Soundbite Rules

—Or Bassok, Max Weber Fellow, European University Institute

The picture above, showing the Israeli Supreme Court in the background, is not a photomontage. This is how the Israeli Supreme Court (hereinafter: the Court) looks from the rooftop of a new movie theatre in its close vicinity.[1]

In some ways, this picture captures the argument of my forthcoming Article, The Israeli Supreme Court’s Mythical Image – A Death of a Thousand Sound Bites. Courts reside in majestic buildings partly in order to create an “awe inspiring” sense that will ensure public support.[2] This attempt to ensure public legitimacy based on legitimating symbols is hindered in the setting shown in the photo by placing entertainment in the vicinity of the Court’s building, and not by any reasoned arguments.

Similarly, based on an empirical study of the coverage of the Court in television news editions, I show that the erosion of the Court’s mythical image began because of the rise of entertainment logic in news coverage as a result of the entrance of a second commercial channel (Channel Two) in 1993. The mythical image that controlled television coverage of the Court from the inception of the public broadcaster (Channel One) in 1968, and up until 1992, was dissolved not by normative arguments against the Court’s rise of power but by “infotainment.” The shift in the medium led to a shift in the coverage of the Court. Rather than an expert, apolitical institution, the Court has been presented more and more as influenced by political and personal considerations, just as the other branches of government.

In this post, I first present the puzzle at the basis of my empirical investigation of the coverage of the Court. Second, I briefly explore the findings on the coverage of the Court between 1993 and 1996. Next, I discuss the idea that there are shifts in the manner in which we imagine social reality. In the article, I argue that the “eyeglasses” through which Israelis have been viewing the Supreme Court have changed. For some political scientists, my attempt to extract a solidified notion of a prism, that is more than the sum of the data I collected, may seem strange, not to say mistaken. My aim in this post is to further explain my methodology.[3] I believe that this idea of “eyeglasses” (or in the professional jargon: social imaginary), is relevant to any constitutional scholar who aims to give a thick description of a constitutional culture. I conclude this post by discussing the beginning of an experimental live coverage of some of the Court’s oral hearings.

The Puzzle at the Basis of the Entire Project

Current leading comparative accounts of the rise of judicial power explain the expansion in the role of judges worldwide as an elite endeavor against the populous. Robert Bork writes on “an activist judiciary [that] helps to advance the ends that democratic branches of government would never sanction.”[4] Ran Hirschl writes on national high courts that act in the name of elites “insulating policy making in general, and their policy preferences in particular, from the vicissitudes of democratic politics.”[5] Yet opinion polls have consistently shown that many national high courts receive high public support as institutions.[6] If national high courts act in order to fortify the hegemony of the elites and against the wishes of the multitude, how have these courts received such strong public institutional support over a long period of time?[7]

Scholarly literature has yet to adequately grapple with this puzzle. In an article published in 2009, I suggested one explanation with regards to the Israeli Supreme Court.[8] Based on an empirical examination of the coverage of the Court by the single Israeli television channel, until 1992 (Channel One), I argued that if the media fails to present the shift in a court’s adjudication, or if it presents it as a continuation of the judiciary’s previous practice, then the public may continue to support its national high court on the basis of image of the court that was created before the rise in its power. Although the Israeli Supreme Court went through a revolutionary decade during the 1980s, becoming highly involved in almost every aspect of Israeli political life, the coverage of the Court by the sole television channel continued to adhere to the mythical image, as it had from the inception of television in Israel in 1968. Until 1992, the Court was presented as a neutral, objective, and apolitical expert that reached its decisions in accordance with the law. I noted that the data indicate that the Court’s mythical image began to crumble in Channel One’s news television coverage after the entrance of the commercial channel (Channel Two) in 1993. In my new article, I substantiate this claim.

Contrary to scholars who argue that the change in the Court’s public image came about solely because of changes in its adjudication,[9] I argue that a change in the medium changed the way the Court was depicted. Though television has existed in Israel since 1968, until the entrance of Channel Two it did not function according to the medium’s ideology. Commentators described Channel One’s news edition as a “televised newspaper” or a “photographed radio.”[10] Only when Channel Two entered the arena, did Channel One succumb to the medium’s biases and start to present the Court through a different prism. What will keep viewers watching the news became a central aim in choosing and framing new content. This was the ideology of this new technology.[11] Subsequently, items were shortened, and issues were covered through the prism of low politics, with emphasis on conflict and drama. The Court was presented more and more as an institution directed by political considerations rather than solely by legal expertise. The shift in the prism through which the Court was perceived meant that even if the Court’s behavior in 1991 was not so different to what it had been in 1994, it was depicted very differently on television in 1994.

