discusses the concept of the rule of law in the American political imagination); Taylor, supra note 22, at 17 (“once we are well installed in the modern social imaginary, it seem the only possible one, the only one that makes sense.”)

¹³⁰ For an exception see Mabat, item no. 9630-85 (IBA, October 31. 1985) (Professor Gavison criticizes the Court's decision in HCJ 742/84 Kahane v. The Speaker of the Knesset [1985] IsrSC 39(4) 85Google Scholar. The Court decided to enjoin the Speaker of the Knesset from preventing the tabling of a racist draft bill in the plenum. Gavison claimed that the Court's decision may hinder the educational struggle against racism. This criticism hardly denied any of the mythical image characteristic and yet it is hard to find even this kind of criticism in television coverage until the 1990s).

¹³¹ This Article's conclusion regarding the years 1968-1992 fits quite well with Bogoch's and Holzman-Gazit's study on newspaper coverage. They conclude that “despite the expansion of media coverage of the HCJ over the years, both the elite and popular press maintained a highly supportive stance toward the Court.” Bogoch & Holzman-Gazit, supra note 6, at 79, see also at 55.

¹³² For a description of the scope of this category see supra note 9.

¹³³ The “outside the court” category was the most covered category during the 1980s the second most covered category during the 1970s and the third from 1990 to 1992.

¹³⁴ See supra text accompanying note 125. Cf. to Canada: Sauvageau, schneiderman, & Taras, supra note 20, at 228 (“The irony is that journalists who cover the court almost never write about it. They cover the controversial cases and decisions without examining the larger institution.”).

¹³⁵ A reporter may, of course, comment on a particular judge or generally on the Court as an institution in items covering Court's decisions. However, the “outside the court” category is characterized by this sort of coverage. Hence, examining the items in this category is the best way tolearn about media's direct message on the Court.

¹³⁶ Mason, Alpheus Thomas, Myth and Reality in Supreme Court Decisions, 48 Va. L. Rev. 1385, 1388-90, 1399 (1962)CrossRefGoogle Scholar (“once the mystery that surrounds judicial doing is penetrated. once the public recognizes the personal nature of judicial power, it would become difficult for the judiciary to function at all.”); Lerner, Max, Constitution and Court as Symbols, 46 Yale L. J. 1290, 1309–10 (1937)CrossRefGoogle Scholar; Grey, supra note 18, at 13; Davis, , News, supra note 41, at 46, 48, 54Google Scholar; Haltom, supra note 19, at 104-05.

¹³⁷ Gibson, Caldeira & Baird, supra note 15, at 354, 356.

¹³⁸ As US. Supreme Court Justice Breyer wrote: “The more the media writes about an individual judge, the greater the probability the judge will become a known ‘personality,’ lessening (in my opinion), the power of the law.” Breyer, Stephen, Communication Media and its Relationship with Supreme Courts, 42 St. Louis U. L. J. 1083, 1086 (1998)Google Scholar; Kahn, supra note 129, at 105 (“The rule of law cannot appear as the empowerment of the judge as a particular subject. It cannot appear to be the rule of men, even if those men happen to be wearing judicial robes.”), 116 (“The black robes are a symbol of the division the rule of law strives maintain between the person of the judge and the judicial function.”)

¹³⁹ Grey, supra note 18, at 14 (“The judicial robe itself is a symbol that provides an image of prestige, protection, and uniformity; it gives a feeling of formal authority and control. Nine black-robed justices create an image of equal justice under law.”); Mautner, Menachem, The Law Hidden from the Eye, 16 Alpayim 45, 55–56 (1998)Google Scholar [in Hebrew]; Rosen-Zvi, Issachar, Are Judges Human? The Construction of the Image of the Professional Judge in Light of Judicial Disqualification Rules, 8 Mishpat U'Mimshal 49, 54–55 (2005)Google Scholar [in Hebrew].

¹⁴⁰ Nagel, Thomas, Concealment and Exposure, 27 Phil. & Pub. Affairs 3, 5, 18 (1998)Google Scholar; Meyrowitz, supra note 103, at 66-67, 271.

¹⁴¹ The Judicial Selection Committee is composed of nine members: the president of the Supreme Court and two other judges of that Court, two ministers (one of whom is the Minister of Justice), two Members of the Knesset and two representatives of the Israel Bar Association. The Minister of Justice is the chairperson of the Committee. Basic Law: The Judiciary, 5744-1984, § 4, 38 L.S.I. 101 (1983-1984)Google Scholar (Isr.) [in Hebrew].

¹⁴² Cf. Kahn, supra note 129, at 116 (in the confirmation process, “The nominee explicitly engages in a public process of disavowing his or her own subjectivity.”)

¹⁴³ Ten years later, Cheshin was appointed to the Supreme Court. Levitsky, Nomi, The Supremes: Inside the Supreme Court 197–98 (2006)Google Scholar [in Hebrew].

¹⁴⁴ The item covering the death of Judge Zilberg was perhaps the most extreme in the level of praises. While photos of the late judge were shown the reporter praised him by telling, among other things, that Zilberg had

a mixture of artistic temperament and cold logical thinking … the “Zilbergism” will be remembered in the history of the Court as limitless knowledge in Judaism and general sciences…sharp thinking, wittiness, kind heartedness, protecting human rights, knowledge of the foreign laws…but above all, Jewish nationalism in its deepest sense.

