The Volokh Conspiracy
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A Consistent Approach to Protecting Judicial Review in Both the US and Israel
Why I oppose both right-wing efforts to neuter judicial review in Israel and left-wing attempts to do the same in the US.
The debate triggered by right-wing Israeli government's controversial plan to neuter the Israeli Supreme Court and essentially eliminate judicial review has led to accusations that people are taking inconsistence stances on judicial review in Israel relative to their position on its use in the United States. Many on the left who support court-packing or other measures to neuter the US Supreme Court oppose Prime Minister Benjamin Netanyahu's plans to do the same to its Israeli counterpart. And vice versa.
Ilya Shapiro, director of legal studies at the conservative Manhattan Institute, tweets that "In Israel, the Left wants Supreme Court to maintain its awesome power (incl picking its own members) bc that benefits the Left. In the US, the Left wants to delegitimize a Court that's no longer doing its bidding. It's all about power, not principle." What Shapiro (who, to forestall a common form of confusion, I should note is a different person from me) says about the left can just as easily be said about many on the right who cheer on Netanyahu, while opposing any attempt to significantly weaken the power of the US Supreme Court.
However, it's a mistake to assume that everyone is inconsistent in this way. I, for one, oppose the right-wing Israeli government's judicial reform plan, and am also a longtime opponent of court-packing and other proposals that would neuter judicial review in the US. This combination of views may be a minority stance. But it's far from unique to me. A good many US liberal legal scholars and commentators also oppose court-packing in the US, while simultaneously (I suspect) opposing Netanyahu's plans, as well.
In both countries, I support strong judicial review because it preserves civil liberties and property rights and protects various types of minorities more than the political process is likely to do, if the latter is left unchecked. In addition, gutting judicial review is a standard tool of authoritarians seeking to undermine liberal democracy, used in such countries as Hungary, Turkey, and Venezuela. Here in the US, independent federal judges - including many conservative ones - rejected Trump's efforts to overturn the 2020 election. A judiciary under the thumb of the party in power would have been far less likely to do that. What I wrote in 2019 about judicial review in the US also applies to Israel and most other democracies:
For all their serious differences and very real flaws, mainstream liberal and mainstream conservative jurists still agree on many important questions, including protection of a wide range of freedom speech, basic civil liberties, and ensuring a modicum of separation of powers, among others. History shows that these are the sorts of restraints on government power that the executive… is likely to break during times of crisis, or when they have much-desired partisan agendas to pursue. Such actions are especially likely if the president [or prime minister in a parliamentary system] is a populist demagogue with authoritarian impulses…..
The deeply illiberal elements in Israel's present ruling coalition demonstrate that authoritarian populist impulses are a serious menace in that country, as well (as is also true in many other democracies). All the more reason to preserve judicial review as a check on them.
These general strengths of judicial review outweigh reservations we might have about specific judges and individual decisions they make. That's especially true if one of your main objections to the current majority on US Supreme Court is that it doesn't protect certain rights enough (abortion is an obvious example). A strong judiciary might well reinstate Roe v. Wade in the future. By contrast, gutting judicial review insures such a thing can never happen.
There are, to be sure, various ways to try to distinguish between the US and Israeli cases. Perhaps the most obvious is that, in the US, judicial review is the product of a written Constitution, while in Israel it rests on much shakier legal foundations. But what is true of the powers of the Israeli Supreme Court is also true of those of the parliamentary Knesset majority that seeks to neuter it. Neither has any basis in a written constitution enacted with broad popular support. That's because Israel does not have a written constitution at all!
Unless and until Israel does enact a written constitution, the powers of all Israeli political institutions rest on some combination of precedent, tradition, and political norms. So long as that remains the case, it makes sense to back those traditions and norms most likely to protect liberty, constrain tyranny of the majority, and forestall incipient authoritarianism.
As for the argument that the Knesset majority has special legitimacy because it was democratically elected, it's important to remember that democracy cannot be democratic all the way down. It depends on procedures and structures that themselves are not democratically chosen. That's especially true in Israel. Thanks in part to the absence of a written constitution enacted with broad supermajority support, the Israeli public has never had a meaningful chance to approve the procedures under which the Knesset is elected. As it turns out the present ruling coalition got into power largely because quirks in the electoral system excluded two parties opposed to them:
Two political parties, progressive-Zionist Meretz and Palestinian-nationalist Balad, failed to meet the 3.25 percent vote minimum required to enter the Knesset, and so cost the anti-Netanyahu half of Israeli politics about 6% of the total votes cast. Netanyahu's 64-seat majority is almost entirely a function of that threshold mechanic, which caused the disappearance of well over a quarter-million votes below the cutoff.
In addition, democracy isn't inherently good, and other values can legitimately trump it.
There are other potential ways to distinguish the two cases. But, like the written-constitution theory, they too either collapse upon inspection or aren't strong enough to justify completely neutering judicial review, as opposed to merely cutting back at the margin.
I will not try to go over them all here. But I will note one that potentially suggests it's more important to preserve the Israeli court than its US counterpart: the fact that the US system has a range of other checks on majority rule (federalism and separation of powers), whereas Israel has very few. There is some validity to this distinction. Elsewhere, I have indicated that Israel would do well to institute some non-judicial checks on majoritarianism, of its own. But the enormous size and scope of the modern federal government (which regulates almost every aspect of society), combined with increasing concentration of power in the hands of the executive, ensure that the US cannot readily dispense with judicial review, either.
None of this proves that either the US or Israeli systems of judicial review are perfect. There is plenty of room for debate over incremental reforms. I myself, for example, favor instituting term limits for US Supreme Court justices. But it would be a mistake to gut judicial review in either country - and for much the same sorts of reasons.
