The Left's Love-Hate Relationship With ‘Judicial Review’
For decades, the legal and constitutional landscape of America, not to mention its social fabric, was transformed by an activist Supreme Court determined to press progressive change on a largely unwilling public, and despite a skeptical Congress, which ordinarily (lest we forget) has responsibility for passing laws – or so the Framers innocently believed, when they created our constitutional republic.
Starting in the 1930s, as the Supremes buckled under to FDR's “New Deal” and its massive expansion of federal government authority and spending; moving into the early post-war period, with the judicial mandate to end school segregation; into the 1960s and '70s, when laws against contraception and abortion were struck down, and even the death penalty was temporarily laid low; and, in some ways, extending even into the 21st century, as an ostensibly “conservative” SCOTUS discovered that gay marriage was a constitutional right, and the 1964 Civil Rights Act's prohibition on sex discrimination provides blanket protection to members of the LGBT community, too, the Supreme Court of the United States has, time and again, rendered decisions that 1) expanded federal power, 2) advanced the political and social agenda of leftists, and 3) won praise and support from elected and unelected Democrats and progressives. There is, in short, ample historical precedent for a fruitful partnership, and much mutual admiration, between the Left and the judicial branch.
Recent events in Israel reinforce the notion that there is something like a natural alliance between progressive ideologues, entrenched bureaucracies, mainstream journalists, educated elites, and professional jurists. All of the above have conspired to undermine the fruits of Israeli democracy, which in 2022 yielded the election of a conservative government led by Benjamin Netanyahu. That government, with its majority in the Israeli parliament, known as the Knesset, early on expressed its determination to reverse the Supreme Court of Israel's absurd domination of that country's government. Based on nothing other than its own juridical fantasies, high court judges in Israel had long since invented a proprietary right to strike down any law, or nullify any decision, made by the Knesset or the executive branch that struck them – the judges of said court – as “unreasonable.” Not only could legislation duly passed by the country's elected representatives be nullified, but even cabinet appointments made by the prime minister could be (and have been) overturned. What's more, the Knesset could not even hope to alter the composition of the Supreme Court over time, since appointments to it were controlled by a “judicial selection committee,” and thus the Israeli electorate has no say. In essence, the deck is stacked in the Jewish State to ensure that progressives will enjoy permanent and total control of Israeli politics. Yes, the people might occasionally choose to elect odious leaders (from the progressive perspective), like Netanyahu, but those leaders would be penned in by heavy-handed judicial oversight. Checkmate!
In July, after much gnashing of teeth among leftists, and not a little street violence actively encouraged by progressive forces, inside and outside of the country, the Netanyahu government succeeded in gaining passage of a relatively mild law that would have amended Israel's “Basic Laws,” specifically by preventing high court judges from overturning laws and government actions merely because they considered them “unreasonable.” Unsurprisingly, last week, the Supreme Court struck down this law, since it claimed it would have done “severe and unprecedented damage to the basic characteristics of the State of Israel as a democratic state.”
Pretty rich, no? The laws passed by the people's elected representatives, by this logic, are invalid because...democracy! In fact, the negation of the people's will, and the enthronement of robed autocrats, is itself the antithesis of democracy, but then again there is little evidence that anyone on the Left has bothered to contemplate the literal meaning of the term, as opposed to its political uses.
Be this as it may, the global Left feted the decision of Israel's Supreme Court, and the humiliation, as they saw it, of Netanyahu. Moreover, it looks unlikely that Netanyahu and his allies, who are currently busy fighting a war against Hamas, will have the courage or the presence of mind to defy the Court's verdict. Once again, the domestic and international Left has closed ranks successfully to protect “democratic” norms – which may or may not be genuinely democratic, but have the practical effect of hobbling populists and empowering professional leftist know-it-alls. For progressives, this is a victory much to be savored.
As judicial activism thus runs amok, with the Left's blessing, in Israel, the irony is that “judicial review”, and therefore the authority and legitimacy of the United States Supreme Court, is about to be tested as never before.
For years now, as conservatives shepherded and then expanded their majority on the Supreme Court, leftists grew wary, and they even began a concerted, sophisticated campaign to vilify and intimidate conservatives Justices. Huge numbers of elected Democrats supported a campaign to pack the Supreme Court with pliant Biden appointees, in order to reverse a series of SCOTUS decisions, like the overturning of Roe v. Wade, with which they disagreed.
Importantly, however, the U.S. Supreme Court, irksome as it has been to progressives, did not have the temerity to intervene, in any meaningful sense, in the conduct of American elections, including the 2020 election that removed Donald Trump – the man who had appointed a third of the Court – from the presidency. Now, though, with several cases looming that may well determine whether or not Trump is jailed before the 2024 election can take place, and whether or not he appears on the ballot in enough jurisdictions and states to have a realistic chance of victory over the incumbent Joe Biden, it is inevitable that the Supremes will be targeted by the Left in unprecedented ways and to a degree never before seen in this country.
The Justices will be excoriated by leftists if their decisions in these cases go against progressive orthodoxy, which posits that Trump is always in the wrong, and that any maneuver, no matter how contrived, deceptive, or mean-spirited, that undercuts or harms him must, by definition, be legal, constitutional, just, ethical, and, above all, necessary to preserve “democracy,” whatever the warped progressive mind may mean by that term. For now, the American Left has but one aim: the destruction of Trump and Trumpism, and any institution that fails to assist in achieving this sacred task must and will be burned to the ground – certainly figuratively, and possibly literally, if need be.
In other words, the Supreme Court is about to find out just how opportunistic and fleeting is the American and global Left's respect for, and advocacy of, the empowerment of professional judges to oversee and control lawmaking, human and civil rights, elections, and every other facet of modern government. The form of that government, and the norms by which it is controlled, in short, do not interest them, but the decisions it renders, and the ideology to which it conforms, most certainly do.
That is why today's leftist can cry “God bless the Supreme Court of Israel!” and “Down with the Supreme Court of the United States!” in the very same breath. The only consistency that can be observed here is a determination amongst progressives to use any institution on offer to advance their narrow agenda, and to destroy anyone and anything that gets in their way.
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