Mabat, item no. 10567-75 (IBA, August 17, 1975). See also, e.g., Mabar, item no. 13219-76 (IBA, September 6, 1976) (the retirement of Supreme Court President Shimon Agranat); Mabat, item no. 3657-85 (IBA, April 24, 1985) (the death of former Court's President Yitzhak Kahan).

¹⁴⁵ See Mabat, item no. 13314-76 (IBA, September 8, 1976) (Zussman's inaugural ceremony to president of the Supreme Court); Mabat, item no. 7753-78 (IBA, September 23, 1978) (Barak's inaugural ceremony); Mabat, item no. 1792-80 (IBA, March 5, 1980) (Landau's inaugural ceremony to president of the Supreme Court); Yoman, item no. 2393-82 (IBA, April 30, 1982) (Kahan's inaugural ceremony to president of the Supreme Court); Mabat, item no. 7665-83 (IBA, November 27, 1983) (Shamgar's inaugural ceremony to president of the Supreme Court). See also Barzilai, supra note 5, at 41 (“The judicial elite acquired substantial power in view of the political polarization and since it was not identified with it.”)

¹⁴⁶ Mabat, item no. 1792-80 (IBA, March 5, 1980). The item covering Shamgar's inaugural ceremony to president begins with the reporter quoting from President Haim Herzog's speech: “the Supreme Court justice is the highest moral authority to whom all look for justice and law.” Mabat, item no. 7665-83 (IBA, November 27, 1983).

¹⁴⁷ In the item covering Judge Landau's inaugural ceremony as president this was especially salient. The item ended with President Yitzhak Navon stating:

may they continue to serve in the future, as they have served until now, as a model for justice and law not only in their written judgments but also in their life. You can educate a whole generation not only on the basis of preaching and asserting but on the basis of personal example that they give and I think that this model is loyal to the culture in general and to the Israeli heritage in particular.

Mabat, item no. 1792-80 (IBA, March 5, 1980).

¹⁴⁸ Mizrahi Jews or Sephardi Jews is a term commonly used to describe Jews whose country of origin is one of the Muslim or Arab countries, and their descendents. Ashkenazi Jews are Jews whose origin is from Europe or from Western societies.

¹⁴⁹ Rubinstein, Elyakim, Judges of the Land: The Origin and Character of the Israeli Supreme Court 62-66, 147–65 (1980)Google Scholar [in Hebrew]; Salzberger, Eli M., The Israeli Supreme Court at 50 Years: Between Hedgehog and Fox, 16 Mehkarei Mishpat 141, 146–52 (2000)Google Scholar [in Hebrew]. The issue of a chair for an Arab judge was raised during the late 1970s (id. 157-58), but not seriously considered until the 1990s.

¹⁵⁰ Levitsky, supra note 143, at 164-66; Rubinstein, supra note 149, at 159-60; Gavison, Kremnitzer & Dotan, supra note 2, at 248 (Kremnitzer); Salzberger, supra note 149, at 144-45.

¹⁵¹ One exception to this assertion is one (out of two) items which covered the retirement of Judge Haim Cohen. Yoman, item no. 1462-81 (IBA, March 13, 1981). In this item, the reporter asserted that:

Haim Cohen was perhaps more lenient in interpreting Jewish family law after he, a Cohen, married a divorcée [according to Jewish law, a member of the Cohen family cannot marry a divorced woman] thus infuriating religious parties. In state matters he does not hide his determined stand against settlements in the occupied temtories.

In a lengthy interview, the interviewer asked Judge Cohen on his image as “hostile” toward the religious population. Cohen, obviously, denied this image. Contrary to this item, broadcast on the Friday news edition, the item broadcast two days earlier covering Cohen's last day at the Supreme Court did not frame him in such a political manner, it only described his opinions as “liberal.” Mabat, item no. 1455-81 (IBA, March 11, 1981).

¹⁵² Al Miskin, , Mediations: Another Time, Another Deportation, 182 Middle East Rep. 41 (1993)CrossRefGoogle Scholar.

¹⁵² Yoman, item no. 2393-82 (IBA, April 30, 1982). Shamgar's political orientation did not disappear when he started practicing law. While he was a Major in the IDF Judge Advocate unit Shamgar demanded to receive a daily newspaper affiliated with the Herut party rather than the daily newspaper affiliated with the Labor party that was distributed to all officers. Levitsky, Nomi, Kvodo: Aharon Barak: Biyograpfyah [Your Honor: Aharon Barak: A Biography] 131 (2001)Google Scholar [in Hebrew].

¹⁵⁴ Slotnick & Segal, supra note 15, at 6; Miljan, Lydia & Cooper, Barry, Hidden Agendas: How Journalists Influence the News 163–64 (2003)Google Scholar (“Much of the media's power lies in what they choose to discuss and what to omit.”).

¹⁵⁵ Gavison, Kremnitzer, & Dotan, supra note 2, at 179, 199, 235, 248-49 (Krermnitzer). Cf. Dahl, Robert A., Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. Pub. L. 279, 280 (1957)Google Scholar (in the U.S., “much of the legitimacy of the Court's decisions rests upon the fiction that it is not a political institution but exclusively a legal one.”) Again, some may claim that presenting the selecting process as completely isolated from any political considerations reflected reality. My aim is not to refute or confirm this claim but only to present the image of the Court in those years.

¹⁵⁶ cf. Slotnick & Segal, supra note 15, at 167; See Davis, supra note 15, at 134-35.

