The paradox of limiting judicial power

The Israeli Supreme Court has struck down the measures limiting judicial power that were passed by the Knesset last year:

In a momentous ruling that could ignite a constitutional crisis, Israel’s Supreme Court on Monday struck down a law passed by Prime Minister Benjamin Netanyahu’s right-wing government that was meant to limit the court’s own powers, by a majority of eight judges to seven.

The decision is likely to rekindle the grave domestic situation that began a year ago over the government’s judicial overhaul plan — which sparked mass protests that brought the country to a near standstill at times — even as Israel is at war in Gaza.

The court, sitting with a full panel of all 15 of its justices for the first time in its history, rejected a law passed by Parliament in July. The law barred judges from using a particular legal standard to overrule decisions made by government ministers.

The court’s decision heralds a potential showdown between the top judicial authority and the ruling coalition, and could fundamentally reshape Israeli democracy, pitting the power of the government against that of the court.

In a country that has one house of Parliament, no formal written constitution and a largely ceremonial president, many defenders of Israel’s liberal democracy view the Supreme Court as the only bulwark against government power.

It’s tempting to cheer on any L taken by an extremist reactionary government that is currently carpet-bombing civilians, assassinating journalists and intellectuals, etc. on general principles. But there’s nothing wrong per se with limiting the power of the judiciary to strike down legislation — I don’t know enough about Israeli law and politics to know if the charges of the abuse of power are warranted here. (I would also observe that the systematic human rights abuses currently being committed by Netanyahu’s government are a good indication of the limitations of appellate judges as the ultimate bulwark of human rights and civil liberty. Cf. also the United States from the Slaughter-House Cases to Brown v. Board –or, if you want to be generous, Powell v. Alabama — passim.)

This is, however, a useful guide to what is likely to happen should a Republican-dominated Supreme Court face strong Democratic majorities it refuses to allow to govern that passes a court reform bill including an expansion of the Supreme Court. It is true that the text and structure of the Constitution and extensive precedent make it very clear that Congress has the power to add additional justices to the Supreme Court. Nonetheless, surely the faction that has just held that a statute authorizing the executive to “waive or modify” student loan payments does not give the executive branch the power to modify student loan payments will be able to come up with some kind of bullshit rationalization for why this particular expansion is unconstitutional.

Ultimately, then, in Israel now, in the Jeffersonian past and in a hypothetical American future, the balance of power between branches will not be decided formally, but based on whether the branches with the guns and money respect the judiciary enough to enforce its decisions. The American Supreme Court is unusually powerful in part because John Marshall understood that the Court could not win a serious power struggle. But every constitutional crisis has different contingencies, and it seems like American liberals are still pretty far from being willing (or, perhaps more accurately, having the congressional majorities of the size to credibly threaten) to play real constitutional hardball. I would defer to Abigail or other people who know more about Israeli politics than I do, but I would assume that Netanyahu is (for better or worse) less likely to back down.