Richard A. Epstein and Max Raskin: Opponents of Benjamin Netanyahu\u0027s judicial overhaul prefer government by tantrum
Biden’s message is rich in unintended ironies. Any Israeli consensus is a de facto call to keep the status quo on all matters pertaining to judicial reform. But on American domestic policy, major legislation like the Inflation Reduction Act is passed without a single Republican vote, executive orders are regularly employed, and the Supreme Court criticized when it strikes down his ukase.
The Israeli justices have become a law unto themselves, not the interpreters of laws drafted by the political branches of government. The Court has even arrogated to itself the right to determine whom the state awards its highest honors to — in one case, ordering the nation’s Israel Prize beto an academic the government says supported BDS. Imagine U.S. Supreme Court Justices Elena Kagan and Samuel Alito deciding whom to honor at the next State of the Union.
Intermittent interventions by courts create messes that elected officials will find difficult to correct. Thus, virtually everywhere these political questions are institutionally kept from the courts. As stated in American jurisprudence, the constant fear is that judges who have no subject matter expertise pose a real danger to the political branches when they seek to resolve these delicate issues.
It’s ironic because, at least in the American context, progressives are the biggest champions of administrative and political decisions and have been quick to decry what they see as an activist, conservative court striking down laws and regulations where they have no business or expertise doing so. Many Democrats, including President Biden, have entertained making fundamental changes to the size and jurisdiction of the U.S. Supreme Court — plans known as “court packing.
The protesters and their leaders never explain why Israel should remain a global outlier. Instead, they throw a tantrum intended to disrupt the deliberative processes of a democratic government. The intensity of their preferences are meant to drown out any serious substantive discussions, and their explicit threats to economic and national security are a powerful veto over any action.
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