Simon Agranat

Summary

Simon Agranat (1906–1992), as Lahav presents him: born in Louisville and raised in Chicago to Russian Zionist parents, a justice of Israel’s Supreme Court from 1948 to 1976 who “had a hand in every important political issue facing Israeli society”, and the judge Lahav credits with subordinating Mamlachtiut to the rule of law by building a judicial bill of rights without a written constitution (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 126-150).

Details

• Formation: son of Aaron and Polya Agranat; his father’s Haskalah Zionism, the family’s failed 1922 migration to Tel Aviv, and the 1921 Brandeis–Weizmann Split (see Brandeis-Weizmann Split) split his loyalties between Washington and Pinsk for life; at the University of Chicago Law School (from 1926) his heart went to Sociological Jurisprudence under Ernst Freund and to Cardozo’s The Nature of the Judicial Process, though he graduated with an average of 70 (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 194-606).

• Through Avukah he absorbed Labor Zionism; his 1927 transatlantic kibbutz-partnership project was defeated at the 1928 Pittsburgh convention after Chaim Arlosoroff broke a promise of support (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 540-606).

• In Palestine from 1930: clerk to Mordechai Eliash, Haifa practitioner in partnership with Ya’acov Halevy, volunteer defender of illegal immigrants at Safed, Haganah member; he accepted Palestinian citizenship, losing his American citizenship, against his father’s opposition, in order to become a magistrate in 1940 (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 607-930).

• As a Haifa magistrate (1940–1948) he developed the balancing approach and elaborate opinion style that became his trademark, kept writing opinions in Hebrew with Moshe Landau against a 1942 English directive, and convicted Black Saturday curfew violators with nominal fines only (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 920-985).

• The book’s Notes fix the citizenship loss the narrative describes: the United States Department of State held that he lost United States nationality on 17 March 1941 by acquiring Palestine citizenship on that date, the certificate of loss approved on 20 September 1941 (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 3676-3822).

• The Notes also record his Hebrew University teaching: a professor of criminal law since a law faculty was established there and, in the note’s words, universally recognized as the founder of modern Israeli criminal law, he learned after more than fifteen years of teaching that he was not entitled to any pension, a wrong he raised only obliquely, in his 1979 Bublik speech (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 3088-3234).

• On Haifa’s Arabs in 1948 he held, until the end of his life, that the flight was voluntary: “no one forced them to go. They left.” Lahav records the claim beside her own account of a Yishuv-helped exodus (see Haifa) (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 985-996).

• Appointed president of the Haifa district court in 1948 after Pinhas Rosen sacrificed his first Supreme Court nomination for unanimity, then to the Supreme Court in January 1949; chaired the 1950 commission on the Bernadotte assassination (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 1003-1110).

• His experimental rights jurisprudence of 1949–1954 — Al-Couri, Podamsky Case, Kol ha-Am (16 October 1953) and Mandelbrot Case — is Lahav’s foundation account of liberal, progressive jurisprudence in Israel; Agranat himself singled out Kol ha-Am and Mandelbrot as his best opinions (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 1160-1434).

• The book’s Notes sample the wider run of that jurisprudence: the deportation cases Khalf, Al-Ayoubi, Abu Gosh and Bader; the Keynan recognition, probably Israel’s first, of a reporter’s privilege; his confidential 1953 Zriffin memorandum rejecting strict liability for membership in a terrorist organization and deterrent sentences for teenagers; Meysan’s adoption of his Mandelbrot position; Heruti’s narrowing of Brun and of sedition, with proof of a passage to violent action required and the government’s terrorist designation held not dispositive; the Taufik Ziad dicta limiting police orders to prisoners to what law expressly permits; and Ajami’s rejection of a husband’s claimed rights over his estranged wife’s body (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 4411-5292).