Shifts in the Social Imaginary

After their exodus from Egypt, during their time in the Sinai desert, the Twelve Tribes of Israel were led by Moses in their long journey to Canaan. Yet, Moses’ leadership was contested. On one occasion, after Korach and his camp of supporters publicly contested Moses’ leadership, the earth “opened its mouth” and Korach and some of his supporters fell into the chasm.[12] In today’s reality such an event, would be reported, at least by non-religious outlets, as a natural disaster. No one would claim that the disaster proved that the deceased leader was wrong. Yet in Biblical time, people’s minds were “furnished” differently. Miracles still existed as a way of understanding the world, as a proof for the rightness and wrongness of a political claim. Thus, the Biblical narrator describes the miracle as a proof that Moses’ way was the correct way.

This is an example how the social imaginary affects the way in which we perceive reality.[13] There are prisms through which people collectively frame social reality. These prisms change, usually very slowly. After they change, it is sometimes very difficult to truly understand people who lived under a social imaginary different to our own.

Rapid shifts in social imaginaries occur many times as the result of a technological shift. Niel Postman brings the following beautiful example:[14] the Bible tells us that King Solomon was considered the wisest of all people since (among other things) “he uttered 3,000 proverbs.”[15] This was how an oral society, in which memory has an utmost importance, imagined what it is to be wise. Today, with internet sites holding tens of thousands of proverbs, a man like Solomon who offers a proverb for every situation, would surely not be considered the wisest of them all.

The change in the way Israelis perceive the Court is another example for a shift in the social imaginary that occurred in part because of a development that is akin to a technological shift. As television started functioning according to its biases as a medium, the coverage of the Court changed. A comparison between television coverage of two attempts by the Court’s judges to be elected to the position of the President of Israel serves as a vivid example of the shift in the prism through which the Court was depicted. Though the office of the President is primarily ceremonial and considered apolitical, the selection process is political: the Israeli Parliament (the Knesset) elects a candidate. In 1983 Judge Menachem Elon ran for the office as the candidate of the right against the left’s candidate, Haim Herzog. The race was close and ended with 61 votes for Herzog and 58 for Elon (out of 120). The political aspect of the race was not mentioned in the two items that covered Elon’s race in Channel One’s news edition. Even in a context that demanded coverage from a political perspective, television coverage still adhered to the mythical perspective. No one raised the question how after his defeat Elon could return to being a judge at the Court.[16]

In 2014, retired Judge Dorner ran for the same office. She was not adopted as the candidate of any party. Yet from the moment she presented her candidacy, television presented her as having leftist positions. When asked in interviews about her “leftist positions,” Dorner vehemently denied any such orientation, adhering to the mythical image, saying that as a judge she was neutral and apolitical.[17] Yet faced with this framing, and with time running out, in a highly controversial move, she sent an email to Knesset members and journalists. In the email she referred to judgments she had made in which she had decided in favor of right-wing positions.[18] Dorner failed in her campaign and received only 13 votes, arriving fourth.

Conclusion

As long as the Court’s mythical image was intact, the Court’s “long standing position” was “to avoid all forms of interaction with the media and to restrict itself to the reasoning expressed in judgments.”[19] The belief was that invisibility serves the Court best. For example, in 1985, the Landau committee for judicial ethics rejected the idea that judges should be more active in explaining their judgments through the media and noted that the Court’s invisibility and concealment played a large role in its prestige.[20] Recently, retired Judge Eliezer Rivlin summarized the change stating that: “A fundamental shift has occurred in the outlook of the Israeli judicial system towards the media; while an attitude of non-involvement has historically been perceived as necessary for maintaining the public confidence in the judiciary, the modern belief asserts that openness and transparency play an important role in safeguarding the public confidence.”[21]

Following several attempts by Knesset Members to enact a law to allow live coverage of the Court’s hearings, a committee headed by Judge Dorit Beinisch was appointed to examine the opening of Israeli courts to electronic media. In 2004, the committee recommended allowing, on an experimental basis, limited media coverage of certain Supreme Court oral hearings.[22] Even though Judge Beinisch was appointed President of the Court in 2006, it took the Court eight more years until its judges slowly realized that the mythical image was shattered, never to return.[23] The genie of political framing is out of the bottle, so to speak.

