Israel’s new government, the most right-wing in its history, existed for only six days before it proposed legislation allowing the Knesset to nullify non-unanimous Supreme Court rulings by a simple majority vote. According to a Jewish People Policy Institute poll, the potential end of any institutional check on the new government’s power has divided the country, with a plurality of 44 percent of the population in opposition. More disturbing, 60 percent believe the debate over the proposal will lead to violence.
The country’s largely ceremonial president warned of “societal and constitutional collapse.” And roughly 100,000 Israelis recently poured into the Jerusalem streets to protest. Considering that America’s population is about 35 times larger than Israel’s, imagine a protest that flooded Washington, D.C., with 3.5 million people. That’s what messing with an independent judiciary can do to the body politic.
So, as we watch Prime Minister Benjamin “Bibi” Netanyahu jeopardize Israel’s democratic stability, let’s be thankful that in the United States, President Joe Biden and the previous Democratic-led Congress resisted the pressure to do the same.
The pressure was palpable, with many rank-and-file Democrats legitimately livid at how Senate Republicans refused to hold a vote on President Barack Obama’s nominee to fill the seat made vacant by the death of Antonin Scalia. Legislation to add four seats to the United States Supreme Court was sponsored by 60 Democratic House members and three Democratic senators, as well as endorsed by the Congressional Progressive Caucus. Another bill to classify Supreme Court Justices as “retired from regular active service” after 18 years—an effective term limit—was supported by 18 House Democrats and six Senate Democrats.
These bills were not backed by Biden nor given floor votes by congressional leaders. Instead, Biden sought to tamp down the clamor for radical changes with a classic Washington maneuver—a blue ribbon commission, which explored the issue, offered no policy recommendations and was quickly forgotten.
The prospects for Netanyahu’s government to enact radical judicial reform are better than they were for America’s Democrats because, in Israel, reform is being driven by top government officials. Netanyahu himself is not supposed to be involved with the legislation, according to a legal brief issued by the Attorney General in early February, because he is facing a corruption trial and manipulating the judiciary is a conflict of interest. But Netanyahu’s Deputy Prime Minister Yariv Gideon Levin is leading the charge, and before the Attorney General’s brief, Netanyahu defended the judiciary-neutering proposals in public appearances.
The pending Israeli proposals and the unsuccessful Democratic ones differ because of the designs of the Israeli and American Supreme Courts.
The United States Constitution established a Supreme Court with lifetime tenures, presidential nominations, and Senate confirmations. The Israeli government does not have a constitution per se but is instead girded by a series of “basic laws” sporadically passed by the Knesset since the nation’s founding in 1948.
Israel had a Supreme Court under British rule, and it was kept in place upon achieving independence. To determine who serves on the Court, the Knesset created a Judicial Selection Committee in 1953 composed of elected officials, judges, and legal professionals. A 1984 basic law modified the committee and set the retirement age for Supreme Court judges at 70. In the 1990s, after the Knesset passed a basic law on human rights with provisions preventing other laws from contradicting its principles, the Supreme Court declared that legislation effectively created “constitutional rights” that the Court had the power to uphold. Therefore, any “regular legislation” that violates those rights can be invalidated by the Court—effectively asserting judicial review akin to what the U. S. Supreme Court did in 1803 with its seminal Marbury v. Madison opinion.
The Israeli Supreme Court has a liberal reputation. According to an analysis by legal professors Amichai Cohen and Yuval Shany for Lawfare, eight of the 15 judges lean left. But three liberals are nearing retirement age, and Netanyahu’s government sees an opportunity. Beyond Levin’s proposal to give the Knesset the power to rescind most Court rulings, draft legislation in the legislative body’s law committee would allow legislation to be enacted with provisions that enable it to contradict basic laws and forbid it from being subject to judicial review.
The draft legislation would also give the ruling government a majority on the Judicial Selection Committee, partly by replacing bar association members with politicians, just in time for the forthcoming retirements. That may superficially look like a move toward America’s system, in which only elected officials play a role in Supreme Court appointments. But America’s constitutional system is carefully calibrated so that each of the three branches of government can check each other. No one branch can dominate the judicial branch; elements of the executive and legislative branches must agree to seat a member of the judicial branch. In Israel’s parliamentary system, the executive and legislative branches are not separated; elected members of the Knesset fill executive positions up to and including the post of Prime Minister. If the reforms are enacted, Israel’s democracy won’t have any checks and balances between the branches of government. One ruling coalition can dominate everything.