• The Kasztner Trial appeal (1957–58) produced his 194-page opinion reversing Halevy on three of four counts, built on premises about history, hindsight and a leader’s duty to the community as a whole; Lahav calls it probably his finest hour as a judge (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 1471-1732).

• In the Eichmann Trial appeal (1962) he wrote the per curiam jurisdiction portion, collapsing “crimes against the Jewish people” into crimes against humanity, and silently approved Eichmann’s death sentence against his lifelong abolitionism (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 1733-1936).

• The 1962 Agranat Commission report he chaired made the attorney general autonomous of the minister of justice (see Gideon Hausner); he suffered diagnosed “fatigue” drafting its decisive part (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 1937-2043).

• As chief justice (from 18 March 1965) he weathered the Tel Giborim/Golan crisis, decided Yeredor on the Jewish state as a “fundamental constitutional premise”, and dissented in Shalit by refusing to decide, introducing Process Jurisprudence (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 2044-2551).

• The book’s Notes add to the chief-justice record: the seniority principle behind his appointment (a product of Smoira’s stroke and the 1953 crisis); his Judges Conference opening position that a judicial decision contains a value judgment depending on the judge’s philosophy, world-view and character; the Conservative-flavour Mekitan and Turjeman opinions and Segev’s refusal to make the Court a forum for the religious-marriage reform struggle; the still-classified opinion, with Silberg and Landau, upholding the prohibition of Isser Harel’s Eichmann-abduction memoirs; and Bergman (1969), the first case in which the Court exercised judicial review and invalidated a Knesset law. In interview he recalled ordering an Arab café reopened against a military governor’s closure, and defended Yeredor by saying, “I did what the people wanted,” which Lahav takes to mean that the cardinal precepts of Zionism had to be upheld (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 6469-7056).

• He chaired the Agranat Commission on the Yom Kippur War, whose report cost him more agony than any other period of his career; he retired on 5 September 1976, declined a presidency feeler in 1972, and died at home on 10 August 1992, his gravestone inscribed “who judged the truth truthfully” (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 2552-2861).

• The book’s Notes complete the record: for his Shalit dissent he assembled a borrowed library — Kaufmann and Rav Tsa’ir from his late father’s shelves, Friedlaender from his father-in-law, Barker, Eisenstadt, Finkelstein, Rotenstreich and Kelman from family and neighbours — and in Tamarin (1972) he held for the Court that the emerging Israeli identity should retain a religious element while Israel is built on “Liberal-secular elements”; the post-Shalit sample shows his deference and restraint (the Temple Mount petition held non-justiciable, Fauzi Al-Asmar’s confinement to Lod left undisturbed, Kaniel’s refusal to extend Bergman, Burnovski on bigamy) beside the Holzman dictum that Reform conversions in the United States were valid and Shimshi’s criminal-procedure liberalism. For the Agranat Commission, the Notes record Elazar’s resignation letter refuting the commission’s account of the minister of defence’s authority, Zeira’s claim that Agranat himself advised him not to be represented by an attorney, and the Court’s denial of Gonen’s petitions against the commission’s narrow reading of the Commissions of Inquiry Law. His last reported panel case is dated 5 September 1976 and his very last single-judge opinion was not published; in retirement he taught at Bar-Ilan, Yeshiva University and Santa Clara, received the 1986 Sussman Prize for his “Life work of truth and justice”, and in 1988 agreed to serve as president of the Association for Civil Rights in Israel — a step Lahav reads as showing his chief-justice prudence stemmed from his conception of his position rather than a change of heart on rights. After 1967 he declined to move the Supreme Court to East Jerusalem: “There are enough good places in Hebrew Jerusalem.” (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 7351-8820)

Related pages

Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, Israeli Supreme Court, Kol Ha’am Case, Podamsky Case, Mandelbrot Case, Kasztner Trial, Eichmann Trial, Yeredor Case, Shalit Case, Agranat Commission, Process Jurisprudence, Pnina Lahav, Moshe Landau, Louis D. Brandeis