¹⁵⁷ Cf. Gavison, Kremnitzer, & Dotan, supra note 2, at 179, 248-49 (Kremnitzer) (the appointment process as an important ingredient in the apolitical image of the Court.).

¹⁵⁸ Mabat, item no. 254-82 (IBA, January 4, 1982).

¹⁵⁹ Since 1997 the names of the candidates scheduled to be considered by the committee are published. Rubinstein, Amnon & Medina, Barak, The Constitutional Law of the State of Israel 133 (6th ed. 2005)Google Scholar [in Hebrew].

¹⁶⁰ On the composition of the committee see supra note 141.

¹⁶¹ Mabat, item no. 1812-83 (IBA, March 10, 1983).

¹⁶² Mabat, item no. 2035-83 (IBA, March 22, 1983).

¹⁶³ In the U.S. this tendency is also quite common in coverage of legal matters. See Haltom, supra note 19, at 16, 91 (“reporters tend to preserve and present far more of the political context of cases than they do the legal context.”); Slotnick & Segal, supra note 15, at 94, 110-12, 116-18, 151 (“a political focus enabled network newscasts to present the ruling in a manner … not unlike coverage of events in other controversial policy domains.”), Id. at 154, 234-35.

¹⁶⁴ Cf. Slotnick & Segal, supra note 15, at 77 (in the U.S. “Little attention is placed on the justices themselves, save for the relatively brief period of their coming on or going out of the Court… Rarely do stories focus on the justices per se, and when they do, it is most often a reflection of reporting on appointment politics and processes.”), 167, 232 (“Reporters, by and large, do not cover the Court's personalities and its process of decision.”); Davis, News, supra note 41, at 48 (Notes less emphasis on people-oriented aspects in Court stories and the Court's decisions as the focal point of stories); Gans, Herbert J., Deciding What's News 11 (1979)Google Scholar (“The Court is one of the few major federal agencies to be treated as a group, and usually individual justices are in news only when they are appointed to or retire from the bench.”)

¹⁶⁵ Mabat, item no. 23257-93 (IBA, November 24, 1993).

¹⁶⁶ Haltom, supra note 19, at 58-59. I differ with Haltom's definition (which is made in a similar context) of “legally routine cases” as cases “that elicit or are likely to elicit a great degree of agreement from disinterested legal experts.” There are cases that may cause harsh controversies among the public although there is a wide consensus in the legal community on the legal result and reasoning. Indeed, a legally undisputed ruling does not guarantee coverage that conforms to mythical standards.

¹⁶⁷ The calculation includes items broadcast during 1993 since the coverage of the Hamas Deportation case started on December 1992 and continued until February 1993.

¹⁶⁸ For a similar situation in Canada see Sauvageau, Schneiderman, & Taras, supra note 20, at 43-44 (Between September 2000 to September 2001, “[a]lmost a third (31.8 percent) of the articles and reports published or broadcast were on only four cases.”)

¹⁶⁹ Elon Moreh, supra note 67. For a short summary of the judgment see supra text accompanying note 68.

¹⁷⁰ Mabat, item no. 10243-78 (IBA, Nov. 23, 1978).

¹⁷¹ Mabat, item no. 8532-79 (IBA, Oct. 22, 1979).

¹⁷² Mabat, item no. 8712-79 (IBA, Nov. 1, 1979). See a similar position in Mabat, item no. 8744-79 (IBA, Oct. 31, 1979).

¹⁷³ See Mautner, supra note 73, at 424 (“Since the inception of the state and until the beginning of the 1980s, the Supreme Court acted according to a judicial philosophy based on a strict distinction between politics and law.”); Segev, supra note 80, at 3 (“the widely held perception among the legal community in Israel has been that the Israeli Supreme Court (‘Supreme Court’), beginning in the 1980s, has gone through a transformation in the nature of its judicial function.”). See also sources cited supra note 73.

¹⁷⁴ Dawikat v. The Government of Israel, supra note 67, at 4. The translation for this passage was taken from Barak, supra note 50, at 104.

¹⁷⁵ For newspaper coverage see Shamir, supra note 8, at 795-98.

¹⁷⁶ Elon Moreh, supra note 67, at 4. Cf. Davis, supra note 15, at 24 (U.S. Supreme Court's involvement in major disputes between other political institutions “potentially jeopardizes the Court's mantle of legitimacy.”).

¹⁷⁷ Dahl, supra note 155, at 292. See Shamir, supra note 8, at 796 (“The HCJ's legitimacy, then, was reinforced by the court's apparently antigovernment decisions.”), 799-800 (“The court legitimized policies by first establishing its own legitimacy as an institution which stood above and outside particular political interests.”).

¹⁷⁸ “The overwhelming majority of these petitions were removed, compromised, or settled in one way or another. Sixty-five petitions reached adjudication and were officially published.” Shamir, supra note 8, at 785.

¹⁷⁹ Elon Moreh, supra note 67.

¹⁸⁰ HCJ 320/80 Kawasme v. The Minister of Defense [1980] IsrSC 35(3) 113Google Scholar (legality of deportation of Palestinian leaders).

¹⁸¹ HCJ 351/80 Jerusalem District Electricity Co. Ltd. v. The Minister of Energy [1981] IsrSC 35(2) 687Google Scholar (legality of an acquisition of the Palestinian electricity company). Shamir's claim (supra note 8, at 786) that the Electricity Company case received less public attention in comparison to the El Asad case (HCJ 2/79 El Asad v. The Minister of Interior [1979] IsrSC 34(1) 505Google Scholar) is not supported by the data collected regarding television coverage. Shamir used only newspapers in his study.

