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Gary Epstein
And now for something completely different . . .

Democracy, Judges, and Their Discontents

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Before the war, Israeli society was mired in an internecine battle over its judiciary.

An ascendant right, having promised judicial reform if it were to prevail in the election, introduced legislation to restrain what it took to be a runaway, unfettered judiciary that had bestowed upon itself license to overturn duly enacted laws and legislate from the bench.

The left, having been accustomed to a self-perpetuating judiciary, protective of civil rights and serving as a bulwark against the oppression of a right-wing, religious minority, took to the streets.

The right saw it as a lawless insurrection against democracy.  The left saw it as a last stand against tyranny.

There being no Constitution and no Bill of Rights, both sides pointed to different sources of authority. The right, trumpeting democracy, relied upon the supremacy of the Knesset and its majority, as well as its victory in the elections. The left, also trumpeting democracy, looked to the authority of the Basic Law, as interpreted by the judiciary, the principles expressed in the Declaration of Independence, and the superior moral sovereignty of the judges.

As the battle lines hardened, the sides became more polarized. The identity of Israel as a Jewish state and a democracy was called into question. There were calls for reservists to refuse to report for duty, including even for critical air force training.  There were, remarkably, public appeals to American Jews and politicians to boycott Israeli government officials made by commentators who were ostensibly dedicated lovers of Zion. There was violence and the threat of possible civil war.

Until the war interrupted the insanity, there seemed to be no escape from the descent into hatred and savagery that threatened the fabric of Israeli society.  Reasonable people advancing reasonable compromises were rejected by both sides.

It was ugly and terrifying.

Then the war exploded in our faces and Israeli society revealed its amazing depth, strength, and beauty. The reservists stepped up to save the country. The people united (for the moment) against a common enemy and in a joint effort coalesced into a supportive and cohesive community.

It was beautiful and comforting.

It won’t last, because there are unresolved issues and raw nerves that have been exposed. We will have to figure out a way to deal with the seemingly intractable controversies: the judicial system, the draft exemption/evasion of the charedim, the religious/secular divide, and a host of others.

May we have the wisdom, forbearance, patience, and fraternal love to deal with them, and may we deal with one another with mutual respect.

That was by way of introduction.

The debate over the American election has revolved about the comparative inadequacy of the candidates. Donald Trump is reviled as a liar, rapist, fascist, and Nazi. Kamala Harris is scorned as an unqualified, dishonest, scatterbrained, unprincipled, empty pants suit (in Gerard Baker’s memorable phrase).

How can we possibly go wrong?

There are also a multiplicity of serious issues: abortion, immigration, fracking, tariffs, inflation, the environment, foreign policy.

But the issue that tore apart Israeli society is very much at the center of the US election, even if it is barely discussed.  If Kamala Harris wins and the Democrats retain control of the Senate, the Supreme Court of the United States is likely to be profoundly and irrevocably diminished.  Remarkably, the academics, intellectuals, and elitists who were terrified at the potential changes to the Israeli judicial system seem to care not at all about the evisceration of the US Supreme Court.

The Democrats are understandably unhappy with the direction and some decisions of the Supreme Court, which, for the first time in decades, has a consistent conservative majority. Decisions against the imperial presidency, the primacy of administrative agencies, and Roe v. Wade have prompted Democrats to label the court illegitimate, in ways reminiscent of the Israeli right wing assault on the High Court (but, obviously, in the opposite direction).

Kamala Harris and Chuck Schumer have both said that, given the opportunity,  they would eliminate the filibuster in matters involving the Supreme Court, which would render the Court susceptible to the whims of the slimmest majority (and presiding Vice-President) in the Senate.  Shades of the Knesset.

If that happens, Betsy bar the door!  Senators Ron Wyden, Sheldon Whitehouse, and others have threatened to expand the Court to 15 members and approve six new liberal justices, to subject the ethics of Justices to congressional and lower court review (the Constitution be damned), impose term limits, and make it more difficult for the Court to declare legislation unconstitutional.  Essentially, the Supreme Court would no longer be a co-equal branch of government, but would be subordinated to the legislative branch.

Sound familiar?

As a retired attorney who studied Constitutional Law with Archibald Cox (in certain circles, that was viewed as equivalent to studying Bible with Moses) and learned to respect the institution even while remaining painfully aware of its occasionally horrendous decisions, I view with horror the Democrats’ promise to disembowel  the court. Dred Scott, Plessy v. Ferguson, Lochner v. NY, Korematsu–all horrible decisions–were overturned in due course, without dynamiting the Court and rendering it inconsequential. And if that happens when the Democrats hold the White House and the Senate, would it be difficult to foresee what would happen if the Republicans ever were to retake control?

What goes around comes around.

What amazes me, though I should probably know better, is the silence on the left.  Is judicial independence and primacy important only when the judges in question are “your” judges?  Do professors of law, other academics and intellectuals, and progressive legislators only respect the principles of judicial review when the judges’ rulings are consistent with their own ideologies?

Where is the concern about the tyranny of the majority?

Was all that noise just politics?  Were all those demonstrations just theater?

How sad.

About the Author
Gary Epstein is a retired teacher and lawyer residing in Modi'in, Israel. He was formerly the Head of the Global Corporate and Securities Department of Greenberg Traurig, a global law firm with an office in Tel Aviv, which he founded and of which he was the first Managing Partner. He and his wife Ahuva are blessed with18 grandchildren, ka"h, all of whom he believes are well above average. He currently does nothing. He believes he does it well.