Analysis: A tipping point as Israeli, US supreme courts shift rightward

In a matter of a month, the scales will likely have tipped heavily toward conservatives.

March 21, 2017 08:48
3 minute read.

A protester holds a copy of the bible outside of the US Supreme Court building in Washington June 15, 2015. The US Supreme Court on Monday rejected a bid by the state of North Carolina to revive its law requiring women seeking an abortion to have an ultrasound of the fetus performed and described to. (photo credit: REUTERS)

For a little while there, liberals in Israel and the US could worry less about their supreme courts shifting rightward and conservatives remained angry or anxious about the future.

But in a matter of a month, the scales will likely have tipped in both countries heavily toward conservatives.

On February 22, Israel’s Judicial Selection Committee appointed four new Supreme Court justices, who will take office in several stages over the course of 2017, but will then serve together for decades.

Three of the four justices, David Mintz, Yosef Elron and Yael Vilner, are thought to either be conservative or at least not who the activist wing of the Supreme Court wanted.
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More significantly, they will replace Miriam Naor, Zvi Zilbertal and Elyakim Rubinstein.

While none of these justices was as activist as Aharon Barak or Dorit Beinisch, they are all still firmly viewed as moderate activists.

Collectively, and along with the expected 2018 retirements of Uri Shoham and Yoram Danziger, these appointments could shift the court into the control of conservatives for the first time in decades and the first time since Barak’s constitutional revolution.

On Monday, the US Senate Judicial Committee will start its hearings for Neil Gorsuch and he is likely to be confirmed due to Republican control of the Senate.

Gorsuch will replace deceased justice Antonin Scalia, whose seat has been vacant for more than a year.

His appointment to the court will restore a 5-4 conservative majority on the US’s highest court after a 4-4 tie under a Democratic president favored liberals for the last year.

Most importantly in the grand game of control over the court, Gorsuch’s appointment permanently erases the nomination of Merrick Garland, who former US president Barack Obama nominated, but who was never granted a hearing by the Republican Senate.

If Scalia’s death and Garland’s nomination were a chance for liberals to regain a 5-4 control of the US Supreme Court for the first time in decades, Gorsuch’s anticipated appointment ends that possibility.

Also, during the full year when the court was stuck in a tie, that meant that liberals usually won as more constitutional lawsuits are filed to try to overturn the policies of a sitting president, which at the time was a Democrat.

Before the Israeli Supreme Court, currently or in the near future, will be cases about the Settlements Regulations Law, using enhanced interrogation on detainees, administrative detention, house demolitions, allegations of discrimination against minorities, allegations of overreach by ministries and alleged war crimes from the 2014 Gaza war.

The current Israeli Supreme Court will almost certainly strike down the settlements law, continue limits on enhanced interrogation, suspend some administrative detentions for hunger strikers, reject some house demolitions, roll back some laws giving ministries new powers and limiting minority rights and may even order the state to criminally investigate Gaza war incidents it closed, as occurred at least in one similar case in December 2014.

But the future potentially conservative dominated Supreme Court could approve a future settlements law, give the state new freedom in enhanced interrogation, administrative detention, house demolitions, ministry powers and limits on minority rights and close the door on war crimes cases.

Likewise, Gorsuch, while in the US Justice Department defended the Bush administration’s post-9/11 rougher treatment of detainees and indefinite detention in Guantanamo Bay.

Gorsuch even suggested that judges ruling on Guantanamo constitutional law issues should visit the prison to gain a greater appreciation for the government’s respect of detainee rights.

While there was no Muslim ban for Gorsuch to rule on as an appeals court judge, it is likely that he would confirm some form of a Muslim ban in deferring to the US president on national security issues.

Trump’s two Muslim-ban executive orders have not yet reached the US Supreme Court. One reason may be that the Trump administration may not want to run into the 4-4 tie, which would be a loss for it after lower courts have struck down two executive orders.

But the same order might be confirmed on an appeal to the US Supreme Court once Gorsuch is presumably confirmed. The same could go for a number of new expected Trump anti-regulation policies, with Gorsuch issuing a range of business friendly rulings in the past eve in the face of human suffering from poorer or sick employees.

In both countries, politicians and activists have a way of thrusting the Supreme Court in the middle of massive political and constitutional issues.

The current and expected appointments could shift decisions rightward on a number of those fateful issues for years to come.

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