¹⁸² El Asad v. The Minister of Interior, supra note 181 (legality of a decision not to grant a license to an Arabic newspaper).

¹⁸³ HCJ 802/79 Samara v. The Regional Commander of Judea and Samaria [1980] IsrSC 34(4) 1Google Scholar (legality of the decision not to permit the reunification of a Palestinian family).

¹⁸⁴ The conclusion regarding the non-filmed coverage lacks certainty since there are no details on these items' content except for their title in the lineup. However, on the day these two judgments were given and the following day there was no non-filmed report in the news edition identified as having any relation to the Supreme Court, and least of all to these petitions.

¹⁸⁵ Two related judgments were given in the Mt. Hebron Deportees affair. Only in the first (Kawasme v. The Minister of Defense, supra note 180) were some of the petitioners' arguments upheld. Hence, the six items covering the second petition (HCJ 698/80 Kawasme v. The Minister of Defense [1980] IsrSC 35(1) 617Google Scholar) were not counted as part of the twenty-eight items where petitions upheld by the Court were covered. However, one may reasonably presume that television found interest in covering the second petition partly since the first petition was partly upheld. On the relation between the two petitions see Shamir, supra note 8, at 792-94.

¹⁸⁶ Shamir, supra note 8, at 795. However, the claim that the HCJ actually denied most of the petitions submitted by Palestinians was covered several years later in an item broadcast in 1990 covering the manner in which the Israeli legal system dealt with the first Intifada. Yoman, item no. 9308-90 (IBA, June 22, 1990). It should be noted that Shamir's conclusion is not shaken by Dotan's findings that taking in account out-of-court settlements, Palestinians' success rate in the HCJ is high. Dotan, supra note 51, at 335. Whatever the “true” character of the Court's action is, the Court's impartial and objective image in media coverage of Palestinians' petitions was based on the exceptional cases in which the Court decided in favor of the Palestinians' petitioners.

¹⁸⁷ Barzilai v. The Government of Israel, supra note 85, given Aug. 6, 1986. For a short summary of the judgment see supra text accompanying notes 85-89.

¹⁸⁸ Beside Modai, all four were interviewed in Mabat, item no. 7219-86 (IBA, August 6, 1986). Modai was interviewed in a separate item in Mabat, item no. 7222-86 (IBA, August 6, 1986).

¹⁸⁹ One of the petitions in Barzilai v. The Government of Israel was submitted by law professors. Shapira was not one of the petitioning professors, but most of the legal academia objected to the pardon.

¹⁹⁰ Gutman, supra note 85, at 93.

¹⁹¹ Mabat, item no. 7218-86 (IBA, Aug. 6, 1986).

¹⁹² Mabat, item no. 7223-86 (IBA, Aug. 6, 1986). For Rubinstein's position in government discussions see Gutman, supra note 85, at 93, 98; Rachum, Ilan, The Israeli General Security Service Affair 120, 124-25, 133 (1990)Google Scholar [in Hebrew].

¹⁹³ See, e.g., Kremnitzer, Mordechai, The General Security Service Pardon: A Test for the High Court of Justice, 8 Iyunei Mishpat 157 (1988)Google Scholar [in Hebrew].

¹⁹⁴ Gavison, Kremnitzer, & Dotan, supra note 2, at 72-73 (Gavison) (criticizes the tendency to conceal criticism against the Court due to fear of undermining its institutional legitimacy). The question of destroying the mythical image of the Court in the pursuit for the truth is not a simple question as Gavison herself admits. Gavison, Ruth, The Constitutional Revolution: a Reality or a Self-Fulfilling Prophecy?, 28 Mishpatim 21, 23–26 (1997)Google Scholar [in Hebrew]. When the results of refuting the mythical image are much worse than clinging to that image, the decision to expose the “noble lie” protecting the legitimacy of a court is quite problematic. On the dilemmas of law professors who choose to participate in the popular discourse see Chemerinsky, Erwin, The Supreme Court, Public Opinion, and the Role of the Academic Commentator, 40 S. Tex. L. Rev. 943, 949 (1999)Google Scholar

If the Court had fragile institutional legitimacy, an interesting issue would arise as to the role of the media and commentators in preserving its credibility. Would there be any duty to make it seem that the emperor had clothes even when recognizing that there were none? How should the media and commentators balance their duty for honest reporting and opinions with a personal and professional duty to preserve the Court's legitimacy?

¹⁹⁵ Gutman, supra note 85, at 62-67, 96-101, 106-110.

¹⁹⁶ Mabat, item no. 7221-86 (IBA, August 6, 1986). See also Gutman, supra note 85, at 113 (“by and large, the public and the media received the judgment with a sense of relief”); Rachum, supra note 192, at 143-44.

¹⁹⁷ See, e.g., Mabat, item no. 11797-88 (IBA, October 18, 1988) covering EA 1/88 Neiman v. Chairman of the Cent. Elections Comm. [1988] IsrSC 42(4) 177Google Scholar; Mabat, item no. 17210-89 (IBA, December 24, 1989) covering HCJ 425/89 Tzofan v. Chief Military Attorney [1989] IsrSC 43(4) 718Google Scholar; Mabat, item no. 6220-90 (IBA, May 10, 1990) covering HCJ 935/89 Ganor v. Attorney General [1990] IsrSC 44(2) 485Google Scholar.