After another draft law was tabled in the Knesset, the Court recently agreed to experiment with live coverage of its hearings. A few weeks ago, for the first time, a live coverage of a Court oral hearing was broadcast on the Court’s website.[24] The Court still holds the final say on which oral hearings will be broadcast.[25] This attempt to evade the prism through which the media covers the Court and to allow the public a relatively unmediated access to oral hearings is a major shift in the Court’s media strategy. In a reality in which the Smurfs and the Court coexist in the media on the same plain as part of a flat world of infotainment, the judges seem to understand that concealment and legitimating symbols cannot anymore ensure public support.

Suggested Citation: Or Bassok, Soundbite Rules, Int’l J. Const. L. Blog, Jan. 14, 2015, at: http://www.iconnectblog.com/2014/12/soundbite-rules

[1] For a picture of the Court without Smurfs see http://en.wikipedia.org/wiki/Supreme_Court_of_Israel# mediaviewer/File:Israel_Supreme_Court.jpg

[2] For an examination of the architecture of courts worldwide and its legitimating effects see Judith Resnik & Dennis Curtis, Representing Justice: Invention, Controversy, and Rights in City-states and Democratic Courtrooms (2011).

[3] See also Or Bassok, How to Investigate the Social Imaginary, 5 JRLS 2 (2012).

[4] Robert H. Bork, Coercing Virtue – The Worldwide Rule of Judges 11 (2003).

[5] Ran Hirschl, Towards Juristocracy 12 (2004).

[6] There are of course exceptions. During the first ten years of the South African Constitutional Court, the public has awarded the Constitutional Court with a low level of support. For references on sources examining public support for national high courts see Or Bassok, The Two Countermajoritarian Difficulties, 31 St. Louis U. Pub. L. Rev. 333, 379 & n. 278 (2012). For the South African case see Theunis Roux, The Politics of Principle: The First South African Constitutional Court, 1995–2005 (2013).

[7] I discuss this puzzle in Bassok, supra note 6, at 376-80.

[8] Or Bassok, Television Coverage of the Israeli Supreme Court 1968-1992: The Persistence of the Mythical Image, 42(1) Isr. L. Rev. 306, 307 (2009).

[9] See Or Bassok, The Israeli Supreme Court’s Mythical Image – A Death of a Thousand Sound Bites, 23 Michigan State International Law Review 39, 76-77 (2014) (discussing the work of scholars who view the Court’s adoption of the “constitutional revolution” thesis as the cause for the shift in its public image).

[10] See Gideon Doron, The Politics of Mass Communication in Israel, 555 Annals Am. Acad. of Pol. and Soc. Sci. 163, 170 (1998).

[11] See Neil Postman, Amusing Ourselves to Death 84-88 (1986).

[12] Numbers 16-18:32.

[13] For discussions of the social imaginary generally see Charles Taylor, Modern Social Imaginaries (2004); Yaron Ezrahi, Imagined Democracies (2012). In the legal context see Paul W. Kahn, The Cultural Study of Law (1999).

[14] See Postman, supra note 11, at 25.

[15] 1 Kings 5:10-12.

[16] See Bassok, supra note 8, at 343-44 (examining the coverage of Elon’s race for presidency).

[17] See Or Bassok, The Presonalization Revolution, The Seventh Eye, May 28, 2014 (in Hebrew) (linking to a television news item in which Dorner’s race for the presidency was covered).

[18] See Elad Mann, A Key Novella/Affair, The Seventh Eye, May 30, 2014 (in Hebrew).

[19] Eliezer Rivlin, Courts and the Media: Opening new Doors: Current Aspects of Court – Media Interaction in Israel in The culture of Judicial Independence: Conceptual Foundations and Practical Challenges 311, 311 (Shimon Shetreet & Christopher Forsyth, eds., 2012).

[20] Landau Committee on Judicial Ethics (1984) published in The Judiciary Bulletin 1, 7-8 (1985) (in Hebrew).

[21]  Rivlin, supra note 19, at 324.

[22] Committee for the Examination of the Opening of the Israeli Courts to Electronic Media (2004) (in Hebrew).

[23] See Bassok, supra note 17.

[24] To view a recording of the broadcast: http://elyon1.court.gov.il/heb/tv/index.html

[25] Tova Zimoki, Starting Next Week: The Supreme Court Goes Live, Ynet, September 3, 2014 (in Hebrew).

The author is grateful to Martijn Schoonvelde for his valuable comments.