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While Democrats attack the US Supreme Court, the political right in Israel is pushing to overhaul it – Are those trends similar?

Experts weigh in on the similarities and differences between the justice systems in both countries and the growing call to change them

U.S. Supreme Court justices pose for their group portrait at the Supreme Court in Washington, D.C., Oct. 7, 2022. Seated (L-R): Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts, Jr., Samuel A. Alito, Jr. and Elena Kagan. Standing (L-R): Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Ketanji Brown Jackson. (Photo: REUTERS/Evelyn Hockstein/File Photo)

Disappointed from the latest rulings on Roe v. Wade, college affirmative action, student debt and in the case of a Christian web designer, Democrats have renewed their attacks against the United States Supreme Court. Some lawmakers are calling for an 18-year term limit for justices, while others are advocating for an expansion of the court.   

Meanwhile, in Israel, the political right is the one pushing for an overhaul of the justice system. Prime Minister Benjamin Netanyahu’s government is moving ahead with a controversial judicial reform that has been facing a heavy public backlash with ongoing mass protests for more than 27 weeks now. In Israel, the political left is the one striving to conserve the current system. 

U.S. Senator Bernie Sanders (I-VT) tweeted last week, “In my view, if right-wing Supreme Court justices want to make public policy they should quit the Supreme Court and run for political office.” 

That is the kind of tweet you will find from right-wing lawmakers and pundits in Israel, who accuse the nation's Supreme Court of ruling with an activist, interventionist approach.  

U.S. Senator Marsha Blackburn (R-TN) wrote: “The Left is dangerously demonizing the Supreme Court simply because they disagree with its decisions.”

That is an argument the left in Israel often makes against the right. 

However, aside from the opposite political allegiances, are these two trends somewhat similar? 

Prof. Alan Dershowitz, an expert on constitutional law, told ALL ISRAEL NEWS that every democratic country has a conflict with an elite court. He stressed that in both countries, “particularly the extremists are dissatisfied.” 

“They want to have it their way and they want to have it their way today,” he added. “Both extreme sides want to have it their way, and the sufferers would be the American people and the Israeli people who have really benefited from a strong Supreme Court in both countries.”

Dershowitz believes that “courts are not supposed to be reflective of the popular will. There's supposed to be checks on democracy, not part of democracy.” 

In his view, the American system is “broken,” whereas the Israeli one “works well.” Nevertheless, Dershowitz stressed that there is a need for both sides in Israel to “compromise a little bit” and reach a broad consensus. He agrees with the notion that the status-quo in Israel is no longer sustainable. 

Israelis who oppose the government’s judicial reform often invoke the American system in their arguments. On one hand, they claim that political appointments of justices like in the U.S. are a bad idea. On the other hand, they say the hard pill can be swallowed, as long as it comes with the balancing power of a constitution and two houses of Congress like in the United States. 

But could American Democrats “swallow” the Israeli system, in which public representatives have little say in the selection of judges? 

Sagi Barmak, director of the Adam Smith Program for Advanced Study in Philosophy, Politics and Economics at the Argaman Institute, is convinced that the answer is no.

“Democrats in the U.S. would be shocked by the thought that conservative judges, who make up the majority of the court, should be given a veto in the appointment of new judges,” Barmak wrote on Twitter. 

In an article for the conservative Israeli website “Mida,” he noted: “The conservatives' adherence to the principle of legal restraint is not surprising at all, neither in Israel nor in the United States. In both countries, legal activism was ultimately the result of the overreaching of liberal elites, who sought to advance a worldview that they were unable to advance through parliaments.” 

According to Barmak, differences between the political left and right in Israel and in the U.S., regarding their approach to the courts, are also not surprising given the different systems of governance. 

“Unlike in Israel, in the U.S. there is a constitution,” he noted. “When SCOTUS rules in a way that overturns Congress legislation, it does not switch the legislator’s will with the judges’ will. Rather, the court protects a solid majority of the population that enshrined its will in a constitution against a small, temporary majority that overreaches its authority.”

In Israel, the nation's Basic Laws are not a constitution, Barmak explained. 

“The Israeli Supreme Court – and not the public – is the one that has given those Basic Laws a status from which judicial review is applied. Therefore, judicial review in Israel is without grounds.” 

“On top of that, the Israeli Supreme Court implies that it has the authority to review not only ordinary legislation but also the Basic Laws, themselves. The equivalent of this in the U.S. would be a Supreme Court that does not review Congress legislation, but rather the articles of the constitution.”

For the sake of comparison, Kobby Barda – a fellow of the Chaikin Chair in Geostrategy at the University of Haifa – has turned the attention of his Israeli Twitter followers to a video posted by Progressive Representative Jamaal Bowman (D-NY).  

“The Supreme Court is obviously not here to work for the American people,” said the Congressman. “The Supreme Court is here to serve oligarchs… billionaires... large corporations…  white supremacy… white patriarchy and nativism.” 

Barda drew a line between Bowman’s grievances and those heard from the right in Israel. 

“I recommend taking a close look at the emerging trend here – an attack by U.S. Democrats on the Supreme Court. It appears as a synchronized progressive orchestra, similar to how the Israeli right-wing attacks the High Court and seeks significant constitutional changes using the exact same rhetoric, but from the opposite side,” he wrote

Barda added, “If we look at the Israeli political landscape, right-wing movements also speak about the need for judicial reform, claiming that it currently has no Jews of Mizrahi origin (Sephardic Jews) on the bench and that it mostly serves Ashkenazi elites.”

"In politics, extreme left and extreme right are not on a straight line but operate in a circle. If you go far enough from both the right and the left, the two lines eventually meet - national socialism," Barda quoted the TV show "Peaky Blinders" (Netflix), Season 6, Episode 2.

The bashing of the latest Supreme Court decisions by Democrats – including from U.S. President Joe Biden, himself – is being closely watched in Israel. One reason is the stark criticism in Washington against the Israeli government’s judicial reform. Those on the right point to what they see as a left-wing double standard.   

“I'm watching the legal pundits who were dismayed about judicial reform in Israel, but today they are shocked by a U.S. Supreme Court decision, and now they are demanding term limits and want to pack the court with additional justices to dilute their power. Stunning hypocrisy,” tweeted Joel Petlin, the superintendent of the Kiryas Joel School District in Orange County, NY and a contributor to numerous publications.

Not without a reason, his tweet was shared by many in Israel. 

Tal Heinrich is a senior correspondent for both ALL ISRAEL NEWS and ALL ARAB NEWS. She is currently based in New York City. Tal also provides reports and analysis for Israeli Hebrew media Channel 14 News.

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