¹⁹⁸ Postman & Powers, supra note 113, at 104-05 (“Unlike words and sentences, a picture does not present to us an idea or concept about the world…”).

¹⁹⁹ Postman, supra note 57, at 85, 103; Postman & Powers, supra note 113, at 81 (“television needs pictures.”), at 111 (“this is such a time-consuming process—using television as a printed page—that producers keep it to a minimum.”).

²⁰⁰ The Canadian media, that by most accounts, does a fairly good job covering the Supreme Court “often falls short” when it comes to covering the Court's reasoning. Sauvageau, Schneiderman, & Taras, supra note 20, at 205-06. Indeed, in the age of infotainment, reporting the reasons behind a decision is an almost impossible mission especially for television.

²⁰¹ Peri, supra note 54, at 40 (until the arrival of Channel Two, “Israel, in fact, still remained in the era of print journalism.”) Postman indeed recognizes that in places “where only one station is available,” television will function as an “entirely different medium” from that which Americans know. Postman, supra note 57, at 85.

²⁰² Doron, supra note 55, at 170.

²⁰³ The GSS affair almost brought down the national unity government of the Labor and Likud over the insinuations that Itzhak Shamir, the Prime Minister at the time of the affair and the Foreign Minister and Deputy Prime Minister at the time of the pardons, gave the order to kill the terrorists after they had been captured. According to the coalition agreement Shamir was expected to replace Shimon Peres as Prime Minister on October 1986, four months after the pardons. Many in the Labor party hoped to use the GSS affair in order to prevent the rotation between Peres and Shamir. It should be stressed that aside from the judgment phase Channel One's (which was the first to uncover the reemergence of the affair in 1986) coverage of the affair stressed the political angle. Gutman, supra note 85, at 15-16, 57, 65-67, 98-99. On the political and legal “language games” see Balkin, Jack M. & Levinson, Sanford, Constitutional Grammar, 72 Tex. L. Rev. 1771, 1783-84 (1994)Google Scholar.

²⁰⁴ Gavison, Kremnitzer & Dotan, supra note 2, at 179 (Kremnitzer).

²⁰⁵ Mautner, supra note 139, at 62.

²⁰⁶ There was no one “super case” that one can point to as the focus of coverage regarding the Court's intervention in the political game during those years.

²⁰⁷ Since the Bergman (1969) ruling and until 1995, courts held the power to review and annul only laws that violated entrenched provisions in Basic Laws. See HCJ 98/69 Bergman v. The Minister of Finance [1969] IsrSC 23(1) 693Google Scholar. See also Burt, Robert A., Inventing Judicial Review: Israel and America, 10 Cardozo L. Rev. 2013, 2043–47 (1989)Google Scholar.

²⁰⁸ Dotan & Hofnung, supra note 77, at 87-88; Gavison, Kremnitzer & Dotan, supra note 2, at 9, 15, 38-42 (Dotan). For a list of the petitions against the Knesset see Maoz, Asher, The Boundaries of Justiciability: Parliament, Government, and Courts, 8 Plilim 389, 435–44 (1999)Google Scholar [in Hebrew].

²⁰⁹ Barzilai, Yuchtman-Ya'ar & Segal, supra note 3, at 37; Hofnung, supra note 79, at 38; Segal, supra note 73, at 261.

²¹⁰ Dotan writes that following these judgments the public received “the impression” that the legislatures are deciding “all the time under the inspecting eyes of a ‘supreme judge (which is the Supreme Court).” Gavison, Kremnitzer & Dotan, supra note 2, at 41 (Dotan).

²¹¹ See, e.g., Mabat, item no. 5760-90 (IBA, May 1, 1990) and Mabat, item no. 6134-90 (IBA, May 8, 1990) covering HCJ 1601/90 Shalit v. Peres [1990] IsrSC 44(3) 353Google Scholar (duty to publish coalition agreements) (in 5760-90 the reporter said that “The HCJ again today entered into the political arena which without a constitution is totally unregulated.”); Mabat, item no. 26361-91 (IBA, December 22, 1991) covering HCJ 5711/91 Poraz v. Speaker of Knesset [1991] IsrSC 46(1) 299Google Scholar (obliging the tabling of a draft amendment to Basic Law: The State Economy in the plenum.)

²¹² See supra note 211.

²¹³ Mabat, item no. 26361-91 (IBA, December 22, 1991).

²¹⁴ Mabat, item no. 3799-90 (IBA, March 14, 1990) covering HCJ 1179/90 Ratz Party v. The Deputy Speaker of Knesset [1990] IsrSC 34(2) 31Google Scholar. This sentence was repeated twice in the item: First in the anchor's foreword to the item and then in a similar phrasing in the report, when the reporter quoted from President Shamgar's judgment.

²¹⁵ However, in 1985 Knesset speaker Shlomo Hillel expressed “deep sorrow” on the Court's decision enjoining him from preventing the tabling of a racist draft bill in the plenum. Mabat, item no. 9630-85 (IBA, October 31, 1985) covering Kahane v. The Speaker of the Knesset, supra note 130.

²¹⁶ Mabat, item no. 6134-90 (IBA, May 8, 1990).

²¹⁷ Mabat, item no. 5760-90 (IBA. May 1, 1990). See also Mabat, item no. 8414-88 (IBA, July 26, 1988) covering HCJ 482/88 Reiser v. The Speaker of the Knesset [1988] IsrSC 42(3) 142Google Scholar (Reiser's reaction after his petition was denied).

