The Judicial Crisis: A Warning for All Democracies

For over six months, Israelis have been protesting what many see as an erosion of democracy within the country. In particular, Israelis have been protesting against Prime Minister Benjamin Netanyahu’s “judicial reform” which aims to challenge the nation’s balance of power by weakening the Supreme Court. While much of the media attention around the protests and the reform has been around its long term effects on Israeli society and how it affects Israel’s status as a democracy– albeit a flawed one- it is important to consider how the judicial reform teaches us the danger of politicizing courts and how the events in Israel teach a painful lesson to other countries. 

Netanyahu’s “judicial reform” is one of a series of controversial initiatives from his controversial governing coalition. A major reason that the current Israeli government – by far the furthest right in Israel’s history – is pushing through this reform is that they see the court system as being biased against them. There is merit to this claim due to the process by which judges are chosen. The Israeli judiciary does lean heavily to the left of the political spectrum. However, the solution is not to muzzle or get rid of the court, as this is deeply dangerous. What is needed is a way for Israel to maintain a strong, independent judiciary that is reliably impartial, to uphold fundamental rights, and for Israelis to feel it fairly represents them and their interests. Its Supreme Court must match the composition of the country it represents. 

To be clear, the “judicial reform” is a bad idea. Anyone who cares about Israel worries about what this overhaul will do for Israeli democracy and for human rights in Israel and the West Bank. Considering who is proposing and pushing through this “reform”, it is deeply troubling what they will do without the courts standing in their way.  

A reasonable part of the proposal is reforming the nomination process to match voter preferences, so that judges reflect the public’s values. However, for extremists in the coalition, that was never their goal for “judicial reform.” The “judicial reform” is the first step in Israel’s current far-right governing coalition’s plan to remake Israel in their own image. Their interest is in weakening the courts. Israel’s courts draw legal lines that cannot be crossed, which the coalition wishes to cross anyway. 

A key part of the “reform” is to limit the Supreme Court’s ability to overturn laws it considers “unreasonable” and make constitutional review more difficult due to alleged abuses of these powers. They also wish to change how Supreme Court justices are appointed and give Israel’s parliament, the Knesset, the ability to “override” with a simple majority. 

More ideological balance on Israel’s Supreme Court would likely not prevent extremists from attempting to muzzle it. Indeed, evidence is to the contrary, as they have turned down several reasonable proposals for compromise that aim to address such legitimate gripes. However, the reason why the coalition was able to propose this “judicial reform” is many Israelis are angry at not being adequately represented by the court system. The perception of court bias is the root cause that made this “judicial reform” politically palatable in the first place. 

Compare this with the US Supreme Court, which has come under attack for becoming beholden and biased to the right wing as a direct result of the political maneuvering and utter hypocrisy that was necessary for Republicans to appoint the justices necessary to overturn Roe v. Wade. While Republicans got the politically-biased court they wanted and overturned Roe v. Wade, the price was loss of public confidence and trust in the court’s impartiality. US Supreme Court decisions are now perceived as being no longer based on long-standing principles, rather than politics and right-wing judicial activism. 

Proposals of some progressive Democrats to “pack the court” are concerning, as they would ultimately further politicize the courts. Many see Amy Coney Barrett as an illegitimate political nominee, only there due to Senator McConnell’s mathematical maneuvering. How do those who support packing the court think their nominees will be viewed by the rest of America? What is clear is that none of this should have happened in either Israel or the US, and that politicizing any Supreme Court is an incredibly dangerous outcome. 

The fundamental reason that the courts in Israel and the US are not trusted is because they are seen as ideologues striking down any law they dislike, rather than neutral arbiters of justice whose interest is accurately and evenly enforcing and interpreting the law with judicial temperament. What is needed in both Israel and the US is more of an effort to ensure the court’s composition matches that of the people they govern. 

The problem is not that judges have political opinions because judges are people and this is unavoidable. However, we should keep this in mind and ensure that the biases are balanced and that courts as a whole represent diverse perspectives. Not every person will like every justice on their country’s Supreme Court, but people need to feel there are justices on the court who see the world the way they do and feel that they are adequately represented. 

A strong and independent judiciary is a necessary ingredient for any democracy. With increasing political polarization, respect for the judiciary is an important tool for keeping an ideologically divergent nation together. Manipulating the courts threatens this. We need to rethink how we select judges and put special emphasis on creating a court that the entire nation can support and trust. Otherwise, it is only a matter of time before more countries’ governments start doing “reforms” like the extremists in Israel.