‘Conservative activism’: The US court and Israel’s judicial reform

The proponents of Israel’s “Judicial Reform” program tend to look at the US for inspiration. However, a closer look at the latest rulings of America’s Supreme Court shows a tendency that Israel’s right-wing would not be very happy with. Moreover, the US selection system of its Supreme Court Justices (through political supremacy) won’t necessarily lead to “balance,” as Israel’s supporters claim.

As is well known, the US Senate selects a new Justice upon the President’s nomination. This is clearly a “political” process, in line with (albeit not exactly the same as) the thrust of Israel’s right-wing reform proposal. True, the Senate’s vote does not follow strict party lines – although it is becoming more so in the past decade or two. However, this is clearly a “political” selection.

Even worse, it is based on the vagaries of electoral politics and the Angel of Death. Only when a Justice dies can the Senate convene to choose a new one (very rarely do they voluntarily retire; one of the greatest of all justices – Oliver Wendell Holmes – remained in his judicial seat until he died at age 91). However, although Congress tends to swing back and forth between Democratic and Republican control, judicial deaths don’t necessarily follow that pattern, so that often it is one party that gets to choose justices for a long time – seriously skewing its “ideological personality”.

The present setup is an example of this: over the past decade or so, “ideological balance” has not been the outcome. The Court today is split 6-3 between its majority conservative members and its minority liberal ones. Moreover, if Israel’s Judicial Reform proponents think that the term “Conservative Justice” means that the judge will not be “activist”, then they are sorely mistaken. Overturning 50 years of settled law in Roe vs. Wade (the court’s 1970s pro-abortion ruling) can hardly be considered “judicial self-restraint”. The opposite: it is judicial activism par excellence in promoting an ideologically conservative program. In other words, judicial restraint and conservative policy are not necessarily identical; the former can even be antithetical to the latter i.e., “Conservative Activism” is not an oxymoron!

Last week, America’s Supreme Court provided another example of its activism in overriding a decision made by elected representatives performing their Constitutional duty! Every ten years, based on the once-a-decade census, each state has to redraw the lines of its congressional districts. The reason is simple. Some states lose population (internal out-migration) and others gain population (high birth rate, foreign immigration etc.). As a result, some states are allotted a few more seats in the House of Representatives, and others a few less (on the other hand, Senate representation is set forever at two senators for each state). Thus, to accommodate a different number of elected, lower-house representatives, the district lines have to be redrawn.

This is where the infamous term “gerrymandering” enters the picture. Each state’s legislature has the authority to draw the lines as it sees fit, except…: “By a 5-to-4 vote, a coalition of conservative and liberal justices… said that in Alabama, a state where there are seven congressional seats and one in four voters is black, the Republican-dominated state legislature had denied African American voters a reasonable chance to elect a second representative of their choice” (https://www.npr.org/2023/06/08/1181002182/supreme-court-voting-rights). The legislators had drawn the districts specifically to split the black voters among several districts in order to dilute their voting influence. Two conservative justices in the Supreme Court stepped in and negated the politician’s decision; how does that sound to Israel’s Judicial Reform adherents?

In the past, I have already explained on these pages that “conservatism stands for incremental reform, fully understanding that radical – not to mention revolutionary – change usually ends disastrously” (https://blogs.timesofisrael.com/laissez-faire-conservatism-in-israel-judaism-says-no/). No one in Israel claims that some reform is not a good thing for any governmental institution; the question is how to go about it: gradually, testing each new step before moving on to the next mini-reform attempt, or as they say in Israel: “zbang ve’gamarnu” (blow it all up and quickly finish the job).

Israel already went through one such “explode the system” almost 50 years ago when the Likud came to power and immediately set on switching the entire Israeli economy from quasi-Socialist to hyper-Capitalist. What ensued was catastrophic: bank system collapse, steep stock market decline, and rampant hyperinflation (400% annually – that’s not a misprint!). Today’s Likud should have learned its lesson from that fiasco, but it has taken a mass protest uprising to remind all concerned that while democracy “allows” for massive systemic change, it is not the institutionally feasible or political reasonable way to get things done.