[In Israel, the United States and other democracies, bitter
battles are being waged over the same question.]
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HOW MUCH POWER SHOULD THE COURTS HAVE?  
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Emily Bazelon
April 14, 2023
New York Times
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_ In Israel, the United States and other democracies, bitter battles
are being waged over the same question. _

, Illustration by Anson Chan

 

The Israeli Supreme Court last month became the subject of a
remarkable clash over its role in the country’s democracy. Prime
Minister Benjamin Netanyahu and his governing coalition proposed a
change in how judges are appointed in a measure that also stripped
them of some essential powers
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Netanyahu, who leads a right-wing government with ultra-Orthodox
partners, said he was “strengthening” democracy by giving elected
lawmakers more say over unelected judges. But many Israelis,
especially secular and moderate Jews, feared the opposite. Hundreds of
thousands of protesters blocked the highways; military reservists
refused to report for duty, and a general strike loomed. The unrest
forced Netanyahu to back down for now.

The court’s defenders had reason to think the country was at a
precipice. Over the last dozen years, in places like Hungary, Poland,
Turkey and Venezuela, a key step toward one-party rule, toward a
weakened democracy, has been to diminish the judiciary.

When Viktor Orban and his conservative party, Fidesz, won the
elections in 2010 for prime minister and control of Parliament, the
Constitutional Court was Hungary’s most respected political
institution. Over the previous two decades, the court helped the
country transition from Communist control to full-fledged democracy,
building a new legal order and serving as the primary check on the
single house of Parliament. But the court’s strength also made it a
target.
[[link removed]] Orban
and Fidesz amended the Constitution to give Parliament — rather than
an independent body — the power to approve new judicial
appointments. Another amendment curtailed judicial review — the
power of the Constitutional Court to examine and overrule the
decisions of the elected branches of government.

It was hard to see the slide toward autocratic rule at the time.
Unlike a military coup — troops in the streets, dissidents beaten
— a legal coup can appear to be just a set of technical-sounding
touch-ups. Orban also said he was “strengthening” democracy, and
the Hungarian press freely reported on his proposals. He and Netanyahu
compared giving members of their Parliaments more control over
judicial appointments to the power that the U.S. president and Senate
have in nominating and confirming judges.

But democracies vary, and Israel and Hungary lack the checks and
balances of the American system. For example, neither has two houses
of Congress that can block each other, or a clear separation between
the executive and legislative branches, or a federalist system of
states or provinces that retain significant powers. In the absence of
such checks, adopting political control over judicial appointments
would amount to what the legal scholars Rosalind Dixon and David
Landau call “abusive borrowing.”
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as Kim Lane Scheppele, a sociologist at Princeton, wrote of
Orban, autocrats can rise
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“combining the bits and pieces of perfectly reasonable institutions
in monstrous ways.”

The lesson is an old one: Majority rule is a necessary ingredient of
democracy, but it can’t be the only one. “The accumulation of all
powers, legislative, executive, and judiciary, in the same
hands,” James Madison wrote in The Federalist Papers
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justly be pronounced the very definition of tyranny.” To sustain
themselves, democracies have to maintain the conditions that allow
power to change hands, including the rule of law, rights for
minorities and the building blocks for effective opposition, like a
free press.

The structural changes to sideline national high courts like those
that Hungary made and Netanyahu’s coalition proposed point to the
ways in which the main tool of democracy — majority rule — can be
used to undermine it. But a judiciary that is _too_ powerful can
also pose its own set of dangers to a healthy democracy. Perhaps more
than any other country, the United States has a system of judicial
review that locks into place the court’s interpretation of the
meaning of the Constitution even when it’s out of step with popular
will.

The Constitution offers voters a course correction: elections. If the
Supreme Court imposes views that the public rejects, voters can choose
a new president to nominate new justices and a new Senate to confirm
them. But it’s a blunt instrument, because elections turn on a range
of issues. And the American system has a singular feature, life tenure
for federal judges, that slows down and randomizes their rotation.

