Democracy of, by, and for the justices

In short, our former Supreme Court president thinks “democracy” is perfectly compatible with having unelected judges write a constitution and then impose it by fiat. In real democracies, constitutions require ratification by the people or their elected representatives. But Beinisch evidently prefers Soviet-style democracy, in which unelected officials makes the real decisions while the “elected legislature” is merely for show.

Nor is she unusual: Her predecessor, Aharon Barak, imposed Israel’s existing “constitution” by fiat. By asserting that two 1992 Basic Laws approved by a mere quarter of the Knesset (respectively, 23 and 32 out of 120 MKs) constituted a constitution even though most MKs hadn’t intended it as one, he enabled the court to overturn other legislation passed by much larger majorities.

But what made Beinisch’s comment particularly eerie was its juxtaposition with the very different conversation taking place just then in America. Discussing President Barack Obama’s newfound support for gay marriage, several commentators noted that despite comparing it to civil rights and women’s rights, Obama advocated leaving decisions on the issue to the individual states rather than having the courts impose it as a constitutional right. “Different communities are arriving at different conclusions, at different times,” he said. “And I think that’s a healthy process and a healthy debate.”

Yet why, if gay marriage is a right, should it be left to the whim of state legislatures? “What seems to loom here,” responded Anand Giridharadas in The New York Times, “is the specter of Roe v. Wade, the 1973 Supreme Court ruling that made abortion a federal constitutional right — but did so in a manner that interrupted an unresolved national conversation, as many supporters of abortion rights concede today, and thereby divided the country into two irreconcilable camps.”

In short, almost 40 years later, even supporters of Roe v. Wade have finally realized what Beinisch and her fellows still haven’t grasped: that imposing norms on an unwilling public by judicial fiat can do more harm than good.

Roe v. Wade was blatant judicial activism: The court first asserted a constitutional right to privacy that exists nowhere in the US constitution, famously invoking the unwritten “penumbras” of the Bill of Rights as one justification. Then it decided this right was “broad enough” to encompass abortion on demand.

Moreover, the ruling clearly contradicted majority sentiment. In 1973, abortion on demand was legal in only four of the 50 states. In most states, it was completely illegal; in the rest, it was legal only in certain specified circumstances (i.e. rape or danger to the mother’s health).
But public opinion was already shifting: According to the National Abortion Federation, “one-third of the states liberalized or repealed their criminal abortion laws” between 1967 and 1973. And had this process continued naturally, abortion might ultimately have won broad social acceptance, just as other behaviors once frowned on (divorce, out-of-wedlock pregnancy) are now socially accepted.

Instead, because it was imposed by judicial fiat, abortion became one of the most hot-button issues in American politics, and remains so even four decades later. Abortion opponents didn’t feel they had lost fairly; they felt they had been robbed of hard-won victories in state legislatures by an unelected court. Consequently, they felt a burning resentment that never healed. And instead of abortion rights gaining social acceptance, the number of Americans who label themselves “pro-choice” has declined to an all-time low.

Many Israelis similarly resent Israel’s Supreme Court for repeatedly nullifying their hard-won victories in the democratic arena. The court has asserted the right to overturn government decisions and/or legislation on virtually every important policy issue Israel faces: immigration and citizenship (from defining who is a Jew, and thereby entitled to automatic citizenship, to deciding whether Israel may deny entry to enemy nationals), budgetary priorities (it has, for instance, asserted the right to set minimum welfare payments and add treatments to the national health insurance plan), family matters (from recognizing gay couples to criminalizing spanking), even military tactics during wartime (such as targeted killings of terrorists). In its view, there’s no such thing as an issue that is properly left to the elected branches of government: “Everything is justiciable,” as Barak famously said.

Moreover, the court frequently nixes government policies not because they contradict any actual law, but because the justices deem them “unreasonable” – a decision most democracies leave to the voters – or because they violate a “right” of the court’s own invention.

Ironically, the court itself is the first victim of this overreach: Public confidence in it has been plummeting. The second victim, as Roe v. Wade shows, is social cohesion: Disputes that are resolved by judicial fiat instead of democratic give-and-take generally leave the loser angry and embittered, splitting the country “into two irreconcilable camps.”

The third victim, however, is the very democracy Beinisch claims to want to protect: When people feel they have no real influence over government policy, because most major decisions are ultimately made by a group of unelected justices, they lose faith in the democratic process. Indeed, this is already happening, as both falling voter turnout and polls measuring democratic sentiment show. And while judicial overreach isn’t the only cause of this decline (our flawed electoral system also plays a significant role), it’s a major contributing factor.

Americans, it seems, have finally realized the pernicious effects of judicial activism. But here in Israel, our judicial overlords clearly haven’t: Not content with the power they already have, they now claim the power to write the very constitution they will later interpret.

This is unconscionable, and Beinisch’s statement should serve as a wake-up call: If Israelis want to preserve their democracy, restraining the Supreme Court must be a top priority.

The writer is a journalist and commentator.