The Challenges of Judicial Restraint


The Challenges of Judicial Restraint

Jul 14, 2023 8 min read
Zack Smith

Senior Legal Fellow, Meese Center for Legal Studies

Zack is a Senior Legal Fellow and Manager of the Supreme Court and Appellate Advocacy Program in Heritage’s Meese Center.
Activists chant in front of the White House after the U.S. Supreme Court struck down President Biden's illegal student debt program on June 30, 2023 in Washington, D.C.  Anna Moneymaker / Getty Images

Key Takeaways

Israel’s Supreme Court arrogated more power to itself. It accomplished through the words of sweeping judicial decisions...almost absolute power.

Many of the Justices on the U.S. Supreme Court, thanks to the work of Bork and many others, are avowed originalists and textualists.

The citizens in both countries should expect their courts to act like courts instead of like legislative bodies that impose their own policy preferences.

Imagine a legal system where anyone can come to court and challenge anything for any reason.

If it sounds fantastical, that’s because it is. 

Take it a step further, though. Imagine that the court’s decisions are final and unreviewable, that there’s nothing like a written constitution to guide or constrain the court’s decisions, and that a party may be prohibited from defending its own challenged actions before the court.

Now, add on top of that a practice where the court effectively gets to select its own members, and this system sounds like something designed to facilitate an autocratic, oligarchic government. It could hardly be described as a court system designed to provide justice for a functioning democracy.

Yet, this is essentially the current state of the legal system in Israel. Instead of Israel’s elected legislature, the Knesset, having the final say on many important issues—even ones involving war and peace—Israel’s Supreme Court has it instead.

Israel lacks a written constitution. It does have a series of fourteen Basic Laws that have taken on something like quasi-constitutional status because the Israeli Supreme Court gave itself the broad power it now claims based largely on two Basic Laws passed in the early 1990s. But as Robert Bork explained more than 20 years ago, shortly after the Israeli Supreme Court supercharged its power grab under the guise of supposedly interpreting some of these Basic Laws, “it is not at all clear that Israel’s Basic Laws were designed to be more than precatory. The Basic Laws were enacted by the Knesset [Israel’s legislature] in the middle of the night without even a majority of the 120 members present. … There was no discussion in the Knesset indicating any recognition that a constitution was being adopted. Certainly there was no understanding that the Supreme Court was to be the final arbiter of what the Basic Law meant. Yet this is how the court has chosen to read them.”

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As a result, some have plausibly argued that Israel doesn’t so much have the rule of law as the rule of judges. But this isn’t the Old Testament, and these judges are a far cry from those divinely appointed ones from so long ago. So how did this sad situation come to be? It’s simple: A judicial coup d’état.

Gradually at first—and then by leaps and bounds—Israel’s Supreme Court arrogated more power to itself. It accomplished through the words of sweeping judicial decisions what dictators in other countries accomplished only through violence and bloodshed: almost absolute power. It did away with any semblance of standing doctrine. It doesn’t believe that any political questions are beyond its reach. And it seeks to overturn governmental decisions that it finds patently unreasonable—code for a majority of justices simply disagree with the decision.

Criticisms of the court and its newfound powers have come in fits and starts, especially from 1995 to 2006, when the court began taking its most radical actions under Aharon Barak’s tenure as President of the Israeli Supreme Court. But after too many years of putting off the inevitable, Israel’s new government finally made judicial reform a priority. Most of the government’s proposals simply sought to shift the Israeli Supreme Court’s self-given power back to the people’s elected representatives in the Knesset.

For instance, the government would be able to argue its own legal positions before the court, control the appointment of new justices to the court, and override certain decisions of the court with a simple majority vote in the Knesset. The proposed reforms would also heighten certain standards that the court applies when reviewing laws and deciding whether to strike them down. All of these are eminently reasonable. But to hear members of the Israeli and American intelligentsia tell it, these reforms portend the end of Israel itself. 

President Joe Biden said in March that Israel “cannot continue down this road,” adding that Israeli Prime Minister Benjamin Netanyahu should “walk away” from the reform plans and would not be invited to the White House “in the near term.”

As two anti-reform Israeli law professors recounted, the current President of the Israeli Supreme Court (self-interestedly) characterized the reform as an “‘unrestrained attack on the legal system,’ as a ‘critical blow’ against judicial independence and impartiality, and as a ‘bad plan’ that would change the democratic identity of the state of Israel, leaving it ‘unrecognizable.’”

