Beware of the appointment process

Several years ago, I wrote an article in Justice magazine, published by the International Association of Jewish Lawyers and Jurists, on the need for American lawyers to pay attention to decisions of the Israeli Supreme Court regarding matters of status—particularly marriage and conversion. My point was that granting power to the Israeli Chief Rabbinate over such issues could affect American Jews, who might discover that their children are not recognized as Jewish if they made Aliyah and sought to marry in a religious ceremony in Israel. I noted, among other things, that hundreds of thousands of Russian Jews who fled Soviet oppression and immigrated to Israel under the Law of Return could not marry there without undergoing an Orthodox conversion because their mothers were not Jewish—and thus they were not halachically Jewish.

Now the shoe is on the other foot. Israelis are confronted by government efforts to change—and drastically politicize—the process of appointments to the Israeli Supreme Court. Proponents of this change cite the American example of judicial appointments by the president and confirmation by the Senate as precedent.

Israelis should take heed. Our system has become so distorted that it has all but destroyed the legitimacy of the American Supreme Court as a fair arbiter of constitutional values.

The rot started with Bush v. Gore in 2000. In that case, the U.S. Supreme Court invoked a never-before-used and never-since-applied equal protection test to ensure the election of Republican George Bush over Democrat Al Gore. As a result, the deeply conservative John Roberts became Chief Justice a few years later, and the even more conservative Samuel Alito secured confirmation as a member of the high court.

But far worse ensued. The entire process was subverted by Senator Mitch McConnell, then Republican Majority Leader of the U.S. Senate. When Justice Scalia died with a year to go in the term of Democratic President Barack Obama, McConnell refused to allow consideration of a Democratic replacement. He invoked a non-existent tradition of deferring to the next election. Professor Rivka Weill, an Israeli scholar who has taught at Yale and lectured to the deeply conservative Federalist Society, called this a revolutionary departure from our constitutional tradition. As a result, instead of a moderate who might have tipped the Court’s balance to even, another conservative—Neil Gorsuch—was appointed by President Trump and joined the Court in 2017. This move cemented a 5–4 conservative majority.

But the worst was yet to come. The liberal and Jewish icon Ruth Bader Ginsburg died in September 2020, just two months before the 2020 election. Trump was trailing in the polls. Nonetheless, McConnell insisted on ramming through the appointment of an anti-abortion justice, Amy Coney Barrett, in just two months—completely disregarding his prior refusal to post Obama’s nominee long before the 2016 election. As a result, the Court was now shaped by a distorted and constitutionally illegitimate 6–3 conservative majority.

The consequences of this manipulation soon followed. In Dobbs v. Jackson Women’s Health Organization, the Court formally obliterated the 50-year-old constitutional right to access to abortion. Its language in doing so—that such a right was not part of our tradition—equally undermined prior decisions allowing gay marriage and the right to contraception. The Court’s refusal to take that additional step so far is purely political, not judicial.

Now we are facing a full-blown disaster. That same Justice Barrett, speaking for the now almost monolithic 6–3 majority, ruled in June that the courts are powerless to nationally enjoin even the most blatant efforts by this administration to override our Constitution. The President issued an executive order restricting birthright citizenship, in violation of all precedents holding that this protection in our 14th Amendment applies even when a child is born to parents not legally present in the country—even if those parents have lived here for years. The Court relied on essentially irrelevant precedents regarding the scope of relief accorded by English courts in the 1700s. It ignored the fact that we now have a written Constitution with a Bill of Rights and a powerful 14th Amendment, enacted after our bloody Civil War. It even ignored its own “major questions” doctrine—used to void administrative actions that expand regulatory powers—even though the President’s action represented a gaping expansion of authority. As the dissent argued: if the President can unilaterally ignore the Constitution, why have one? To be sure, some members of the Court suggested alternative forms of relief, such as class action suits, but these all involve unnecessary procedural hurdles.

A similar logic underlies its decision mandating that parents be allowed to opt out of class texts featuring LGBTQ-themed characters, on the grounds that such themes contravene some parents’ views on sexual and gender identity. Again, the Court claimed such teaching was not part of traditional public-school instruction, and that parents could object to it being taught. So now, the test for education, according to the majority, is whether it exceeds the traditional “three Rs”: reading, writing, and arithmetic. What happens in the next case when parents who oppose evolution as inconsistent with the Bible—or with the Torah—ask for opt-outs? Or when secular parents object to any discussion of the Ten Commandments or the Bible as inconsistent with what they teach their children at home? The Court gave no answer. It left school boards across the country to deal with yet another divisive challenge on top of an already impossible workload.

All these dire consequences started with our court appointment process. Had we the process that Israel now has, confidence in our Court would not be plummeting as it is. Israelis, beware. You are better off than we are. Please keep it that way.