Israel’s contentious move to begin curtailing the powers of its Supreme Court presents a potentially uncomfortable dynamic for progressives in the United States: Don’t the critiques leveled by the Israeli right mimic calls by the left to reform the U.S. Supreme Court? Following the so-called judicial reforms passed by the Israeli parliament, the far-right minister of national security, Itamar Ben-Gvir, argued, “Israel will be a little more democratic, a little more Jewish, and we will be able to do more in our offices.” Echoing that sentiment, another minister claimed the move will “restore … more proper checks and balances between the Knesset, the government, and the justice system.”
Democracy, accountability, checks and balances: Isn’t that precisely what reform-minded liberals in the United States—who have advocated for everything from stripping the federal courts of their jurisdiction to outright packing the Supreme Court with numerous liberal justices—are after? Michael Dreeben argues in Just Security that the eerie similarities between the rhetoric of the U.S. left and that of the Israeli right should give us pause: “The mass protests in the streets in Israel,” he writes, “should be a warning sign to all those who would alter the structure and independence of our courts because of outrage over what the current Court decides.”
But Dreeben’s is a glib and facile argument. The similarities at hand, after all, are merely superficial. The right’s attempt to neuter the Israeli judiciary bears little resemblance to the situation in the U.S., and it’s important for our leaders to understand why. Rather than falling into the familiar traps of defending the supremacy of the judiciary in order to harmonize critiques of the Israeli right, progressives in the U.S. should unapologetically characterize Israel’s judicial coup for what it is: a brazen, right-wing power grab.
As a basic matter of government structure, there is an entirely different set of concerns when it comes to balancing power between the legislatures and the judiciaries in the U.S. versus their counterparts in Israel. While in the U.S. there are numerous restraints on Congress’s power (a bicameral legislature, a Constitution, state governments, the filibuster, etc.), Israel sports a unicameral legislature with few checks and balances or separation of powers. In other words, the particular concern in the U.S.—that without judicial reform, the public simply has few avenues to truly achieve legislative results—is simply not a major issue in Israel.
Beyond that, the left’s critiques of the U.S. Supreme Court stem from a very specific problem and set of circumstances: the Republican Party’s capture of the judiciary and the federal courts’ decades-long encroachment on policymaking. Indeed, the political hardball tactics that have led to a Supreme Court majority appointed by presidents who lost the popular vote has created a very unique structural dilemma in the U.S., where the public is effectively ruled by a court that bears no resemblance whatsoever to the public will. Despite the Israeli right’s attempts to convince us otherwise, the extent of judicial minority rule in the U.S. is simply not comparable.
Relatedly, intent matters. The calls for reform in the U.S. follow decades of expansive, counter-majoritarian rulings from the Supreme Court on countless major issues, from abortion to gay rights, gun policy, voting rights, and much, much more. Indeed, these rulings have not only amounted to a direct assault on the will of the people and their elected representatives but also have elevated the judiciary, which our Constitution envisions as the least powerful branch, to a super-legislative body. The same simply cannot be said of our Israeli counterparts. Instead, the Israeli right’s primary gripes with their Supreme Court are things like rejecting religious exemptions from military service and disallowing Prime Minister Benjamin Netanyahu from appointing a convicted fraudster to a ministerial position. While the Israeli Supreme Court certainly has played a substantial role in shaping public life in Israel, the breadth and public support of its rulings simply do not fall within the same stratosphere as the U.S. Supreme Court.
Worse yet, nearly everyone understands—and some on the Israeli right have admitted—that the latest move is part of a much broader effort to neuter Israel’s Supreme Court, further entrench right-wing rule, and potentially interfere with Netanyahu’s impending criminal trial. This quest is hardly a good-faith debate about the role of the judiciary in a liberal democracy; it is a raw attempt to shift power toward an unprecedentedly radical right-wing government amid extraordinary public outcry.
Thus it is wrong to frame the issue broadly as one regarding “judicial independence” or “checks and balances.” There is no serious philosophical or legal debate occurring in Israel. To pretend otherwise only serves to reinforce the idea—which is pervasive across the aisle in American government and is the root of our own burgeoning constitutional crisis—that courts should occupy such a prominent place in public life in the first place. The issue posed by the Israeli right’s latest move, then, is not a legal or structural one but a political one: This is about the illiberal right’s attempt to co-opt power and squash majority rule. Nothing about it should cloud our conceptions of our own government and the unique challenges posed by our judiciary.
What the saga in Israel has to offer us is not any lesson about the importance of protecting the judiciary or a warning about attempts to curtail the highest’s court’s power. Instead, it shows us that there is no one playbook for the destruction of democratic rule: It can come in many forms, by many bodies, at any time. The one consistent axiom shared by the right in both nations, as far as the state judicial system is concerned, is that all roads should lead toward impunity. Our job is to remain clear-eyed about the threat posed by right-wing rule within our own borders, wherever it may strike.