²¹⁸ Mabat, item no. 6134-90 (IBA, May 8, 1990) (Labor Party's reaction); Mabat, item no. 26361-91 (IBA, December 22, 1991) (Speaker of Knesset reaction).

²¹⁹ See especially Mabat, item no. 5760-90 (IBA, May 1, 1990). Cf. Edelman, Murray, The Symbolic Uses of Politics 108 (1964, paperback edition 1976)Google Scholar (discusses “the most potent myth in American political life”—the belief the United State Supreme Court is a nonpolitical body.); Paletz & Entman, supra note 16, at 102-03 (“Yet the myth persists … judges improperly are not perceived as politicians.”)

²²⁰ See, e.g., Mabat, item no. 5760-90 (IBA, May 1, 1990) (the reporter stressed that “the judges decided that … in eight days everyone will come to the Court: Shamir and Peres [The Likud and Labor leaders that at that time struggled over who will form the coalition and serve as Prime Minister], Sharir and Modai, Porush and Biton [other prominent politicians] and others…the leaders of the state that were summoned to the Court required maybe to account for any illegal agreement they signed in their quest to form a government.”).

²²¹ Gavison, Kremnitzer & Dotan, supra note 2, at 47 (Dotan). See also id. at 104 n. 36, 106, 150-51, 274 (Gavison), 180 (Kremnitzer).

²²² Barzilai, Yuchtman-Ya'ar, & Segal, supra note 3, at 38-39; Gavison, Kremnitzer & Dotan, supra note 2, at 177, 235, 251-52 (Kremnitzer); Barzilai, supra note 5, at 41 (the intervention of the Court in the political arena was a source of institutional power since the Court was not identified with the political arena but had a neutral, apolitical image).

²²³ HCJ 5973/92 Ass'n for Civil Rights in Isr. v. The Minister of Defense [1993] IsrSC 47 (1) 267Google Scholar. For an English summary see 23 Isr. Y.B. Hum. Rts. 353 (1993)Google Scholar. See also Gross, Emanuel, Human Rights in Administrative Proceedings: A Quest for Appropriate Evidentiary Standards, 31 Cal. W. Int'l L.J. 215, 227–29 (2001)Google Scholar.

²²⁴ Benvenisti, Eyal, Judicial Review of Deportation Orders, 1 Mishpat U'mimshal 441, 445 (1993)Google Scholar [in Hebrew].

²²⁵ Yoman, item no. 1754-93 (IBA, January 29, 1993).

²²⁶ The report focused on the graduation ceremony of The Hebrew University Law School that took place a day before the judgment. One of the graduates was the son of the Supreme Court President, Meir Shamgar. The two Professors were the dean during that period, Mordechai Kremnitzer and David Kretzmer. Though Kremnitzer spoke of his misgivings, he claimed that the situation is preferable in comparison to a situation in which the government would act with no supervision. Kretzmer spoke of the concern over “politicization of the judiciary.”

²²⁷ See Segev, supra note 80, at 3-10 (summarizes the “general attitudes of scholars, judges and lawyers about the changing role of the Supreme Court”).

²²⁸ Miki Rosental in Yoman, item no. 1754-93 (IBA, Jan. 29, 1993).

²²⁹ Mabat, item no. 21107-92 (IBA, Dec. 17, 1992).

²³⁰ Mabat, item no. 21307-92 (IBA, Dec. 22, 1992).

²³¹ Mabat, item no. 21307-92 (IBA, Dec. 22, 1992).

²³² In legal academic articles from that period scholars admitted that the decisive factor in the Hamas Deportation judgment was political and not legal. Benvenisti, supra note 224, at 444, 470 (“public legitimacy for judicial intervention is not unlimited. The Court cannot always go against the views of the majority of the Israeli public. It cannot remain indifferent when the security forces, headed by the IDF's chief of staff, describe the enormous harm to security that would occur if the Court grants those suspected in terror and murder the rights the law prescribes. One possible result of this tension is problematic judgments both from perspective of facts analysis and the from perspective of implementing the rules of law.”); Dotan, Yoav, Ripeness and Politics in the High Court of Justice, 20 Iyunei Mishpat 93, 127–28 & n.74 (1996)Google Scholar [in Hebrew] (suggests that after the Hamas Deportation affair the Court became less active as a result of the failure of its activism which was exposed in the affair. The Court, according to Dotan, could not resist the public opinion in favor of the deportation and thus gave a judgment with no legal foundation.). See also Gavison, Kremnitzer, & Dotan, supra note 2, at 56, 66 (in 2000 Dotan writes that in fear of contradicting and upsetting public opinion, the Court had deviated from its legal standards in cases that concern highly controversial security issues such as the Hamas Deportation case).

²³³ HCJ 5973/92 Ass'n for Civil Rights in Isr. v. The Minister of Defense [Dec. 22, 1992] (unpublished). Mabat, item no. 21307-92 (IBA, Dec. 22, 1992) (Attorney Imad Dakwar reacting to an interim decision of the Court denying petitioners' claims that Israel is still responsible after the deportation to the well-being of the deportees while they were situated near the Israeli border with Lebanon.).

²³⁴ Mabat, item no. 21307-92 (IBA, Dec. 22, 1992).

