New in WSJ: On Judicial Supremacy in America and in Israel

"The fundamental question in any system of government is: Who decides?"

The Wall Street Journal published my letter-to-the-editor concerning current debates about the Israeli judiciary. I tried to draw parallels between judicial supremacy in Israel, and in the United States.

Here is the opening (with all due credit to Judge Sutton):

The fundamental question in any system of government is: Who decides? America's founders framed a Constitution that carved out three branches of government that would check and balance each other. By contrast, the founders of Israel didn't frame a constitution at all. Yet somehow, in both countries, judicial supremacy took root ("God Save This Honorable Court, but Not That One" by Ruth Wisse, op-ed, Feb. 17).

The U.S. and Israeli Supreme Courts have both asserted the power to write the final word on any legal question (and, in Israel, nonlegal questions too). In the U.S., perhaps this power can be grounded in Article III of the Constitution. But in Israel any claim to judicial supremacy rests only on a house of cards.

You can read the rest here.

Comments

[Dr. Ed 2]

“The U.S. and Israeli Supreme Courts have both asserted the power to write the final word on any legal question”

No, the US Supreme Court does NOT have the power to be the final word on any legal question — Roger Taney tried that and was reversed by the 13th, 14th, & 15th Amendments.

The 16th Amendment was the repeal of a decision (correct) that income taxes were unconstitutional. I don’t remember the details of the 11th Amendment beyond the initial suit, but I suspect it's something similar.

Any SCOTUS decision can be reversed by a Constitutional Amendment — it isn’t easy, but it *has* happened at least twice.

But the really interesting example is Canada, where the legislature can reverse the decisions of it’s Supreme Court, and I believe that the Provinces can as well (or that Quebec* just did it regardless). As I don’t know Canadian law that well, I’m going to avoid giving specific beyond giving a pointer — look into Quebec (PdQ)’s ban on the commercial use of the English language in advertising — e.g. McDonalds can not have the word “hamburgers” on it’s signs.

*Like New York, Quebec is both a city and a province (think state) and the PdQ includes Montreal, which is upriver and far more English. While the whole country is officially bilingual, PdQ license plates are only in French, New Brunswick plates are bilingual, and the rest are only in English.

** Your letter is behind the paywall.

[SRG]

Dr Ed, rest of the letter:

Prof. Wisse wisely draws the stark contrast within the American left. It simultaneously defends judicial supremacy in Israel and opposes it in America. Indeed, Sen. Ron Wyden of Oregon recently called on President Biden to “ignore” a federal judge’s order. U.S. progressives had cheered for decades while liberal orthodoxy reigned supreme on the Warren and Burger courts. Now that a sometimes-conservative majority has emerged, the tables have turned. Yet, at the same time, Senate Democrats have urged the Israeli government to surrender to a liberal judicial hegemony.

I am skeptical of judicial supremacy. I don’t think the U.S. Supreme Court has a valid claim to this power. And, from an outsider’s perspective, the Israeli government should be entitled to make a similar judgment about its own courts—especially in the absence of a written constitution.

[Dr. Ed 2]

Thanks -- and I am surprised that Israel of all countries lacks a written constitution. Even the Soviet Union had a constitution -- they didn't follow it, but they had one. Most of the new African republics adopted constitutions upon independence. And the UN -- which created Israel -- was killing trees by the millions with the documents it was generating at the time.

[SRG]

I am surprised that Israel of all countries lacks a written constitution

I think it's because Israel, being formed from British Mandate Palestine, adopted much British law and jurisprudence.

[GKHoffman]

So did every state, but they all have constitutions anyway.

[Martinned]

They were going to have one, but it took them a while to figure out what it should say, and in the meantime they put in place a placeholder, and the placeholder kinda stuck. English common law has very little to do with it.

[David Nieporent]

The UN did not create Israel.

[myself]

A bit of context.

Judge Kacsmaryk is infamous for issuing pro-Conservative decisions with no bearing in law. And the Fifth Circuit and even SCOTUS have developed a habit of letting his erroneous rulings hold sway for as long as possible before overturning them.

Now, there is a concern that Judge Kacsmarky will try to rule to pull FDA approval of the abortion pill mifepristone, despite there being zero legal basis for doing so, and the GOP dominated courts letting the errant ruling stand for months or years.