Unrecognizable as what, though? The Israeli Supreme Court didn’t give itself many of the powers it now claims to be so essential, such as the ability to strike down laws it disagrees with until 1995 based on its interpretation of a law passed in 1992.

As one commentator said, before the court gave itself these newfound powers, Israel “was a democracy.” After all, a “sovereign parliament is the norm in parliamentary democracies that lack a written constitution for courts to enforce.”

More importantly, Bork also noted that this same judicial usurpation has been happening around the world. Although Israel is the most extreme example, he explained that in many Western democracies, judges routinely exceed their authority in order to “coerce virtue” (or their version of it) from the citizens of their countries—regardless of what their own positive laws say. 

Bork held up Israel’s current conundrum—rule by judicial fiat—as a cautionary tale for other countries, but particularly for the United States. 

When Bork wrote his critique in 2003, a living constitution had haunted America’s courts for decades (as it still does today). Even though the United States has a written constitution, liberal judges had interpreted its provisions broadly and found in its “penumbras” (that is, made up!) unenumerated rights that those drafting and ratifying the Constitution had never contemplated.

Many on the left applauded these developments because they achieved policy goals in the courts that they could never have achieved at the ballot box or through any elected legislature. And many on the right simply acquiesced to them—until recently.

Now, many of the Justices on the U.S. Supreme Court, thanks to the work of Bork and many others, are avowed originalists and textualists. They have the audacity to believe that the words in the Constitution actually mean something, and that where the words are unclear, the Constitution’s structure and our nation’s history should guide their decisions.

There’s a rich academic literature showing why this is the correct approach to interpreting the U.S. Constitution, though there are dissenters too.

Still, it’s worth noting that many on the left have responded to the U.S. Supreme Court recognizing the institutional and constitutional limits of its own power by levying against it many of the same criticisms levied against those who are attempting to reform the Israeli Supreme Court.

In both instances, those who seek to return the courts to their proper roles are being labeled as radicals when really the radicals were those who inappropriately caused these courts to wade into inappropriate political controversies in the first place. In our topsy-turvy world, many on the Left now issue calls for “judicial restraint” and characterize the U.S. Supreme Court’s recent decisions, which seek to restore the Court to its proper role, as “judicial activism.” Of course, these calls for judicial restraint are contextual because the Left isn’t issuing calls for the Israeli Supreme Court to exercise judicial restraint and is, in fact, cheering on and actively opposing the efforts to impose such restraint. 

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More to the point, it’s interesting that while the U.S. Supreme Court is being attacked and undermined for reining in some of the worst abuses and unwarranted expansions of its own powers, the same type of scorn is being heaped upon Israeli officials who seek to rein in the worst abuses of their supreme court. In fact, there is literally a mob mentality on both fronts as protestors have taken to the streets demanding a stop to these efforts.

For now, the Israeli government has paused its plans to reform the Israeli Supreme Court, and Israel’s president, an apolitical actor who is supposed to be above the everyday political fray, has taken the lead in trying to negotiate a compromise deal acceptable to everyone. The government, though, has indicated that if these negotiations fail (as they very well may), it will again move forward with its own plans.

Meanwhile, in the United States, Justices have been threatened and their families have been subjected to near-nightly protests at their homes in efforts to intimidate them. Some on the left have proposed their own court “reform” proposals to limit the power of this new constitutionally oriented Court and lock in the aconstitutional, atextual decisions of its predecessors. But of course, these aren’t really reforms. They’re threats and part of an effort to undermine the legitimacy of an institution that no longer delivers reliably liberal political results. In other words, some on the left are angry that the U.S. Supreme Court is acting more like a court than the unelected, unaccountable super-legislature to which they had become accustomed.

Only time will tell how this tale of two courts will turn out. The Israeli Supreme Court seeks to preserve its own privileged power while the U.S. Supreme Court has—to some limited degree—sought to rein in its own powers and the worst abuses of its predecessors (which ironically have been themselves labeled as usurpations of power). To be sure, the Israeli reforms are far from a done deal, and the U.S. Supreme Court still has work to do. It should pay particular attention to seemingly mundane technical issues like standing, that are, in fact, fundamental separation-of-powers issues.

But more importantly, the citizens in both countries should expect their courts to act like courts instead of like legislative bodies that impose their own policy preferences over those of the people’s elected representatives. That’s not the rule of law. That’s the rule of judges. And that’s something that a free people cannot stand.

This piece originally appeared in Law & Liberty