²³⁵ Dotan, The Intifada, supra note 51, at 348. See also Maoz, supra note 208, at 429-32 & n.244 (describing the criticism of the decision and noting that according to an opinion poll among the Jewish Israeli population, 91% of the public defined the decision to deport as justified); Hofnung, supra note 79, at 53 n.84 (the HCJ acted under public pressure against its previous case law); Barzilai, Gad, Yuchtman-Ya'ar, Ephraim & Segal, Ze'ev, The Deportation Case: The Rule and the Rule of Law, 4 Plilim 9, 10–11 (1994)Google Scholar [in Hebrew] (“the Court's decision was clearly consistent with public opinion at that time.”). The Court's president at that time, Meir Shamgar wanted the rare extended panel of seven judges to present a united front. Thus, he convinced the three judges who wanted to write a dissenting opinion to agree for a compromise formulation of the judgment that would be published as “the opinion of the Court.” See Levitsky, supra note 153, at 183-88. This kind of anonymous judgment that avoided publishing the name of the judge who wrote the opinion is “almost unknown” in the Israeli legal system. All of these measures were aimed apparently “not only to express the legal importance of the issue but also to strengthen the public image of the Court as a professional, a-political and quite united tribunal.” Barzilai, Yuchtman-Ya'ar, & Segal, supra, at 9-10.

²³⁶ Mabat, item no. 21308-92 (IBA, December 22, 1992). Faisal Husseini, a prominent Palestinian politician, also criticized the judgment saying it is political and contradicts international law. Mabat, item no. 21310-92 (IBA, Dec. 22, 1992).

²³⁷ Indeed, from the perspective of Court's institutional legitimacy, one cannot underestimate the fact that in both the GSS affair and the Hamas Deportation affair the Court denied the petitions. The popularity of the result in these two salient security affairs during these years may have increased the legitimacy of the Court to a degree that a dozen less visible petitions that went against public opinion may not hinder.

²³⁸ Only 36.5% supported broader judicial review; 40% opposed that option and 23.6% were indifferent. See Barzilai, Yuchtman-Ya'ar, & Segal, supra note 3, at 74.

²³⁹ Id. at 83-84.

²⁴⁰ In 2006, the coverage of the Court's judgment upholding the policy known as “targeted killings” included two interviews with politicians. The first, MK Zahava Gal-On (Meretz-Yahad) criticized the Court's judgment saying: “we know that the assassinations were not [against] ticking bombs, they were a policy. We know it is terrorism against terrorism and that every assassination brings another one.” The second, MK Aryeh Eldad (National Union) was blunter in his criticism saying that “we are now in a situation that we need to rejoice on a decision justifying self defense, it is no longer trivial for the HCJ to say that a Jew has a right to defend himself against an Arab murderer.” Since the Meretz-Yahad party is considered the Court's most supportive party, Gal-On's criticism is quite telling. Even more telling was the reporter's concluding sentence: a “senior judge, who knows the security forces well, told us that this judgment is only a façade. In the end one should remember this is a war and with all due respect for the rules set by President Barak, the military has its own rules and considerations.” Indeed, the Court's judgment, upholding a very popular security policy was severely criticized in television coverage. Mabat, items no. 9509-9510-07 (IBA, Dec. 14, 2006).

²⁴¹ Mautner, supra note 2, at 129-30.

²⁴² Supra note 2.

²⁴³ Barzilai, Yuchtman-Ya'ar, & Segal, Supra note 3, at 76.

²⁴⁴ Bogoch & Holzman-Gazit, supra note 6, at 55, 79, 81 (newspapers continued to present the Court through the mythical perspective).

²⁴⁵ Friedman, supra note 17, at 2617-20 (summarizing several studies); Sarat, supra note 15, at 439 (“The Supreme Court also appears to benefit from widespread ignorance of its decisions.”). Contra Gibson, Caldeira & Baird, supra note 15, at 344, 356 (“Generally, to be aware of a court is to be supportive of it” and “to know something about the courts is to be favorably oriented toward them.”); Gibson, James L., Caldeira, Gregory A., & Spence, Lester Kenyatta, The Supreme Court and the US Presidential election of 2000: Wounds, Self Inflicted or Otherwise?, 33 Brit. J. Pol. Sci. 535, 553 (2003)Google Scholar (“To know courts is indeed to love them, in the sense that to know about courts is to be exposed to these legitimizing symbols”).

²⁴⁶ Mautner, supra note 2, at 163.

²⁴⁷ Benvenisti, supra note 224, at 447-48 (at the time of the Hamas Deportation affair (1992) the public was already aware of the political aspects of the law, and the Court's ability to base its legitimacy on the mythical image was hindered); Yadlin, Omri, Judicial Discretion and Judicial Activism as a Strategic Game, 19 Mehkarei Mishpat 665, 706–07 (2003)Google Scholar [in Hebrew] (the shift to value discourse lifted the veil of professionalism from the Court). Mautner, Benvenisti, and Yadlin do not support these claims with any empirical data. They assume that a change in the Court's discourse is immediately translated to a change in public discourse. Issachar Rosen-Zvi does not make this leap. Though he adopts Mautner's analysis regarding the change from formalism to a value discourse in the Court's adjudication during the 1980s, he identifies the decline in the Court's public support only during the 1990s. To solve this discrepancy he argues that only during the 1990s the change in discourse and in the role of the Court “started to have its mark and brought … the loss of legitimacy in wide parts of the Israeli society.” Rosen-Zvi, supra note 139, at 95-96. Rosen-Zvi's article lacks support for his claim that the decline in Court's legitimacy occurred during the 1990s. Moreover, his analysis also lacks the mechanism that explains why the change in Court's adjudication did not arrive to the public discourse during the 1980s.