The Supreme Court’s rulings over the past couple of decades on
campaign finance, voting rights and redistricting have repeatedly
undercut Congress and had the likely effect of tilting political power
toward wealthy donors and skewing representation through
gerrymandering. This term, in the case Moore v. Harper,
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court could upend how disputes over casting and counting ballots are
resolved, a year before the 2024 election. It’s conceivable that the
U.S. Supreme Court could help bring democracy to the brink not because
it’s too weak, as other countries have experienced, but because
it’s too strong.

THE SUPREME COURT helped make the United States a truer democracy in
the 1960s, a departure from its longstanding record of obstructing
Congress from doing so. In Reynolds v. Sims,
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the constitutional right to equal protection required states to draw
maps with roughly equal numbers of people in each legislative
district. “Reynolds is the most important case in the Democracy
canon,” Guy-Uriel E. Charles, a law professor at Harvard, and Luis
Fuentes-Rohwer, a law professor at Indiana University,
Bloomington, wrote in The Alabama Law Review in 2015.
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Almost every state redrew its electoral maps within two years to
follow the rule of “one person, one vote” set by the court.
Because more populous cities gained representation with increasing
numbers of Black and immigrant residents, the court’s stand for
political equality also furthered racial equality.

Congress was as important as the court in transforming democracy in
the civil rights era, argues Franita Tolson, a law professor at the
University of Southern California who is writing a book about
congressional power over elections. Congress ended poll taxes and
literacy tests — the barriers of Jim Crow — by passing the Voting
Rights Act in 1965.

The Supreme Court ruled the following year that the act had a valid
basis in the Constitution. Over the next decade, the court’s
reputation for bold decision-making grew. In the wake of Roe v. Wade,
which in 1973 established a constitutional right to abortion,
conservatives denounced the court for “judicial despotism,”
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the words of Robert Bork, who failed to win confirmation to the
Supreme Court in 1987. But the legal academy, as it grew increasingly
liberal, largely celebrated the court’s strong role. The legal
philosopher Ronald Dworkin proposed that court decisions might provide
“a superior kind of republican deliberation” than debate in the
context of legislation or elections. “For the first and only time in
American history, we had a progressive activist court, and young
progressive academics loved what you could do with it,” says Larry
Kramer, the former dean of Stanford Law School and president of the
Hewlett Foundation. “They embraced judicial supremacy.”

American law professors had a strong hand in exporting the U.S. model
abroad as countries resurrected their legal orders in the wake of
fascism, colonialism and later Communism. At the end of World War II,
only a dozen established constitutional democracies remained standing.
Over the next decades, new constitutions were written and adopted in
India, Africa, Latin America and Southern and Eastern Europe. As in
Hungary, countries relied on courts, based on the new constitutions,
to enforce rights and check majority rule. By 2003, the number of
constitutional democracies among the member states of the United
Nations grew to 121.

Many of the new constitutions gave the high courts clear authority to
safeguard the rights of minorities and the democratic system. Some of
the courts vigorously wielded this power to set aside majoritarian
decisions that appeared to undermine democracy over the longer run. In
1998, after a referendum for secession nearly passed in Quebec, the
Canadian Supreme Court ruled that such a vote would not be
constitutionally sufficient because it violated the principles of
federalism and the protection of minorities. When lawmakers in
Colombia proposed a referendum in 2010 allowing President Álvaro
Uribe to run for a third term, the Constitutional Court ruled that a
president who served for 12 years would amass too much power, through
appointments, over the institutions charged with checking him. The
South African Constitutional Court asserted its independence from the
ruling African National Congress party at several critical junctures,
allowing corruption charges to proceed against a former president.

These courts appeared to pick their battles carefully. “If courts
abdicate their responsibility to protect democracy, they’re not
doing their job,” says Dixon, a law professor at the University of
South Wales in Australia. “But if they are too robust about
confronting the political branches, they’re almost certain to be
subject to attack and derailment in the long run. They have to allow
society to recalibrate so that people don’t see the court as a
massively political institution.”

