So who has the superior system of constitutional law, the US or Israel? In Israel, there are fears that a nationalist religious government could take over the Court by skewing the committee that makes appointments or by passing an override law which would allow a Knesset majority to overrule Supreme Court decisions affecting civil rights. Further, Israel’s constitutional jurisprudence is a recent innovation. Israel had no formal system of constitutional law until the United Mizrachi Bank decision in the 1990s. At that point, the Israeli Court first held that the Basic Laws, particularly the ‘Basic Law: Human Freedom and Dignity’, were a charter of freedom that could be used to invalidate inconsistent acts of the Knesset. So the Court could hold that, for instance, the law exempting religious students from the draft violated the rights of others. This relatively recent and potentially fragile development in Israel has engendered intense political opposition that could result in the Knesset negating the Court.
In contrast, the US Court asserted the authority to engage in Judicial review long ago, in 1803. The U.S. Constitution is explicit that it contains a charter of rights, and that it is to be the Supreme Law of the Land, binding on all officials at all levels of government. The U.S. Court is not beset by tension
with separate court systems based on religious law. However, the appointment process is completely in political hands. The President nominates, the Senate confirms, or not. Moreover, the key phrases in the Constitution like ‘equal protection’, ‘due process’, ‘privileges and immunities’, do not explain themselves very clearly. Lawyers and justices can disagree dramatically over what they mean and to whom they should apply. Witness, legal racial segregation, largely accepted when the 14th Amendment was ratified and approved by the Court in 1896, but finally declared unconstitutional in 1954. Or the current dispute over the scope of the right to personal autonomy enforced in Roe v. Wade, the abortion decision.
So who is on the Court will determine the shape of the Constitution. Random circumstances, like the recent death of Ruth Bader Ginsburg, or the illness of the husband of Sandra Day O’Connor, can produce changes in personnel that cause the Court to lurch in dramatically different directions. Plus, while the Supreme Court does not have to share power with Rabbinic or Sharia courts, it does have to share authority with state governments and state judges. The lines of federalism can be as difficult to negotiate as the competing claims of religious and secular law. The dramatic 5-4 split curtailing the Voting Rights Act’s enforcement provisions against states, exemplified the fault line over federalism. In addition, certain types of cases may be held to be non-reviewable, or justiciable, causing additional confusion. The recent bitter 5-4 split over not the legality of, but the reviewability of legislative gerrymandering, perfectly illustrates this additional source of confusion.
Bottom line, the longer U.S. history has not produced greater legal stability. Rather, the vagaries of political appointments make our 200-year-old system of judicial review more uncertain in some ways than Israel’s 25-year-old system where the appointments committee provides at least some buffer between politics and appointments. True, the threat of a religious or national reaction in the form of an overriding law in Israel remains. But at least that has played out in the Israeli elections, which resulted in a coalition agreement that protects the Court for the time being.
In contrast, raw, unbridled political power is now allowing the U.S. Supreme Court to be skewed in a rightward direction. We have witnessed the spectacle of a wilful Senate defying constitutional norms by refusing to do its constitutional duty of advice and consent when President Obama nominated an esteemed moderate, Merrick Garland. That same Senate majority is rushing through a highly-conservative nominee as I write, in the face of an election that may result in loss of Republican control over the Presidency and the Senate. To the extent that American constitutional traditions ameliorated such potential constitutional malpractice, those restraints have vanished. Americans could envy the Israeli appointments committee.
So, maybe the U.S. should learn from Israel? Or better, should both places remember that protection of rights is not undemocratic? Rather, as President Judge Barak wrote in United Mizrachi Bank, it is not the instant majority, but rather deeper tradition set forth in a constitution which demands respect if democracy is to survive. This respect goes for the appointment process, as well as respect for decisions. Time will tell which system results in more fidelity to law, writ large.