1. "Justice Agranat Receives His Notice of Appointment as President of the Supreme Court," Jerusalem Post , 19 March 1965, 8.

2. The regulations concerning the appointment of a chief justice were set in the early 1950s and were largely a product of the personal and political circumstances of the time. Smoira, the much-admired chief justice, suffered a stroke and became increasingly incapable of discharging his duties. His retirement, however, was postponed until the proper arrangements for his pension were solidified. Meanwhile, Olshan took over Smoira's responsibilities. The Court came to consider the question of how a new chief justice would be selected in a climate of political partisanship, shortly after the judicial crisis of 1953. It is in this context that one should understand the justices' recommendation to apply the principle of seniority. The recommendation was endorsed by the government, and on 5 August 1954 Olshan was appointed chief justice.

3. In his memoirs, Olshan denied these rumors categorically ( Din u-Dvarim , 367).

4. The appointment of the deputy chief justice represented an even more difficult hurdle. By seniority, Moshe Silberg was to ascend to the position. But Bernard Joseph, the minister of justice, feared that should Agranat become incapable of fulfilling his duties, Silberg would become chief justice. After a bitter argument, the Appointment Committee adjourned without making a decision. Joseph, not accustomed to having his judgment overruled, was angry; Shmuel Tamir, now a member of the committee, threatened to make the issue public. Agranat remembered several conversations with Joseph, during which he eventually managed to persuade the minister to remove his objections. Shalom Cohen, "Agranat Is Nominated Supreme Court Head," Jerusalem Post , 4 March 1965, 1. Why Joseph opposed Silberg is not too difficult to fathom. An Orthodox Jew who believed that Jewish law should and could govern the Jewish state could easily appear to Joseph as more representative of galut than of the nation reborn. It may well be that Joseph was eager to have secular leadership for the Court, emblematic of the Zionist dream of joining other Western democracies in form as well as substance.

5. Smoira was reputed to have called Olshan "Pahad Yitzhak"--the fear of Isaac--implying that he instilled fear in those close to him. Others called Olshan "the evil dwarf" (because he was rather short). break

6. In his opening remarks Agranat said: "Judicial and legal jurisprudence is not expressed and reduced to a mechanical application of laws and decisions. . . . [W]e all know . . . that a judicial decision contains what is generally called a value judgment, an ethical judgment . . . and the making of such a judgment depends, of course, first on the legal and general philosophy of the judge, on his world-view, but also on his character and the measure of responsibility he feels toward his role, not only from the perspective of the purpose to do justice in the particular case, but also from the perspective of his judicial work generally; from the perspective of efficiency . . . and other perspectives." Protocol of the Opening Session of the Judges Conference , 13 October 1965, 4-5, Agranat papers, Agranat family, Jerusalem.

7. "This conference is meant for judicial self-criticism. We must examine ourselves, our judicial activity in general, not the judicial activity of any particular judge. All the topics we chose for discussion . . . [have in common] the theme of judicial policy generally; since judicial policy, even if it is not written in the law books, is capable of influencing the judicial substance." Ibid.

8. In the summer of 1965, Agranat wrote two opinions that had a Conservative flavor. In C.A. 54/65, Mekitan v. Mekitan , 19(2) P.D. 651 (1965), Agranat wrote a concurring opinion in order to "refute . . . the claim that we are sitting as an appellate jurisdiction to review the judgment of the rabbinical court" (p. 666). In Cr.A. 94/65, Turjeman v. Attorney General , 19(3) P.D. 57 (1965), Agranat, with Silberg and Mani, and against the dissenting opinion of Justices Sussman and Landau, decided that the criminal law, which prohibited the "holding or administering of a place for prostitution," also applied to a place that was used by the prostitute for the dual purposes of work and residence. The case was particularly painful for Agranat because Sussman criticized Agranat's literal interpretation, calling it excessively formalistic. It appears that Agranat's formalism was designed to reach the Conservative conclusion that would permit the expansion of the war against prostitution.

After Yeredor the Conservative trend continued. See, for example, H.C. 130/66, Segev v. Rabbinical Court , 21(2) P.D. 505 (1967). Israeli Jews, married in a private ceremony, petitioned the Court to order the rabbinical courts to make a declaratory judgment about their marital status. Agranat held that because the petitioners did not exhaust their alternative remedies, the Court should not intervene. Agranat further said: "[T]his Court cannot be used--after the legislator in 1953 decided in favor of religious marriages as an exclusive option--as a forum where the struggle in favor of this reform shall be conducted" (p. 541).