In light of this, Sen Ron Wyden was specifically talking about the extreme measure of ignoring such an order, virtually no one has taken him up on that.

[Dr. Ed 2]

"there is a concern that Judge Kacsmarky will try to rule to pull FDA approval of the abortion pill mifepristone, despite there being zero legal basis for doing so"

There actually is -- the Dobbs decision said that states have the right to prohibit abortion within their borders should they so chose, and they can't do that without the ability to criminalize the possession of mifepristone within their borders. The argument is that since the FDA has approved mifepristone, states lack any ability to regulate it -- and my response is that the FDA also approved opiates -- and states absolutely regulate those...

I can see him overturning the FDA on the basis that much as a state has the right to essentially ban FDA-approved opiates, it also has a similar right to restrict FDA-approved mifepristone -- and until the FDA or DEA establishes the tracking bureaucracies for it that it already has for opiates, it can't be distributed.

Now the Obama/Biden administration is so lawless that I can see them ordering the FDA to defy the ruling -- but then red states can authorize bounty hunters to go into the blue states and kidnap the doctors prescribing mifepristone and we could be right back to where we were with the fugitive slave laws...

But the larger issue is that mifepristone has a 9% morbidity rate -- complications which often need medical intervention or the woman will die. So Abby Alpha mails mifepristone interstate to Betty Bravo who lives in, say, Florida. And Betty has complications, and goes to the hospital's emergency room.

Is she going to admit to having taken mifepristone -- I doubt it. And while you'd like to think that the ER would figure out what was wrong, medical care in busy ERs is often nonchalant -- I once made such a fuss about having a broken rib that they did a CAT scan to appease me -- and told me that I didn't have a broken rib, I actually had a ruptured appendix.

Politics aside, there will be women dying because of this...

absent the FDA/DEA establishing the recording & tracking bureaucracies that control the distribution and prescription of opiates, mifepristone should

[David Nieporent]

There actually is — the Dobbs decision said that states have the right to prohibit abortion within their borders should they so chose, and they can’t do that without the ability to criminalize the possession of mifepristone within their borders. The argument is that since the FDA has approved mifepristone, states lack any ability to regulate it — and my response is that the FDA also approved opiates — and states absolutely regulate those…

I would tell you to stay in your lane, but you don't appear to have one in the first place. None of what you just wrote is true.

[myself]

There actually is — the Dobbs decision said that states have the right to prohibit abortion within their borders should they so chose, and they can’t do that without the ability to criminalize the possession of mifepristone within their borders. The argument is that since the FDA has approved mifepristone, states lack any ability to regulate it — and my response is that the FDA also approved opiates — and states absolutely regulate those…

I can see him overturning the FDA on the basis that much as a state has the right to essentially ban FDA-approved opiates, it also has a similar right to restrict FDA-approved mifepristone

So let me get this straight.

Your claim is that because the FDA approved opiates, and the States regulate them, the court should now pull the FDA approval of mifepristone because some States now want to regulate (ban) it??

Doesn't the FDA approval of opiates proves that states can regulate an FDA approved drug?

— and until the FDA or DEA establishes the tracking bureaucracies for it that it already has for opiates, it can’t be distributed.

Not sure why the FDA (or DEA?!?!) is supposed to be doing this for the States.

Now the Obama/Biden administration is so lawless that I can see them ordering the FDA to defy the ruling — but then red states can authorize bounty hunters to go into the blue states and kidnap the doctors prescribing mifepristone and we could be right back to where we were with the fugitive slave laws…

Didn't take you long to jump to a civil war.

But the larger issue is that mifepristone has a 9% morbidity rate — complications which often need medical intervention or the woman will die. So Abby Alpha mails mifepristone interstate to Betty Bravo who lives in, say, Florida. And Betty has complications, and goes to the hospital’s emergency room.

This feels like a number created in the last couple years for the express purpose of this lawsuit.

Politics aside, there will be women dying because of this…

If mifepristone is banned? Women will absolutely be dying. It's pretty well established that abortion reduces maternal mortality, especially once women start turning to more dangerous alternatives for abortion.

