Sherwin Pomerantz

When the Courts Lose Their Neutrality

Perhaps the greatest threat to democracy is the erosion of trust in the legal system as a result of efforts by the political leadership to undermine that trust and, thereby, delegitimize the legal system itself.  After all, if the courts themselves cannot be trusted to do their job without political interference or if they choose not to do the work which has been entrusted to them, then the very foundations of democracy will crumble.

During the past week two incidents, one in Israel and one in the U.S. should raise red flags for those of us living in either country.

In the U.S. the Supreme Court, in a 5-4 decision, ruled that federal courts are powerless to hear challenges to partisan gerrymandering, the practice in which the party that controls the state legislature draws voting maps to help elect its candidates.  The drafters of the Constitution, Chief Justice John G. Roberts Jr. wrote for the majority, understood that politics would play a role in drawing election districts when they gave the task to state legislatures. Judges, the chief justice said, are not entitled to second-guess lawmakers’ judgments.  “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” the chief justice wrote

Partisan gerrymandering is almost as old as the nation, and both parties have used it. But in recent years, as Republicans captured state legislatures around the country, they have been the primary beneficiaries. Aided by sophisticated software, they have drawn oddly shaped voting districts to favor their party’s candidates. Should Democrats capture state legislatures in the next election, the ruling would allow them to employ the same tactics.

In an impassioned dissent delivered from the bench, Justice Elena Kagan said American democracy will suffer thanks to the court’s ruling in the two consolidated cases decided Thursday.   “The practices challenged in these cases imperil our system of government,” she said. “Part of the court’s role in that system is to defend its foundations. None is more important than free and fair elections.”

In her dissent, Justice Kagan said the court had abdicated one of its most crucial responsibilities. “The only way to understand the majority’s opinion,” she wrote, “is as follows: In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights — in the face of escalating partisan manipulation whose compatibility with this nation’s values and law no one defends — the majority declines to provide any remedy. For the first time in this nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.”

Bottom line?  An American citizen who feels his or her vote has been nullified by partisan gerrymandering no longer has any recourse via the courts.

In Israel, Attorney General Avichai Mandelblit on Sunday warned against efforts to “delegitimize” Israel’s legal system, which he said could cause a “real erosion” of the legal principles on which the country was founded.

“This feeling comes from a number of simultaneous processes, which have in common the attempt to significantly weaken the institutions whose role is to guard and defend the legal security,” he said, decrying efforts to “delegitimize” the legal system.

Mandelblit said those efforts were not aimed at effecting a specific change to how the legal system operates or to alter the relations between the branches of government, but rather represented a “real erosion” of the legal principles that have served the country since its founding.

“The processes about which I’m talking — of personal and systemic delegitimization, of initiatives to weaken the legal system — have become so conspicuous and tangible that many in the Israeli public understood that the central element of the country’s national resilience may be significantly weakened,” he said.

Mandelblit added that while criticism of the legal system was legitimate, he would resist any attempts to undermine its standing or the rule of law.

The attorney general did not spell out what these attempts at delegitimization were, but his comments came as allies of Prime Minister Benjamin Netanyahu’s have been pushing for legislation that would allow the Knesset to overrule decisions of the Supreme Court.

The passage of such legislation would mark what has been called the greatest constitutional change in Israeli history, with vast potential impact on the checks and balances at the heart of Israeli democracy, denying the courts the capacity to protect Israeli minorities and uphold core human rights.

The danger is clear.  In a democracy once the courts lose their neutrality and become complicit in responding to the wishes of the head of state (as in Israel as described above) or a party in power (as in the U.S. case cited) rather than standing on the established principles of democratic societies, the system itself becomes suspect.  And, of course, if the population loses trust in the legal system, the very fabric of society begins to deteriorate and, ultimately, disintegrate into fascism and totalitarianism

Frederick Douglass, a former slave who became head of the abolitionist movement in American in the 1800s, said:  “Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.”  A lesson needing to be learned yet again.

About the Author
Sherwin Pomerantz is a native New Yorker, who lived and worked in Chicago for 20 years before coming to Israel in 1984. An industrial engineer with advanced degrees in mechanical engineering and business, he is President of Atid EDI Ltd., a 32 year old Jerusalem-based economic development consulting firm which, among other things, represents the regional trade and investment interests of a number of US states, regional entities and Invest Hong Kong. A past national president of the Association of Americans & Canadians in Israel, he is also Former Chairperson of the Board of the Pardes Institute of Jewish Studies and a Board Member of the Israel-America Chamber of Commerce. His articles have appeared in various publications in Israel and the US.