To this list should be added an opinion classified as secret, upholding the government's power to censor a publication based on data obtained during an author's years in government service. Agranat, with Justices Silberg and Landau, held that the government may prohibit the publication of Isser Harel's (former Mossad chief) memoirs concerning the Eichmann abduction. The book, Isser Harel, Ha-Bayit bi-Rehov Garibaldi [The House on Garibaldi Street] (Tel Aviv: Sifriyat Maariv, 1974/1975), has since been published, but the opinion remains classified. This information is based on an untitled essay in honor of Simon Agranat written by Moshe Ben-Ze'ev (in the Agranat papers, Agranat family, Jerusalem).

However, while Agranat tilted toward a more Conservative judicial stance, his continue

judicial work as chief justice still contained the reformist elements that had characterized his earlier work. One of the most significant cases of his tenure as chief justice was the first case in which the Court exercised judicial review and invalidated a Knesset law. In H.C. 98/69, Bergman v. Minister of Treasury, 23(1) P.D. 693 (1969), a unanimous Court invalidated a campaign-financing law on the grounds that it violated the equal-protection guarantee of Basic Law: The Knesset, without meeting the procedural requirements that would validate such a violation. Agranat recalled that Justice Landau, who wrote the opinion for the Court, declined his advice to make Bergman an anonymous per curiam opinion. Another indication of his reformist inclinations is an announcement that "[t]he conference of Supreme Court justices decided that henceforth the Court will follow the principle that the fact that an attorney's fees were not paid on time should not be a justification for recusing the defense attorney from the obligation to represent his client on appeal." Simon Agranat, " Hoda'a--Se'if 15" [Announcement--Section 15 of the Criminal Procedure Law 5725-1965], 22(1) P.D. 308 (1968).

See also Ben-Moshe; Cr.A. 281/69, Bar Shalom v. State of Israel, 23(2) P.D. 85 (1969), where Agranat overruled a conviction for violation of a traffic sign, holding that drivers should not be required to ponder the meaning of vague traffic signs; and chap. 12, n. 76.

9. The ministry was in the hands of Chaim Moshe Shapira, leader of MAFDAL. But Shapira, who also served as minister of religious affairs, left the Health Ministry in the hands of his close associate, Raphael.

10. The "contribution" of 220,000 Israeli pounds was to be paid to two institutions: The Rav Kook Institute and a Yeshivah named after Rev Maimon. Both Raphael and Spiegel were involved in the affairs of these institutions. Moshe Golan, Doh Va'adat Hakira [Report of the Commission of Inquiry], 7 March 1965, 6, 33, in the author's files.

11. Levy Eshkol became prime minister in 1963 after Ben-Gurion, angry and frustrated by MAPAI's failure to heed his demands concerning "The Affair," left the government and later the party.

12. M. Golan, Doh, 33. Although the report's conclusions were made public, the report itself remained classified, thus feeding speculations and innuendo. In October 1965 the report was released as a part of the governmental effort to assuage the crisis.

13. "Ha-MAFDAL Yitba Limnoa Kfiyat Hizakekut le-Shiput Hiloni [MAFDAL Will Demand the Prevention of Coercive Secular Judicial Jurisdiction]," Ha-Arets, 23 September 1965, 3; "Raphael Says N.R.P. for Jurisdiction to Religious Courts," Jerusalem Post, 24 September 1965, 8. The rabbinical courts of Israel have exclusive jurisdiction in matters of marriage and divorce among Jews in Israel. In some other matters (personal status and succession, for example) the rabbinical courts have concurrent jurisdiction, conditioned upon the consent of all parties. Criminal law is within the exclusive jurisdiction of the secular courts. Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, 7 L.S.I. 139 (1952/1953).

14. "Lishkat Orche ha-Din Megalah Herdatah al Divre Yitzhak Raphael" [The Bar States Alarm at Raphael's Speech], Davar, 1 October 1965, 2.

15. See discussion on p. 103.

16. See also "Rejecting Raphael," Jerusalem Post, 8 October 1965, 9. Indeed, continue

within ten years MAFDAL would break its "historic alliance" with MAPAI and form a coalition with Likud. The roots of this major political shift could be found in the affair of Tel Giborim.

