Relatedly, intent matters. The calls for reform in the U.S. follow decades of expansive, counter-majoritarian rulings from the Supreme Court on countless major issues, from abortion to gay rights, gun policy, voting rights, and much, much more. Indeed, these rulings have not only amounted to a direct assault on the will of the people and their elected representatives but also have elevated the judiciary, which our Constitution envisions as the least powerful branch, to a super-legislative body. The same simply cannot be said of our Israeli counterparts. Instead, the Israeli right’s primary gripes with their Supreme Court are things like rejecting religious exemptions from military service and disallowing Prime Minister Benjamin Netanyahu from appointing a convicted fraudster to a ministerial position. While the Israeli Supreme Court certainly has played a substantial role in shaping public life in Israel, the breadth and public support of its rulings simply do not fall within the same stratosphere as the U.S. Supreme Court.
Worse yet, nearly everyone understands—and some on the Israeli right have admitted—that the latest move is part of a much broader effort to neuter Israel’s Supreme Court, further entrench right-wing rule, and potentially interfere with Netanyahu’s impending criminal trial. This quest is hardly a good-faith debate about the role of the judiciary in a liberal democracy; it is a raw attempt to shift power toward an unprecedentedly radical right-wing government amid extraordinary public outcry.
Thus it is wrong to frame the issue broadly as one regarding “judicial independence” or “checks and balances.” There is no serious philosophical or legal debate occurring in Israel. To pretend otherwise only serves to reinforce the idea—which is pervasive across the aisle in American government and is the root of our own burgeoning constitutional crisis—that courts should occupy such a prominent place in public life in the first place. The issue posed by the Israeli right’s latest move, then, is not a legal or structural one but a political one: This is about the illiberal right’s attempt to co-opt power and squash majority rule. Nothing about it should cloud our conceptions of our own government and the unique challenges posed by our judiciary.