A few days ago, U.S. President Barack Obama launched a preemptive attack on the U.S. Supreme Court for considering the constitutionality of his healthcare legislation, saying that overturning the legislation would be “unprecedented” and “extraordinary,” especially because it “was passed by a strong majority of a democratically elected Congress.”
Obama fears that the Court, which is comprised of a majority of “conservative” justices and which is headed by Bush-appointee Chief Justice John Roberts, may accept the argument that forcing individuals to purchase health insurance may stretch the U.S. government’s constitutional authority to regulate interstate commerce beyond its limits.
What’s noteworthy about the statement, from an Israeli perspective at least, is not the implications for healthcare or the effect on Obama’s re-election, but how his comments were received.
Republicans were quick to attack the President and reiterate the constitutional arguments against the healthcare law. More than that, they and many others wondered what exactly the President meant by “unprecedented” and “extraordinary” – since U.S. courts have reviewed the constitutionality of laws for over 200 years.
But one thing Republicans did not claim was that the President was attempting to weaken the judiciary or American democracy.
Indeed, everyone in the U.S., from presidents to legislators, politicians of all stripes, commentators, media personalities, political activists, and the average Joe, has criticized decisions of the Supreme Court. President Roosevelt, for instance, publically attacked the Court’s overturning of his legislation and threatened to neutralize the Court’s independence by appointing more judges in order to stack the Court in his favor.
President Andrew Jackson famously said of a Supreme Court decision he didn’t like that “[Chief Justice] John Marshall made his decision, now let him enforce it.”
Some American legal scholars even contest the notion that the Supreme Court is the supreme authority on the constitutionality of laws. Yet, few in the U.S. have suggested that such criticisms undermine American democracy.
Here in Israel, however, where we lack a constitution, and the courts’ power of judicial review is not nearly as entrenched or as legally sound (did I mention we lack a constitution?), any suggestion of limitation on the Supreme Court’s power to “overturn a law that was passed by a strong majority of a democratically elected [legislature]” or other regulation of judicial power is characterized as an egregious attack on the supremacy of the law, the judiciary and Israeli democracy.
To understand the relative immunity the Israeli judiciary has from any check or balance, consider the fact that in Israel, the judiciary is considered to possess the power of judicial review, yet judges are chosen not by the Knesset.
Instead, judges are chosen by a nine-member committee comprised of three Supreme Court judges chosen by the Court President, two representatives of the government, two members of the Knesset and two members of the bar association.
In this scheme, the judges have the ultimate say over what is law, and it is also the judges themselves who have the most influence, if not a practical veto, over who are judges.
When MK Yariv Levin (Likud), an attorney by profession, introduced a proposal to have judges also come before the Knesset Committee on the Constitution, Law and Justice for approval, Levin and the proposal were derided as harming Israeli democracy.
Retiring Supreme Court President Dorit Beinisch went as far as to claim that it was part of a campaign to “weaken” and “delegitimize” the Supreme Court, the judiciary and Israeli democracy itself. According to her, the “desire [by the political branches] to influence the Court and its composition . . . is not a legitimate desire.”
By contrast, all U.S. federal judges are chosen by the political branches without any influence from the judiciary whatsoever. One of the most influential bodies in the approval of judges is the Senate Judicial Committee. Despite the political input into who the judges will be, the independence of the American has never been seriously doubted. At the same time, the U.S. Supreme Court is not only one of the world’s most admired judiciaries it is also one of the most cited by Israeli courts.
When MK Yariv Levin (Likud) introduced a proposal to have judges come before the Knesset Committee on the Constitution, Law and Justice for approval, Levin and the proposal were derided as harming Israeli democracy.
The reaction to the relatively moderate proposals of the previous Justice Minister, Daniel Friedmann, is also demonstrative.
Friedmann, one of Israel’s most highly respected jurists, had proposed, among other things, requiring “standing” to petition the High Court of Justice (currently organizations can file petitions without an actual plaintiff who has been injured, making the Court a magnet for political lawsuits), adding more government representatives to the judicial selection committee, and regulating the manner in which a law may be overturned.
Far from a radical makeover of the system, these proposals may have actually reinforced the Court’s legitimacy by putting the power of judicial review into law, making the Court a less political body, and increasing the democratic input into its composition.
Yet, Beinish, her predecessor Aharon Barak, and even his predecessor Meir Shamgar, as well as other former Supreme Court judges and public personalities launched an unprecedented attack on Friedmann, claiming that he was sending Israel back to the “third world,” “compromising” the rule of law in Israel, and was making “a direct assault on the democratic character of the State of Israel.”
By reacting in this manner to any type of change to the status quo, the Israeli Left aims to make it illegitimate to question or criticize the Court’s decisions, the limit of its power, the manner in which its members are selected and its role in Israeli political life.
Of course, it is likely that the Left’s exaggerated protests have nothing to do with protecting the rule of law or democracy, but the fact that the Supreme Court is their last bastion of power in a society that has rejected their self-destructive philosophy.
The recent argument from Haaretz editor Gideon Levy that the Court is not worth defending because it is not sufficiently left-wing, provides evidence that this is indeed the case.
Whatever the Left’s true motivation for its demonization of any judicial criticism or proposal for judicial reform, the American example, by contrast, demonstrates that public discussion and criticism of the judiciary is indeed perfectly legitimate and has an ultimately positive influence on democratic development.