The Israeli government has just passed a law that weakens the power of that country’s supreme court; sparking protests both here and in Israel. This law allows the Knesset, the Israeli legislature, to overrule any court decision restricting or overturning its legislation. Heads of state, including Joe Biden, have deplored this measure, which supposedly would remove any constitutional restriction on the present (right-of-center) Israeli coalition.
Having just been on an endless thread with American Jewish liberals, I discovered that Prime Minister Netanyahu was acting in a “Hitleresque” fashion by supporting this irresponsible measure. Indeed, this is supposedly the kind of threat to democracy that other Hitlerian leaders, e.g., Donald Trump and Vladimir Putin, would likely unleash. I came away from my visit to the leftist echo chamber with the impression that Bibi was listening to The Donald or perhaps to the Russian president when he embarked on his lawless act.
Those with a less critical attitude toward the measure have noted the inappropriateness of the American president’s protest. According to Ruth Wisse, writing in the Wall Street Journal, Biden is “unwise to caution Israel” about legal changes. “The judiciary holds greater power in Israel than in any other Western democracy.” “In the absence of a written constitution, Israel’s Supreme Court insists that its power transcends the power of other branches of government.” Not surprisingly, according to Wisse, this protest comes at a time when the Biden Administration is working to undermine the protection of equal rights for all American citizens. Biden and his advisers are in fact annoyed that “conservative justices seem to hold sway” and are ready to change the American Supreme Court by packing it with congenial leftists. Wisse underlines the hypocrisy of Biden’s protest against reducing the “independence” of the Israeli court when he and other Democrats are ready to move mountains to reconstruct our own highest court for obvious ideological reasons.
There is a larger context for the impassioned protests against changes in the status of the Israeli Supreme Court. In a forthcoming contribution to Chronicles, Hebrew scholar Yiftach Ofek explains that the same ideological division that has taken shape in Israel, Western Europe, and the United States is at work in the debate over the Israeli law. In Israel one finds the usual confrontation between a globalist elite and its acolytes and those who feel loyalty to a homeland or traditional community. The debate about the proper powers of the Israeli court sees Right and Left lined up on opposite sides.
Whether the powers of our courts are embodied in a constitution or, in the Israeli case, the provisions of a Basic Law, partisan camps divide in a predictable way throughout the West over the question of judicial governance. The reasons for this are not far to seek. Right and Left differ over the practice of subjecting legislatures to the will of the judiciary. Justice Clarence Thomas’ complaint about substantive due process being pulled out of the 14th Amendment and invoked by courts to frustrate the will of nonprogressive majorities exemplifies a widespread grievance among American conservative constitutionalists. Any constitutional fig leaf will suffice, or so it is argued, to allow courts to prevent legislatures from doing what is antithetical to a leftist agenda. Thomas has famously gone after courts for inventing “unenumerated rights” to impose their political will.
The Right, just about everywhere in the West, has come to dislike politically engaged courts. These institutions are accused of weighing in predictably for the Left while being deaf to the Right’s cries for equal justice. European courts have ignored the suits of angry citizens objecting to the curtailing of their right of free expression, and these courts refused to uphold the freedom of movement of those affected by long, COVID lockdowns. In our country many on the Right are declaiming against the arbitrary detention of January 6 protestors and denouncing courts for not taking seriously enough evidence of a rigged election in 2020. If there is concern about a double standard of justice, it would be fair to say that courts are generally less favored the further one moves away from the Left.
Wisse and other defenders of the present Israeli government focus on the exceptional nature of the Israeli Supreme Court operating in the absence of strict constitutional procedures. This seems to be the view of, among others, Dov Fischer writing in the American Spectator. According to Fischer, Israel’s leftist judiciary has just “gone wild.”
The truth may be more complex. What has happened in Israel mirrors what we see throughout the West. The Right with some justification accuses the courts of seizing political power and using it in a blatantly partisan way. It is, as Oftek states, the “international” character of what has transpired in Israel that makes it sound familiar outside the Middle East. The globalist Left is scolding Israel’s nationalist coalition for doing what the Right outside of Israel may also be envisaging, namely clipping the wings of a supercilious, ideologically driven judiciary.