[David Nieporent]

This feels like a number created in the last couple years for the express purpose of this lawsuit.

You give Dr. Ed too much credit; it feels like a number he made up.

[Martinned]

The U.S. and Israeli Supreme Courts have both asserted the power to write the final word on any legal question (and, in Israel, nonlegal questions too). In the U.S., perhaps this power can be grounded in Article III of the Constitution. But in Israel any claim to judicial supremacy rests only on a house of cards.

Now do Cooper v. Aaron. Where in Article III does it say this?

the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

[Bored Lawyer]

Article III states that there shall be a "Supreme Court." That certainly means that it's decisions bind all the federal courts, and it is pretty clear that it is binding on the state courts as well.

The issue in Cooper was whether the State had to obey a federal court order. Which it did. Put differently, SCOTUS decisions are binding on all US courts, and their orders, in turn, have to be obeyed by anyone brought before those courts.

Which is not all that revolutionary. If the Arkansas Supreme Court ruled on some issue of law, then all its courts have to follow it. A litigant is not free to say, "sorry, that was some other case, I am not bound by it."

[Ak Mike]

I don't think it is actually that clear that the US supreme court binds state courts, at least based on the actual words of the constitution. That was more or less the decision in Martin v. Hunter's Lessee, in the sense that the US supreme court ruled that it had appellate authority over state courts, and all the states have knuckled under, but Article III itself just says the supremes have appellate jurisdiction re the "judicial power of the United States", no mention of state courts.

[Rev. Arthur L. Kirkland]

The "due credit" was not expressed in the first two paragraphs?

[Bob from Ohio]

Unchecked judicial review has been a disaster in both countries. Hopefully Bibi won't cave under the unhinged opposition.

[David Nieporent]

As noted the other day, Bob is still upset about Brown v. Board of Education.

[myself]

I'm unable to read the paywalled article but being a Blackman article it's not too hard to guess the conclusions:

In the US with a Liberal government and Conservative judiciary, Judicial Supremacy is right and good!

In Israel with a far right government and less right judiciary, Judicial Supremacy is wrong and bad!

[GKHoffman]

Congratulations, you got it wrong again. From the letter: "I am skeptical of judicial supremacy. I don’t think the U.S. Supreme Court has a valid claim to this power."

[myself]

Well, I'm apparently mistaken. Perhaps Josh recognizes that intervention thwarts his preferred policy outcomes much more than it enables them.

[The Margrave of Azilia]

Judicial *supremacy* would entail

-Congress refusing to pass laws which the Supreme Court would deem unconstitutional (they veer to the other extreme, passing laws under the assumption that if it’s bad, the Supreme Court will stop it).

-Presidents refusing to pardon those whose conviction has been upheld by the courts – at least refusing to pardon on the basis of disagreement with the courts

…and basically going beyond mere obedience to court orders and shaping govt policy based on judicial opinions.

Anyway, Lincoln laid it on us most eloquently. Check the First Inaugural.

(Later, though, Lincoln allowed a loophole in his amnesty proclamation by which repentant Confederates could oppose the Emancipation Proclamation if the Supreme Court struck it down, so maybe Lincoln’s position was as they say “complicated.”)

[Fotheringay-Phipps]

There are several factors which make the judicial supremacy much more extreme in Israel than it is in the US.

1. Unlike in the US where federal judges are appointed by the government, in Israel judges are effectively appointed by the current judges (who have veto power over new appointments), such that the voters have no input into the process.

2. Under the Israeli version of judicial supremacy, a judge can override an executive branch decision by deciding it's "unreasonable", without needing to find grounding in any law or constitutional principle.

3. In Israel there are no jury trials, and also, the attorney general in answerable to the courts and not to the elected officials.

So in sum, the current situation in Israel is that of an unelected and self-perpetuating body with final say on any and all political matters, and is prosecutor and judge and jury on all criminal ones. It's a profoundly undemocratic situation, and is ripe for a democratic reform.

[Sims]

Josh, your letter was published in a newspaper that has this as the lede in a story about the student loan forgiveness case: "The Supreme Court will consider sharp curbs to the power of the executive branch in a case beginning Tuesday, potentially diluting the influence of future presidents for years to come." No one cares what a publication that prints such drivel has to say about legal issues.