Levin, unsurprisingly, rejects the notion that his plan undermines democracy. “These reforms will strengthen the judicial system and restore public faith in it,” he assured, because under the current system, “People we did not vote for decide for us … That’s not democracy.”
Democrats in America who wanted to pack the Court made similar arguments, and we must grant that those Democrats had a case to make. Candidate Donald Trump in 2016 pledged to appoint Supreme Court justices who would overturn Roe v. Wade. Senate Republicans stretched the rules to the breaking point to maximize their powers. With the added help of a little fortuitous and macabre timing, Republicans quickly confirmed three justices on narrow party-line votes, creating an anti-Roe majority.
But an interesting development came six weeks after Roe was struck down. Kansas voters rejected an attempt to amend the state constitution and allow the legislature to ban abortion broadly.
At that point, it was already evident that federal legislation to pack the Court was moribund. Senate moderates Joe Manchin and Kyrsten Sinema had already made clear they wouldn’t abolish the filibuster to help such legislation—or any party-line legislation outside of budget reconciliation measures—get to Biden’s desk. But instead of channeling grassroots energy to pressure Manchin and Sinema, Democrats took the cue from Kansas and began planning more political action at the state level, lobbying legislators and gathering signatures for state referendums. In November, Michigan voters negated a 1931 abortion ban with a constitutional amendment enshrining abortion rights, while voters in Montana and Kentucky rejected anti-abortion measures. Even after the U.S. Supreme Court issued one of its most disastrous opinions in history, those who opposed the ruling fought back within the existing rules, a testament to the durability of American democracy.
And that democracy needs an independent judiciary. Yes, Republicans found a way to manipulate the system and stack the court with conservative ideologues. Beyond the Dobbs decision overruling Roe, this Court has issued right-wing opinions with flimsy reasoning that constrain federal and state action on climate change, gun safety, and the separation of church and state. However, no system can prevent all bad outcomes. Issuing wrong opinions doesn’t automatically mean our judiciary is no longer independent and of democratic value. For example, we’ve seen conservative justices defect to the liberal camp to uphold the rights of LGBT employees, Native Americans, and immigrant “Dreamers.”
Critically, Donald Trump’s appointees refused to help him steal the presidential election or cover up his involvement. (Only Clarence Thomas, a George H.W. Bush appointee but spouse to the prominent election denier Ginni Thomas, dissented when the Supreme Court ordered the release of Trump White House records to the House January 6 Committee.) Because the lifetime appointment insulates judges from politics, they had no obligation to do Trump’s bidding. Despite how our democracy has been tested in recent years, it still stands primarily because of the elegant system crafted by America’s founders.
Unfortunately, Israel’s founders—in particular, Israel’s first Prime Minister, David Ben-Gurion—deliberately chose a flimsier governmental infrastructure, purposely rejecting the idea of having a constitution and an independent judiciary. Haviv Rettig Gur of The Times of Israel recently recounted the debate:
In January 1950, as the Knesset considered the question, David Ben-Gurion offered an impassioned defense of unrestrained majority rule.
“Would our people agree,” he wondered, “to a situation in which seven judges … can cancel laws that the people desire? Only the nation determines the constitution; that is, a constitution is what the people want and decide after an open inquiry and a vote.”
A lifelong socialist, Ben-Gurion was certain that the future was progressive. Hard-to-amend constitutions and powerful courts, he believed, served elites and reactionaries and preserved inequalities … The Israeli left would never end up writing that constitution, never limit the powers of the Knesset, never take seriously the problem of majority rule – until, of course, it suddenly found itself in the minority.
Israel’s right-wingers can legitimately, if perversely, use the words of their left-wing founders for validation. But the reaction of the Israelis in the streets, and public opinion captured in polls, undercuts Ben-Gurion’s simplistic argument. Vast numbers of Israelis agree that judges should be able to check the majoritarian impulses of the government if they violate basic principles and disrespect minority rights.
In America, Democrats, when they held a narrow majority of Congress, sidelined radical judicial reforms and avoided the usual midterm backlash, narrowly losing the House but gaining a seat in the Senate. In Israel, where governments have collapsed frequently, Netanyahu’s tenuous right-wing coalition holds just 64 seats in the 120-member Knesset. Before going through with their radical judicial reforms and courting a debilitating backlash, they might want to consider learning a lesson from today’s Democrats, along with the American founders.