The nationwide furor over the Israeli right’s attempt to neuter the country’s independent judiciary has cooled, at least temporarily, because the government backed down and agreed to delay the “judicial reforms.” However, the United States should learn from the Israeli debacle.
The Israeli right detests what it terms leftist judicial obstruction of its agenda. So, in the name of “democracy,” the Israeli government tried to politicize the selection of judges, limit the Israeli Supreme Court’s ability to review laws passed by parliament and enhance the ability of that legislative body to overrule Supreme Court rulings it did not like. Because judges are selected by other judges, this probably technically enhances democracy. However, more democracy is not always a good thing.
Contrary to popular belief, the framers of the U.S. Constitution realized that the government had to ultimately rest on popular support but also that volatile popular passions had to be cooled and individual rights had to be protected from the tyranny of the majority by a written Constitution, a Bill of Rights, and a system of checks and balances. These checks and balances included a federal government with three branches, including a mostly independent judiciary; a two-chamber legislature in which the Senate was intended to be the cooling saucer for a House of Representatives that tended to reflect popular sentiments of the moment; and a federal governmental structure that featured strong countervailing state centers of power, which even included the preservation of regulated state militias to counter the national army through a Second Amendment on firearms.
In fact, at the time of the American founding, “democracy” was not seen as a favorable word. And although the United States has become a more democratic society over the 235 years since the Constitution was ratified, the federal republic of the framers still endures.
Israel, with its more democratic parliamentary system, has few of the safeguards of the American republic. It has no written constitution, and its parliamentary system combines the legislative and executive branches. Also, because it is not a federal republic, regional governments cannot counter potential central government overreach. Thus, the independent judiciary is one of the few checks on possible tyranny by a slim majority in parliament (the current state of affairs). The only other checks on the government are a free media and massive street protests from a vociferous minority to stymie (at least temporarily) the attempt to bring the judiciary under the control of parliament.
In addition to touting the democratic nature of the “judicial reforms,” Israeli advocates point to the political selection of judges in the United States. However, in addition to all the other checks and balances in the American system, the political appointment of federal judges requires both executive selection and congressional approval — a two-branch check that a reformed Israeli judiciary will not possess. Although Congress and the executive branch can restrict the purview of the U.S. courts and alter their size, they cannot countermand federal and Supreme Court rulings.
Yet, the U.S. judicial system is not immune to meddling, which is now occurring, even as the Israel crisis has unfolded. Even before the Manhattan district attorney’s office formally indicted former president Donald Trump, some members of Congress were harassing that office for testimony and documents in this criminal case. Also, in Georgia, the legislature and governor recently passed and signed, respectively, a new law designed to intimidate the Fulton County district attorney — who happens to be investigating Trump’s alleged attempt illegally to overturn Georgia’s certified results in the 2020 presidential election — by making it easier for the state government to fire local prosecutors whose actions it doesn’t like.
Although the United States does have a republic’s checks and balances that the Israeli democracy doesn’t possess, federal or state government attempts to meddle with the independent U.S. judicial system still significantly corrode the American political system. The independent judicial system, staffed with Republican and Democratic judges, was a major bulwark against Trump’s attempt to overthrow the free and fair election of 2020, thereby remaining unconstitutionally in power. In 2024 and beyond, if the independent judicial system has been eroded by Trump and his acolytes, we may experience similar political turmoil to which Israel has recently been exposed.