Will the US judicial right-wing swerve influence Israel’s Supreme Court?

Although there is no parallel timeline, there have been cases where judicial trends in the US have had an impact in Israel too.

By YONAH JEREMY BOB
THE US Supreme Court (photo credit: REUTERS)
THE US Supreme Court
(photo credit: REUTERS)
With the appointment of Amy Coney Barrett swinging the US Supreme Court to a clear 6-3 right-leaning direction, one question is: will this move Israel’s Supreme Court, thought of as more liberal, in that direction as well?
Although there is no parallel timeline, there have been many cases where judicial trends in the US eventually have an impact in Israel, too – but often with a lag of about a decade, so the same could be true of the new Coney Barrett era.
The first case of this was with chief justice Shimon Agranat, who was president of the Supreme Court between 1965 and 1976. He grew up in the US and trained as a lawyer at the University of Chicago before moving to Israel.
Agranat was highly influenced by aspects of early liberal American jurisprudence and started to use Israel’s declaration of independence as a quasi-constitution to broaden judicial review even before the passing of Basic Laws in the 1990s.
The big move toward liberal jurisprudence in the US came with the reign of chief justice Earl Warren from 1953 to 1969 and culminating with some major rulings in the 1970s.
A lighter version of liberalism continued during the term of chief justice Warren Burger from 1969 to 1986, although Burger himself was not particularly liberal.
These strongly liberal trends started to emerge in Israel during the era of chief justice Meir Shamgar from 1983 to 1995 and culminated with his successor chief justice Aharon Barak’s judicial revolution from 1995 to 2006.
Barak spent time studying and teaching at Harvard and Yale law schools and made a point of citing US liberal judicial decisions as precedent and as a basis for expanding judicial review powers in Israel.
All of this is tells how liberal American legal trends influenced the Israeli court in that direction.
But there has been a counterpoint.
Both the 1973 US Supreme Court Roe vs Wade decision legalizing first trimester abortion, and successive rejections of Republican candidates for the Supreme Court, culminating in a major battle in 1987 over the rejection of Robert Bork, led to massive backlash.
If liberal activists realized from the 1950s onward that the courts could be used to achieve greater equality for African-Americans, women and other sectors, and more liberal jurisprudence regarding individual liberties, conservatives started to realize from the 1970s that control of the courts could also limit aspects of abortion, limit gun control and generally protect more conservative American values.
By 1989, conservatives had taken control of the US Supreme Court for the first time in decades, and conservative academics had started to counter “judicial activism” – the courts’ encroachment on the other branches of government.
In 2007, Daniel Friedmann, Israel’s justice minister, was the first major figure to try to swing the legal establishment and the judiciary toward the conservative end of the pendulum, employing the same attack on “judicial activism” that had helped conservatives gain the upper hand in the US.
Since then, conservatives’ progress has been uneven, but Prime Minister Benjamin Netanyahu succeeded in passing a special law to enable conservative Asher Grunis to become chief justice from 2012 to 2015.
Further, justice minister Ayelet Shaked appointed at least four out of six conservative justices during her tenure, including Alex Stein, who caught her attention as a well-known critic of judicial activism in US academia.
All of this has brought Israel’s Supreme Court to a place where it is not yet majority conservative, but where it is far less liberal than it was under Barak.
With Barrett’s ascent cementing conservative control of the US Supreme Court for a generation (unless the next US president and Congress radically change the court by packing it with additional new justices), there is a strong probability that the pervading conservative jurisprudence in the US will nudge Israel’s Supreme Court further to the Right.
This is all the more true because, at present, no major political party professes broad liberal judicial values in the way the Labor Party did in the past, and centrist parties seem to want only to avoid political-judicial friction relating to Netanyahu’s trial, but they support Palestinian house demolitions and other activities previously criticized by the Left.
Between now and October 2023, four of the five justices who will retire are from the liberal wing of the court, and the battle for dominance will heat up.


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