17. Aryeh Tsimuki, "Me-Hashash le-Hitpatrut ha-Shoftim ha-Elyonim Pursam Doh Golan [The Golan Report Was Published for Fear of the Resignation of the Justices]," Yediot Aharonot, 4 October 1965, 1; "Yefursam Gam Kovets ha-Eduyot she-Nimseru bifne ha-Shofet Golan [The Evidence Heard by Judge Golan Will Also Be Published]," Ha-Arets, 5 October 1965, 1, 3; Yosef Harif, "Ma Garam le-Pirsum ha-Doh ha-Maleh [What Caused the Publication of the Full Report]," Maariv, 4 October 1965, 11.

18. The "Agreement to Maintain the Status Quo"--that is, to maintain public religious observance (for example, shutting down transportation on the Sabbath)--was the result of fierce negotiations between Rabbi Leib Fishman Maimon, leader of MAFDAL, and Ben-Gurion in 1948. From Independence onward, secular Israelis challenged the legality of the status quo. See Rubinstein, Ha-Mishpat ha-Konstitutsyoni, 260. Rubinstein's book, the leading textbook on Israeli constitutional law, takes a decidedly secular position and is reflective of the view of mainstream secular Israelis on the issue.

19. See Justice Haim Cohn's statement in affirming Spiegel's conviction: "[The reporting of Spiegel to the police] was an exemplary act of good citizenship . . . that every law-abiding citizen and every conscientious citizen with a whiff of public responsibility is bound to make." Cr.A. 316/64, 325/64, Spiegel v. Attorney General 18(4) P.D. 7, 35 (1964). For a discussion of mamlakhtiyut, see M. Cohen, Zion and State, 228.

20. For a sample of these cases, see: H.C. 155/60, Elazar v. Mayor of Bat Yam, 14 P.D. 1511 (1960) (denying a license in order to promote a religious purpose violates the law); H.C. 262/62, Perets v. Kfar Shmaryahu, 16 P.D. 2101 (1962) (invalidating the refusal of a local community to rent a hall to Reform Jews to hold a religious service); H.C. 143/62, Funk Schlesinger v. Minister of Interior, 17 P.D. 225 (1963) (the ministry must register as married all Israeli Jews who were married abroad, regardless of the halakhic validity of the marriage); H.C. 231/63, Retef v. Minister of Trade and Industry, 17 P.D. 2730 (1963) (the Ministry of Trade and Industry cannot condition issuing an import license on the presentation of a kosher certificate from the rabbinate); H.C. 301/63, Streit v. Chief Rabbi, 18(1) P.D. 598 (1964) (the chief rabbinate cannot use the statutory exemption from bigamy [the permission to marry a second wife] as a means to coerce the first wife to agree to a divorce; this opinion was overruled in 1969 by Agranat, F.H. 10/69, Burnovski v. Chief Rabbis, 25[1] P.D. 7 [1971]); H.C. 195/64, Ha-Hevrah ha-Dromit Marbek v. Chief Rabbinical Council, 18(2) P.D. 324 (1964) (despite protestations by the rabbinical council that it is not subject to judicial review, the Court held that it would intervene when the rabbinate acted ultra vires).

21. "Shapira: Be-Inyan Raphael Paal Eshkol Tahat Lahats u-Mitoh Pahad ma Yihtevu [Shapira: In the Matter of Raphael, Eshkol Acted under Pressure and out of Fear of Public Opinion]," Yediot Aharonot, 22 October 1965, 2.

22. Agranat had started his efforts to heal the rift between the religious and the secular as soon as he was appointed chief justice. The staunchly secular Olshan was replaced by Yitzhak Kister, a devoutly religious judge. It was the first nomination continue

of a religious judge since the appointment of Justice Silberg to the bench in 1949. Kister's appointment raised the number of religious judges to two out of nine. The decidedly secular composition of the Court explains its willingness to expand the principle of the separation of church and state in the 1960s. During Agranat's tenure as chief justice, more moderate justices were appointed, thereby steering the Court away from contentious rulings on this issue. See also chap. 12, n. 8. In Israel, judges are appointed by a committee composed of members of the Supreme Court, the executive, the Knesset, and the bar, but the chief justice does have considerable influence on the decisions. See, generally, Shimon Shetreet, "Developments in Constitutional Law: Selected Topics," 24 Is. L. Rev. 368 (1990).

23. See discussion on p. 191.

24. Agranat, Judges Conference, 12-13. The remarks appear to have been made spontaneously.