War has the power to bring out the best in people. Incredible heroism, courage, self-sacrifice rise miraculously. In quieter times, great issues don’t seem to be at stake. We are used to getting by more easily and making easier choices. Faced with life-or-death choices, between deliverance or enslavement, some people rise to the moment and give from their deepest reserves of strength, sometimes even to the last full measure of devotion. We see and hear so many tales of this from Israel today. As in Britain under Churchill, party differences have disappeared, and all give what they can offer for the people to survive and triumph. The people will win their battle with the enemy without. And they will have the last word on the political battles within.
War also exposes human darkness and smallness. When some give everything for their fellow citizen and their people, others, finding people’s minds elsewhere, see war as a unique opportunity to feather their own nest and increase their own power. How jarring it is to see those who wish to be respected as the supreme judges and arbiters of law in Israel should choose the moment when everyone else is fighting for their lives to try to consolidate their position as unelected and unchecked arbiters subject no check or balance whatever. They just overruled a law passed by Israel’s parliament, the Knesset, which required them to have more of a basis in law to overturn a government policy than their own assertion that it was not “reasonable” — a truly astonishing assertion of unlimited, unchecked judicial authority. (READ MORE from Shmuel Klatzkin: Reject Iran’s Lies)
When John Marshall established the lasting precedent that America’s Supreme Court should be able to overturn legislation as unconstitutional, he did so with incredible wisdom. Chief Justice Marshall was a Federalist in a nation that had dismissed the Federalists from power forever. In the case of Madison v. Marbury, though, Marshall did not uphold the case of the aggrieved Federalist, Marbury, whose appointment had been deliberately deep-sixed by Jefferson’s Secretary of State, James Madison. Marshall allowed Jefferson the win, but did so by asserting that a law passed by Congress and which would have awarded Marbury his position was in fact unconstitutional and so invalid.
By giving up his narrow partisan interest in Marbury, he impressed the whole nation with his judicious temperament. The people felt that he was above a small and narrow interest and trusted his assertion of power. And that assertion established a lasting precedent in this country that still seems unassailable.
Israel does not inherit its law directly from America. It came rather from Britain, which has not until most recently had a high court independent of Parliament. There is no reason to say that Israel must follow the specifics of the American model and grant its high court the great powers that John Marshall brought to SCOTUS.
That certainly doesn’t rule out their being able to follow Marshall’s example and make the case to the people that they should invest that court with such a lofty power.
But if they mean to follow Marshall’s example, they are reading him through the Woke prism of pure power. They have just ruled on a case in which they asserted the power to rule invalid a law campaigned for publicly and passed by the people’s representatives that disallowed that court from nullifying laws on the mere assertion that they found it unreasonable.
That seems a reasonable enough limitation. After all, SCOTUS is restricted by a precisely worded document, the Constitution, and by precedent. Excesses have occurred, but they have been largely corrected, a process in which the late, great Justice Scalia played a leading role. Judges should not legislate. Their role under the Constitution is to adjudicate and to preserve the people’s rights under their Constitution.
Israel, like Britain, has no such written constitution. On what basis, then, can the judges overrule the will of the people as expressed through their elected representatives? It would seem fairly reasonable to ask for a more judicious disinterested rationale than just saying: The Knesset thought this was great, but we don’t. With this, these unelected judges, who also can largely pick their own successors, pit themselves against the people — at least, those people who voted in the last election and gave their vote to the winning party, which had put this issue before the votes in clear terms. (READ MORE: A Real Democracy Cannot Protect Hamas)
In the midst of this war, in which the entire country is in mourning over the worst attack in its history, in which young Israelis are sacrificing everything to save their people and their freedom, the high court in Israel ruled on a case that involved itself and its own powers and showed their disinterestedness and impartiality by — ruling for themselves.
Perhaps the people of Israel will agree with them. If that is so, that will be the lasting precedent. But I wonder if this strange and jarring partisanship at a time the country is united in selfless sacrifice might not have crossed a line and be seen even by their former backers as wrong. Dreadfully wrong.
At its best, the American judiciary was intimately aware of its duty to the people who empower the entire constitutional system. When a deeply divisive issue came before the Warren Court in the Brown decision ending school segregation, Warren worked and worked until the court spoke with one voice and unanimously — including Justice Black from Alabama — discarded the standard of separate but equal that upheld Jim Crow. A narrow, split decision would have made the transition away from state-sponsored segregation a nightmare, many times worse and more violent than it was. Marshall’s selflessness was exemplary, and no use was made of the power he established for many years.
When that power was finally used, it was perhaps the single worst use of judicial power in American history — the Dred Scott decision, throwing out every bit of legislation and compromise that had slowly started to limit slavery in the U.S. Probably no single act did more to propel the country into Civil War than that horrific decision.
If Israel’s court wants the power that John Marshall brought to the American Supreme Court, they should have followed more closely Marshall’s own restraint and respect for the will of the people. They didn’t. It’s now back in the hands of the people. It is they who will see what its enduring legacy is.
Justices no less than legislators or administrators can make bad decisions. Some are so truly awful that they can spiral a society into horrific chaos, as did the Dred Scott decision. Lincoln campaigned against the Supreme Court and said in the Douglas debates that he would not allow Dred Scott to be defining precedent. He stood with the right and what a terrible cost was paid. But the people had their say, and put their lives on the line for it, and they, not the courts, established equality in the 13th, 14th, and 15th Amendments. SCOTUS pushed back against equality with Plessy, shamefully and falsely maintaining that “separate but equal” expressed the will of We the People. Courts are sometimes horribly, dreadfully wrong. (READ MORE: Bidenpolitik: A Foreign Policy Without Coherence)
It is the people who will decide in the end in Israel. They will fight on against the enemy without, shoulder to shoulder. Through sacrifice and unity, they will re-establish the peace. They will have the say in the end on this great constitutional issue as well, not a court deciding to increase its own power. It is they who will in the end decide what matches their own dedication beyond partisanship and whether they think the court’s decision is as wise and necessary as Marbury or as disastrous as Dred Scott or Plessy.
The people will win their battle with the enemy without. And they will have the last word on the political battles within. May God bless the people’s selflessness that it be mirrored in their servants in government!
