Analysis: End of era in U.S., Israeli supreme courts

Israeli liberals are equally concerned as their American partners following recent changes in the courts.

Supreme Court Justice Ruth Bader Ginsberg speaks about receiving the Genesis Prize, July 5 2018 (Daphna Krause)
In the US, many on the liberal side of things are concerned that the nomination of Brett Kavanaugh to succeed retiring US Supreme Court Justice Anthony Kennedy signals the death of liberalism on a range of issues.
Kennedy was known publicly as the court’s “swing vote,” one of the few justices who could swing between the court’s liberal and conservative wings depending on the issue at hand.
From abortion to gay rights to affirmative action, Kavanaugh is predicted by many to be far more consistently conservative than Kennedy was.
The liberal side is equally concerned in Israel following Justice Minister Ayelet Shaked’s appointment of a number of conservative Supreme Court justices.
Conservatives in both the US and Israel are as pleased, as liberals are concerned, and see opportunities to assert a greater conservative direction for both Supreme Courts.
While all of these changes are part of a trend of conservatives winning more control, ironically, another major piece of the ascendance of conservative power on the two courts, is most clearly expressed when viewing the legacy of liberal lion Justice Ruth Bader Ginsburg (RBG) who just visited Israel.
The reason is that there are few, if any, liberal lions of RBG’s stature left on either court.
On the Israeli Supreme Court, the balance between liberal and conservative among the 15 justices is close to a tie. But arguably there are no unapologetically liberal judges left – certainly not who have a broader influence.
Former chief justices Aharon Barak and Dorit Beinisch fit that category and they had many followers on the court, the last of whom to retire this past year may have been Salim Joubran.
Joubran voted on a liberal basis far more consistently than recently retired chief justice Miriam Naor, current chief justice Esther Hayut and their moderate-activist followers.
When Joubran voted on a liberal basis, he did not get to a liberal result phrased in moderate or procedural terms as Naor and Hayut often do, he went to the root of the issue and loudly proclaimed his liberal values.
This has been a role that RBG has filled on the US Supreme Court.
Even before she became a Supreme Court justice, last week’s screening of the documentary about her life, which she attended personally, explained how as an ACLU lawyer she won five out of six major Supreme Court decisions to push women’s rights forward.
If the court expected her as a lawyer to stick narrowly to the factual issues in dispute, she made each case about whether the country viewed women as equal in the broadest sense. She cited the court’s own recent opinions about black and white equality as if to ask: are you willing to make black men equal, but not white women? By the time she ascended to the court, she was already a national symbol for women’s equality and liberalism, which gave her outsize influence at time on the other justices.
Unlike Kavanaugh’s confirmation hearings, in which he is expected to get the job on a narrow party-line vote just above 51-49 – which has been similar with many recent judges – Ginsburg was confirmed by an astounding bipartisan 96-3 vote.
Staunch conservative Orrin Hatch voted to confirm her, despite saying he disagreed with a wide range of her views, on the basis that he could not deny her mastery of the law.
The film recounted how US Chief Justice William Rehnquist swore her into office in 1993 after having demeaned RBG’s arguments as a lawyer in the 1970s with wise cracks about whether they could just make her happy by putting famous women’s rights activist Susan B. Anthony’s face on an item of American currency along with former presidents.
In the case of Virginia Military Institute in 1996, RBG wrote a soaring majority opinion ordering the school to open its doors to women.
The film shows her doing a victory lap at VMI 20 years later as an honored speaker at graduation with decades of female alumni looking on in pride.
RBG is also known for thunderous dissents, which not only send shockwaves through the judicial establishment, but as the movie shows, has even led to laws later overturning the majority that disagreed with her. This happened with a 2009 law essentially overturning a 2007 court ruling against Lilly Ledbetter who had sued on an issue of equal pay.
During an interview in Jerusalem after the movie’s screening, RBG said that even though the Supreme Court’s interpretations of the 14th Amendment regarding equal protection of the law has led to achieving equality for women on most issues, the US should still pass the Equal Rights Amendment because “it belongs in the constitution.”
She told the audience, simply, that she wanted to be able to show her grandchildren and great-grandchildren explicit words where the US constitution granted women equality as in later-written constitutions, and that currently those words did not exist.
US Justice Sonia Sotomayor who recently read out a dramatic scolding of aspects of the Trump administration’s decisions which she said harmed American democracy is maybe the closest thing to a younger RBG.
But Sotomayor was not confirmed anywhere near 96-3 and does not have anything approaching RBG’s national stature.
Similarly, while Joubran was replaced by Israeli-Arab Justice George Kara, it is far from clear that Kara is a liberal lion and far more likely that he is a moderate-activist like the top justices who supported him.
In that sense, RBG’s career and persona as featured during her Israel tour last week paradoxically bring out a contrast. They show how different the likely more conservative US Supreme Court will be, since at age 85, no one expects her to be serving on it for that much longer.
Of course, the pendulum tends to swing back and forth over longer periods of time.
But the soon expected absence of liberal lions like RBG in the US, and the current absence of such figures on the Israeli Supreme Court, may be just as much of a factor in dictating stronger conservative control of those courts as Kavanaugh’s expected replacement of Anthony Kennedy and Shaked’s appointment of clearly conservative justices.