Diversity, Dissent and Representation: Lessons From The First Minority Judge in the Israeli Supreme Court
| Author | Manal Totry-Jubran |
| Published date | 01 August 2022 |
| Date | 01 August 2022 |
| DOI | http://doi.org/10.1177/09646639211043801 |
| Subject Matter | Articles |
Diversity, Dissent and
Representation: Lessons
From The First Minority
Judge in the Israeli Supreme
Court
Manal Totry-Jubran
Associate Professor, Law Faculty, Bar Ilan University,
Ramat Gan, Israel
Abstract
This paper seeks to enrich existing empirical research on substantive representation in
the judicial system by exploring a case study of the Honorable Justice (retired) Salim
Joubran, the first ethnic-minority judge appointed to the Supreme Court of Israel. By
employing a dual methodology of qualitative discourse analysis and dissenting quantita-
tive studies, the study investigates when, why and how he dissented in controversial cases,
which are defined as cases that resulted in non-unanimous votes. The study shows that a
quantitative study on dissenting opinions of a minority judge alone did not provide com-
prehensive conclusions. The complementary qualitative discourse analysis shows that in
cases that challenged state actions that impacted his social group, Joubran employed dis-
tinct strategies and reasoning that are akin to feminist judgments approach. Hence, the
study adds to existing research on judicial diversity indicating that women and ethnic
minorities judges not only share common challenges but might also operate similar rea-
soning strategies. In light of these insights, the study calls for employing the combined
qualitative and quantitative methodology on examining judgments focusing on dissenting
opinions of women and ethnic minority judges as it offers a complex understanding of
substantive representation and provides answers regarding the socio-legal effects of
group affiliation on judgments.
Corresponding author:
Manal Totry-Jubran Associate Professor, Law Faculty, Bar Ilan University, Ramat Gan 52900, Israel.
Email: manal.totry-jubran@biu.ac.il
Article
Social & Legal Studies
2022, Vol. 31(4) 603–622
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639211043801
journals.sagepub.com/home/sls
Keywords
Judicial Diversity, minority Judges, dissenting opinions, discourse analysis, feminist
judgments approach, multicultural States
Introduction
Scholarly research on judicial diversity provides two theoretical arguments for the neces-
sity of promoting diversity in the judicial systems of multicultural states (Hunter, 2015a:
123). One refers to the importance of “descriptive representation”and the other to that of
“substantive representation”(Mansbridge, 1999: 629).
The idea behind descriptive representation is that the presence of women and minor-
ities on the bench may improve people’s perception of justice and boost support for the
judicial system, regardless of the outcome of one specific case or another (Ifill, 2000).
Therefore, striving for the courts’composition to reflect the population is a significant
end in itself. The substantive representation justification asserts that, due to their
unique social background and attributes, minority judges bring to the court a wide
range of moral and social perspectives with regard to their own social group’s
interests and sometimes those of other underrepresented social groups as well
(Kastellec, 2013: 167–68). Thus, appointing minority judges who reflect the social
makeup of a society as a whole is vital for expressing the norms of the various groups
within a judicial system.
There are prolific empirical studies on the substantive contribution of the racial, ethnic,
and gender makeup of the judiciary system in multicultural countries. Said research has
examined whether the ethnic identity of minority judges in multicultural societies do
affect their judicial decisions, and has provided contradictory answers (Moran, 2006;
Chew and Kelley, 2012; Sen, 2017; Rackley, 2013).
This paper seeks to add another layer to existing empirical research on substantive
representation by exploring the judicial behavior of the first ethnic-minority judge
appointed to the Supreme Court of Israel, the Honorable Justice (retired) Salim
Joubran. Inspired by the methodology employed by the feminist judgments approach
of combining quantitative study with qualitative analysis of judgements, the article exam-
ines Joubran’s presence and contribution to the essence of judicial diversity of the Israeli
Supreme Court (ISC). Through investigating when, why and how Joubran dissented, I
analyze whether (and, if so, to what extent) his social background and group affiliation
may have constructed his judicial reasoning and voting.
As the first and sole ethnic minority judge on the bench, Joubran encountered chal-
lenges in ruling controversial cases, which I define here as cases that resulted in non-
unanimous votes, especially those concerning his social group. In such cases, Joubran
struggled between maintaining an impartial image while engaging ethnic minority per-
spectives in his decision-making. I argue that this struggle compelled him to seek strat-
egies that established his status as a professional judge, and acceptable in the eyes of his
fellows. These strategies include, among others, placing facts and issues within their
broader social and legal context and drawing upon relevant existing research. What char-
acterizes these strategies is that they that do not include a clear allied rhetoric and do not
604 Social & Legal Studies 31(4)
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