Will the US judicial right- wing swerve influence Israel’s Supreme Court?
With the appointment of Amy Coney Barrett swinging the US Supreme Court to a clear 6- 3 Right- leaning direction there is a question whether it will also cause Israel’s Supreme Court, thought of as more liberal, to also move in a rightward direction.
Although there is no parallel timeline, there have been cases where judicial trends in the US have had an impact in Israel too – but often with a lag of about a decade, so the same could eventually be true of the era after Coney Barrett’s appointment.
The first case of this was with chief justice Shimon Agranat, who was president of the Supreme Court between 1965- 1976. He grew up in the US and trained as a lawyer at the University of Chicago before moving to Israel.
Agranat was highly influenced by aspects of early liberal American jurisprudence and started to use Israel’s Declaration of Independence as a quasi- constitution to broaden judicial review even before the passing of Basic Laws in the 1990s.
The big move towards liberal jurisprudence in the US came with the reign of chief justice Earl Warren from 1953- 1969, culminating with some major rulings in the 1970s and a lighter version of liberalism was maintained during the term of chief justice Warren Burger from 1969- 1986, although Burger himself was not particularly liberal.
These strong liberal trends began to emerge in Israel during the era of chief justice Meir Shamgar from 1983- 1995 and culminated with his successor, chief justice Aharon Barak’s judicial revolution from 1995- 2006.
Barak spent time studying and teaching at Harvard and Yale law schools and made a point of citing US liberal judicial decisions as precedent and as a basis for expanding judicial review powers in Israel and this is clear evidence of how liberal American legal trends have influenced Israel’s Supreme Court.
But there has been a counterpoint. Both the 1973 US Supreme Court Roe v. Wade decision legalizing first
trimester abortion, and successive rejections of Republican Supreme Court candidates, culminating in a major battle in 1987 which saw the rejection of Robert Bork, led to a massive backlash.
If liberal activists understood from
the 1950s onwards that the courts could be used to achieve greater equality for African- Americans, women and other sectors, and more liberal jurisprudence regarding individual liberties, conservatives started to realize from the 1970s that control of the courts could also limit aspects of abortion, gun control, and generally protect more conservative American values.
By 1989, conservatives had taken control of the US Supreme Court for the first time in decades and conservative academics had started to counter “judicial activism” – the courts’ encroachment on the other branches of government.
In 2007, Daniel Friedmann, Israel’s then- justice minister, was the first major figure to try to swing the Israeli legal establishment and the judiciary toward the conservative end of the pendulum, employing the same attack on “judicial activism” that had helped conservatives gain the upperhand in the US.
Since then, the progress of conservatives in Israel has been uneven, but Prime Minister Benjamin Netanyahu succeeded in passing a special law to enable conservative Asher Grunis to become chief justice from 2012- 2015.
Further, justice minister Ayelet Shaked appointed at least four out of six conservative justices during her tenure, including Alex Stein, who caught her attention as a well- known critic of judicial activism in US academia.
All of this has brought Israel’s Supreme Court to a place where it is not yet majority conservative, but where it is far less liberal than it was under Barak.
With Barrett’s ascent likely cementing conservative control of the US Supreme Court for a generation, there is a strong probability that the pervading conservative jurisprudence in the US will nudge Israel’s Supreme Court further to the Right.
This is all the more true because at present, no major Israeli political party professes broad liberal judicial values in the way the Labor party did in the past, and centrist parties seem only to want to avoid friction with the court relating to Netanyahu’s trial, although they support Palestinian house demolitions and other activities previously criticized by the Left.
Between now and October 2023, four of the five justices who will retire are from the liberal wing of the court and a liberal- conservative battle for dominance will heat up.