The Israeli Supreme Court became vulnerable to attack in part because
the country does not have a constitution granting the court the power
to interpret it. When Israel was founded in 1948, efforts to draft a
constitution broke down. Leaders of the dominant and secular Labor
Party saw little reason to limit their own power and didn’t want to
jeopardize their shaky accord with the ultra-Orthodox parties, which
wanted religious law to be sovereign. In the 1980s, as Israel’s
Jewish population became more religious and traditional, secular
Israeli law professors drafted provisions for a constitution,
consulting with their American peers and Aharon Barak, an Israeli
Supreme Court justice. In 1992, the Knesset passed a Basic Law (a
statute setting a national standard) that guaranteed dignity and
liberty. Barak proclaimed a “constitutional revolution”
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judiciary.
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falls beyond the purview of judicial review,” he wrote.

The Israeli Supreme Court has tried over the years in various ways to
mediate the tension between the country’s twin commitments to being
both a Jewish and a democratic state. It ruled in favor of gender and
sexual equality and the status of Conservative and Reform Jews,
rejecting ultra-Orthodox positions. But it has backed away from the
role of protecting Palestinians
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Israel, who lack equal rights, and Palestinians in the West Bank, who
have no vote in Israeli elections.“The court has not said, ‘Our
role is to ensure the rights of those who are least able to protect
themselves through the democratic process,’” says Omar Dajani, a
law professor at the University of the Pacific. “Instead, the court
says again and again: ‘The state is in a fragile situation. We are
deeply mindful of the security concerns it faces. We’re going to
create a framework for balancing interests.’ And then the balancing
almost inevitably leads to privileging state interests over
Palestinian interests.”

The court seems to be taking into account right-wing frustration in
other ways. “Over the last 20 years, the Israeli Supreme Court,
while issuing valuable rulings on the rights of women, L.G.B.T.Q.
people, refugees and asylum seekers, has actually been in gradual
retreat from the Barak revolution and the all-out progressive line,”
says Ran Hirschl, a professor of political science and law at the
University of Texas, Austin, and author of the 2004 book “Towards
Juristocracy.” Yet the court’s image as secular and elite remained
a potent political tool for the right.

THE U.S. SUPREME COURT is hearing two election-law cases this term
with major implications for the democratic process. In Merrill v.
Milligan,
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conservative majority appeared ready, at the oral argument in October,
to once more undercut the Voting Rights Act
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which remains only half-standing since the court’s 2013 ruling
in Shelby County v. Holder,
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Department’s role in preapproving changes to state and local
election procedures. In Moore v. Harper, the court is considering a
theory that would take away from state courts the power to rule on
redistricting or challenges to election results.

The case concerns a 2022 North Carolina Supreme Court decision to
strike down a state redistricting map after finding that it was a
partisan gerrymander in violation of the North Carolina Constitution.
The lawyers for the plaintiffs, who are a group of North Carolina
voters, argued that the court did not have the authority to do so.
They cited the “independent state legislature” theory, which
claims, based on a reading of the Constitution’s elections clause
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the Supreme Court has never adopted before, that only legislatures can
set election rules. Proponents of the most muscular version of this
theory say the clause leaves no role for governors, election
administrators or nonpartisan redistricting commissions — and even
forecloses the usual review by state courts. In other words, state
legislatures would have nearly unchecked power over federal elections.

At the oral argument in December, several justices seemed skeptical
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a state “can do whatever it wants,” as Chief Justice John G.
Roberts Jr. said. But Justice Brett M. Kavanaugh floated the idea,
from a concurrence in Bush v. Gore
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Rehnquist, of augmenting the authority of federal courts — including
this Supreme Court — “to make sure that the state court had not
significantly departed from state law.” This approach, too, would
weaken a basic tenet of federalism: the North Carolina court’s power
to decide the case based on its own Constitution.

