Analysis: Judicial activism in the US and Israel - Two approaches

Shaked wants to complete the transformation and move the Supreme Court toward a majority or almost-majority conservative leaning.

November 8, 2016 23:25
3 minute read.
Ayelet Shaked

Ayelet Shaked. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)


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The debate over judicial activism has been hot in both the US and Israel for some time now.

The discussion is at its most relevant right now, as the world waits for results of elections in the United States.

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There are ways to date origins of the issue much earlier, but it is safe to say that demand for the US and Israeli Supreme Courts to stay out of major policy disputes went full throttle around 1973 in the US and in 2006 in Israel.

In the US, 1973 was the year of Roe v. Wade, the decision that legalized first-trimester abortion.

In Israel, 2006 brought the retirement of Aharon Barak as president of the Supreme Court.

Barak was viewed alternately as the father of Israel’s informal constitution (by fans) and of judicial activism (by detractors).

After Roe v. Wade, abortion opponents in the US formed a massive movement that wanted a constitutional amendment to override the decision and ban abortion.

When it became apparent that those efforts would not succeed, activists developed a longer-term game plan. The strategy was based on systematically attacking liberal justices and educating a new generation of lawyers as strict constructionists dedicated to the cause who would stay out of most other major policy disputes.

The idea was, if the ruling could not be beaten by constitutional amendment, the court should be changed from the inside until it reversed itself – which has happened regarding other rulings in the past.

Now, judicial activism in the US is more politicized. Democrats tend to view it positively, as judges correcting injustices in the law, while Republicans mostly see it as a failure to honor the “original intent” of the US constitution.

The debate took longer to develop in Israel, largely because the judiciary has been a far weaker branch, with no formal constitution from which to draw power. That changed with Barak’s appointment, even though some of his predecessors were more assertive than those who came before them.

Barak used the Knesset Basic Laws in the 1990s to create an informal constitution and greatly expanded the areas where the court would declare laws unconstitutional.

No counterattack could hold water while he was in office, either due to his hold on power or his singular brilliance as an interlocutor, depending which side you ask.

His successor, Dorit Beinisch, tried to continue on his path and received all of the resentment welled up over Knesset laws invalidated by the court.

In some ways, those who oppose judicial activism in Israel have more of an upper hand than in the US.

The Zionist Union and other parties on the Left are largely supportive of judicial activism, but they are not as full-throated as their US counterparts in the Democratic Party.

Middle-of-the-road, religious and other parties here are generally anti-judicial activism. As a result, judicial activists take more heat in Israel’s political arena than in the US.

But there may be another reason for the difference: In the US, the anti-judicial activists won. Conservatives took over the US Supreme Court and have ruled it for decades.

The extraordinary situation in which the US Congress has refused to replace deceased justice Antonin Scalia, is a desperate move to maintain that dominance by waiting out the last 11 months in office of US President Barack Obama, who would have moved the court to a majority liberal court for the first time in decades.

This is where the current fight between Justice Minister Ayelet Shaked and Supreme Court Justice Miriam Naor comes into play.

Those in Israel who oppose judicial activism have had some real success, getting Asher Grunis, a clear conservative, and Naor, at most a restrained activist, to run the court for the almost the last five years.

But activists are still the majority, as the court remains made up mostly of Barak and Beinisch appointees.

Shaked wants to complete the transformation and move the Supreme Court toward a majority or almost-majority conservative leaning.

While US judges have taken some heat, they have had it much easier than in Israel, because they played for the same team as the critics of activism.

If Shaked succeeds, criticism of the court may quickly dampen to US levels.

Then again, Shaked may only partially succeed.

If Hilary Clinton is elected president, the US Supreme Court will shift to a majority liberal body, and no further delaying tactics will be possible.

If that happens, criticism of the US Supreme Court may suddenly start sounding more like it does in Israel

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