A Consistent Approach to Protecting Judicial Review in Both the US and Israel

The debate triggered by right-wing Israeli government’s controversial plan to neuter the Israeli Supreme Court and essentially eliminate judicial review has led to accusations that people are taking inconsistence stances on judicial review in Israel relative to their position on its use in the United States. Many on the left who support court-packing or other measures to neuter the US Supreme Court oppose Prime Minister Benjamin Netanyahu’s plans to do the same to its Israeli counterpart. And vice versa.

Ilya Shapiro, director of legal studies at the conservative Manhattan Institute, tweets that “In Israel, the Left wants Supreme Court to maintain its awesome power (incl picking its own members) bc that benefits the Left. In the US, the Left wants to delegitimize a Court that’s no longer doing its bidding. It’s all about power, not principle.” What Shapiro (who, to forestall a common form of confusion, I should note is a different person from me) says about the left can just as easily be said about many on the right who cheer on  Netanyahu, while opposing any attempt to significantly weaken the power of the US Supreme Court.

However, it’s a mistake to assume that everyone is inconsistent in this way. I, for one, oppose the right-wing Israeli government’s judicial reform plan, and am also a longtime opponent of court-packing and other proposals that would neuter judicial review in the US. This combination of views may be a minority stance. But it’s far from unique to me. A good many US liberal legal scholars and commentators also oppose court-packing in the US, while simultaneously (I suspect) opposing Netanyahu’s plans, as well.

In both countries, I support strong judicial review because it preserves civil liberties and property rights and protects various types of minorities more than the political process is likely to do, if the latter is left unchecked. In addition, gutting judicial review is  a standard tool of authoritarians seeking to undermine liberal democracy, used in such countries as Hungary, Turkey, and Venezuela. Here in the US, independent federal judges—including many conservative ones—rejected Trump’s efforts to overturn the 2020 election. A judiciary under the thumb of the party in power would have been far less likely to do that. What I wrote in 2019 about judicial review in the US also applies to Israel and most other democracies:

For all their serious differences and very real flaws, mainstream liberal and mainstream conservative jurists still agree on many important questions, including protection of a wide range of freedom speech, basic civil liberties, and ensuring a modicum of separation of powers, among others. History shows that these are the sorts of restraints on government power that the executive… is likely to break during times of crisis, or when they have much-desired partisan agendas to pursue. Such actions are especially likely if the president [or prime minister in a parliamentary system] is a populist demagogue with authoritarian impulses…..

The deeply illiberal elements in Israel’s prese