Liberties There's nothing Artificial about our Intelligence

One of the many extraordinary powers that the progressive Israeli Supreme Court has given itself is the authority to invalidate a government action based on the Justices’ conclusion that the government did not weigh, or properly weigh, all relevant public interest considerations before acting. This “reasonableness” doctrine is an open-ended judicial check to ensure that elected officials and civil servants “respect their fiduciary duties vis-a-vis the public they serve and exercise their powers with a view to advancing the public interest,” explain Israeli law professors Amichai Cohen and Yuval Shany, defenders of the doctrine. The Court has invoked the reasonableness doctrine to invalidate numerous government appointments and initiatives.   The right-wing coalition government in Israel, which prevailed in the elections of 2022 by a very slim margin, despises the reasonableness doctrine and other tools that the Court has wielded to neuter the Israeli right’s victories at the polls by thwarting their policies in office. On July 24, 2023, the Knesset narrowed (but did not eliminate) the reasonableness doctrine by disallowing the Court and other Israeli judges from applying it to cabinet ministers. “This is the destruction of Israeli democracy,” declared Yair Lapid, the leader of Israeli’s largest opposition party. Lapid was puffing wildly. The July 24 vote imposed a relatively modest and perhaps circumventable check on the Court that left intact all of its powers over legislation and the vast majority of its powers to review government action.    Lapid’s deeper worry is that the government will pass a broader package of judicial reforms that would dramatically diminish the only check on its otherwise boundless power, as the current government has vowed to do. The ultimate stakes in the Israeli judiciary debate are about who controls the future of the State of Israel: the demographically ascendant nationalist and religious groups who currently control the Knesset but who have long been losers in the Court; or the demographically less ascendant secular and progressive groups currently excluded from political power whose interests have long been reflected in and protected by the Court. These stakes explain Lapid’s catastrophizing, and why judicial-reform opponents have engaged in massive disruptive protests — including threats by reservists to quit the military and by prominent businesses to leave the country — since the reforms were introduced in January 2023.   Sixty years ago the great legal scholar Alexander Bickel labeled the question of whether unelected judges can legitimately invalidate laws enacted and enforced by elected officials as the “countermajoritarian difficulty.” The Israeli judicial reform movement argues that as practiced by the Israeli Supreme Court, the answer is no. But there are other answers. John Hart Ely claimed that judicial review bolsters democracy when it checks anti-minority biases in the elected branches and supports prerequisites to democracy such as freedom of speech and voting rights. One can see traces of Ely’s idea in the opposition to reform, which is premised on a belief that the Israeli Supreme Court is the nation’s only bulwark against the government’s corruption, its privileging of religious rights, and its diminution of human rights for groups excluded from politics, including Palestinians and Arab Israelis.    The United States has also recently experienced a clash of judicial visions, albeit at a lower temperature and with the political roles flipped. Here the conservative shift in the Supreme Court following President Donald Trump’s three appointments — Neil Gorsuch, Brett Kavanaugh, and Amy Barrett — has led many progressives to paint the Court as a threat to democratic values, to try to discredit it, and to propose reforms to limit its authority in the name of democratic control. In April 2021, President Biden appointed a bipartisan commission to analyze these proposals. (I briefly served on the commission.) Its final report later that year was a consensus document without strong recommendations. But it seriously considered many reforms, including expanding the Court’s size, imposing term limits or super-majority voting rules, rotating Justices, stripping the Court of jurisdiction to decide certain cases, and empowering Congress to override Supreme Court decisions.    The parallel debates in the United States and Israel seem like they are about the same issue, but vast differences in the histories and the legal and political cultures of the two nations counsel caution in the comparison. And yet these debates considered together have much to teach about the necessary but invariably unsatisfying role of independent courts in a democracy.             Progressive agitation to curtail the power of the U.S. Supreme Court reached a fever pitch in the summer of 2022, when the Court overruled Roe v. Wade, expanded gun and religious liberty rights, and made it much harder for the executive branch to redress climate change. The Court had been moving rightward for decades, as Republican presidents since Nixon have appointed fifteen of nineteen Justices. But it had sided with the left on most social issues during this period, and conservatives continued to lose on other issues they cared about as well.    With the term ending in June 2022, the most conservative Court in almost a century finally seemed to have overcome all constraints on effectuating its vision. Groups on the left were enraged over having lost complete control of the Court that did so much of its bidding for so many years going back to the New Deal. Frustrated by Trump’s success in appointing three Justices (and in the failure of President Obama’s appointment of Merrick Garland), and appalled by the Court’s rulings, they began to attack the Court as illegitimate. And they clamored for action to cut back the Court’s power by packing it with liberals, impeaching conservatives, and fast-tracking Congress’ power to override Court decisions.    It all seemed pretty radical, but none of it was new. Since the beginning of the republic, the Supreme Court interpreted the Constitution’s many open-ended provisions to limit state and federal laws and actions. Through such judicial review, the Court has asserted the final say over the nature and the scope of governmental power and the range