It’s the kind of case that shows that a powerful court can be a
double-edged sword. “It has been 50 years since the Warren court,”
Kramer says, referring to the leadership of Chief Justice Earl Warren
in the 1960s and ’70s. “But the left is still romantically
entranced by the idea the court will protect us, when really it throws
us an occasional bone while it tears apart everything else we care
about.” Perhaps the most egregious example of the court’s role in
electoral politics was Bush v. Gore, in which justices nominated by
Republicans overturned the Florida Supreme Court to stop the recount
of ballots in the state, effectively handing the election to the
Republican candidate for president.

The way to ensure that social change endures, Kramer argues, is to
persuade the public and win elections, as advocates of abortion access
have done in state ballot initiatives since the court overturned Roe
v. Wade
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summer. On some issues, however, court rulings have helped move the
public, feeding the democratic process. Courts “can amplify voices
marginalized in politics,” the Yale law professors Douglas NeJaime
and Reva Siegel wrote in The New York University Law Review
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2021. “Don’t miss the mobilizing effect of going to court,”
NeJaime says. “That’s the L.G.B.T. story.” The right to same-sex
marriage first gained traction in state court and then won support in
state legislative battles. In 2015, the Supreme Court enshrined the
right in the Constitution in Obergefell v. Hodges. And last year,
Congress passed the Respect for Marriage Act, making marriage equality
federal law with bipartisan support.

In response to Democrats’ concerns about the Supreme Court’s power
and composition, the Biden administration set up a presidential
commission in 2021 to consider proposals for judicial reform.
Increasing the number of justices on the court got the most attention.
But scholars tend to be skeptical. Adding justices could lead to a
tit-for-tat between the parties, with each packing the court when
it’s in power.

The commission heard other recommendations concerning the pressing
question: Is the U.S. Supreme Court too supreme? Proposing term
limits, Dixon pointed out that terms of eight to 12 years for judges
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become the global best practice. (Changing life tenure for justices
might require a constitutional amendment, but some scholars have
proposed a workaround,
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moving justices to lower courts at a designated point to serve out
their life tenure.) Scheppele suggested giving Congress the power to
override Supreme Court rulings
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constitutional cases or making it easier to amend the Constitution.
That could reduce the political heat of judicial confirmations, she
says. “The Supreme Court’s interpretation of the Constitution
would not any longer be the primary roadblock in the way of
modernizing it.”

Even without reforms to the court, Congress has the power to respond
to its rulings far more than lawmakers have done lately. Nothing,
theoretically, prevents Congress from passing a new Voting Rights Act,
for example, or a law protecting against partisan interference in the
administration of elections. (Congress did update the law
for counting electoral votes after the violence of Jan. 6.
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But our political reality makes that unlikely. “We’re in a
historically unusual period of very thin and unstable partisan
majorities,” says Keith Whittington, a politics professor at
Princeton. “That’s what’s most distinctive about our politics.
It gives the court a lot of leeway to do things without having to
worry about Congress pushing back.” If Republicans dominated
elections for a sustained period, the conservative majority on the
court would have even more freedom. “If Democrats gained a stable
and large majority,” Whittington says, “the conservative majority
on the court would either have to adjust its behavior, or it’s
likely that Congress would slap it down.”

In the absence of such congressional determination, however, the
Supreme Court can continue to mold how voting, redistricting and
counting ballots take shape. And that has implications beyond our own
borders. The signals the court sends about what it takes to sustain a
healthy democracy affect courts internationally. “The world is
watching,” Dixon says. “And this court has to do more to make sure
it doesn’t destroy the slim role the judiciary plays around the
world in protecting the democratic core.”

_EMILY BAZELON is a staff writer for the magazine and the Truman
Capote fellow for creative writing and law at Yale Law School. Her
article ‘‘The Battle Over Gender Therapy’
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was a finalist for a 2023 National Magazine Award in the
public-interest category._

_Visit the NEW YORK TIMES website to subscribe.
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