²⁴⁸ Contra the dominance of political frames in covering the Canadian Supreme Court. Sauvageau, Schneiderman, & Taras, supra note 20, at 227-29 (“In the largest sense, coverage begins and ends with politics … legal aspects of decisions were buried beneath the avalanche of political reporting.”) Interestingly, in his 2008 book Mautner admits that the decline in public confidence of the Court is the result of the recent exposure to the public eye of self-interest motives (low politics) in the work of the Court (Mautner, supra note 106, at 219-21). However, he does not claim that this exposure is a result of a change in the media. Mautner traces most of the events which exposed the Court's inner political considerations to 2005 and afterwards (at 221-23). Hence, he is unable to explain the decline in public support that started in the beginning of this century, It should be stressed that Mautner retains his view that the change in Court's function during the 1980s from a “professional institution” to a “political institution” led to a change in the perception of the Court by the public (at 206). Hence, he is still unable to explain why a decline in public support did not occur during the 1980s.

²⁴⁹ Dotan, supra note 1, at 140.

²⁵⁰ Barzilai, Yuchtman-Ya'ar, & Segal, supra note 3, at 178 (the Court's legitimacy is unhindered even while it acts as society's moral vanguard); Segal, supra note 74, at 281. On the concept of a supreme court as society's moral vanguard see Posner, Richard A., The Supreme Court, 2004 Term: Foreword: A Political Court, 119 Harv. L. Rev. 31, 81–84 (2005)Google Scholar.

²⁵¹ Kahn, supra note 129, at 125 (“Power is strongest not when it coerces compliance but when alternatives are not even imagined.”)

²⁵² Bogoch & Holzman-Gazit, supra note 6, at 54 (“very little empirical research has been conducted on the media coverage of supreme courts outside the United States and Canada.”); Reichman, Amnon, The Dimensions of Law: Judicial Craft, Its Public Perception, and the Role of the Scholar, 95 Cal. L. Rev. 1619, 1637 (2007)Google Scholar (“Approaching the question of public confidence in the Court without recognizing the role that the media plays is like assuming no friction in physics: it disregards the medium. Surprisingly, few constitutional scholars have taken the time to examine the matter conceptually or empirically in depth.”)

²⁵³ See Balkin, Jack M., What is a Postmodern Constitutionalism?, 90 Mich. L. Rev. 1966, 1980–81 (1992)CrossRefGoogle Scholar (discussing the impact of media on philosophical projects of dialogism. Indicating that since philosophers neglected to take into account the change in technology, “[D]ialogism may already have died the death of a thousand sound bites.”) There are of course scholars who did not neglect the media's role as the conduit between the Court and the public. Thus, Gavison explains that

lawyers' disappointment … from the legal system may bring dissatisfaction and criticism but it will not easily transform into a loss of public legitimacy in the entire judiciary. Odd decisions or antagonizing decisions that receive high visibility … may hinder public confidence more than controversies concerning the scope of intervention by the HCJ.

Gavison, Kremnitzer & Dotan, supra note 2, 106; Barak-Erez asserts that the Court's characterization as “activist” in the 1980s is “based on famous cases” Barak-Erez, supra note 16, at 116, 123.

²⁵⁴ Faced with this perplexity, Mautner writes in 2002 that a “question arises” concerning the lack of a backlash reaction from political and cultural groups that “lost” as a result from the changes in the Court's adjudication. Mautner claims that a “group” of secular Jews, the secular-liberal Jews, who were the beneficiaries of the changes, supported the Court due to their “anxiety” in face of the loss of hegemonic control of Israeli society. They avoided directing any criticism against the Court even though the Court had strayed from its established line of adjudication. According to Mautner, this group believed that the Court identifies with secular liberal values and that therefore it will curb the rise of the non-secular non-liberal groups. Mautner, , Anxiety, supra note 73, at 645, 648-49, 656-57, 683–84Google Scholar. This explanation fails to explain the high public support the Court received during most of the 1990s from all strata of the Israeli society (except from the Orthodox Jews). Mautner is aware of his failure to explain why the support of the groups who were hurt (according to him) by the Court's activist jurisprudence, did not decline during the 1990s (“I cannot answer this question” at 684). He offers several explanations (formulated as questions). Though Mautner examines media materials as part of his presentation of the 1980s' “anxiety,” he does not examine the coverage of the Court. Thus he does not identify the media coverage as the missing link in his theory. In his 2008 book Mautner is still perplexed by this phenomenon. Mautner, , Law, supra note 104, at 217–18Google Scholar.

²⁵⁵ Edelman, supra note 219, at 9, 19, 172 (“mass publics respond to currently conspicuous political symbols: not to ‘facts’”); Post, Robert C. & Siegel, Neil S., Theorizing the Law/Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring Legacy of Paul Mishkin, 95 Calif. L. Rev. 1473, 1485, 1497 (2007)Google Scholar (“Mishkin saw that because the legitimacy of the Court depends upon public perception, and because public perception follows the logic of symbolism rather than professional reason, the very legitimacy of the Court could depend upon its acting in ways that were inconsistent with professional reason.”).

²⁵⁶ Cripe, Kelly L., Empowering the Audience: Television's Role in the Diminishing Respect for the American Judicial System, 6 UCLA Ent. L. Rev. 235, 254 (1999)Google Scholar (“the view that the audience receives of the trial is not the reality of the courtroom, but the skewed reality that television has constructed to entice its viewers.”)