Court packing undermines judicial independence: Both in the U.S. and Israel the high court is under threat

The specter of court packing is once again rearing its ugly head. Although President Biden has thus far refused to endorse this insidious attempt to destroy the independence of the Supreme Court, many among the growing number of left-wing influencers in the Democratic Party are seeking to gain control over what is supposed to be an independent judiciary under our system of separation of powers.

A recent article in Medium, which publishes articles from more mainstream Democrats such as Barack Obama and Hillary Clinton as well as some Republicans, is pulling no punches. It demands that Democrats call for expanding the court in order to put the justices “on notice that their belligerent intransigence will finally be met with fierce resistance and calls for radical reform.”

Following the Supreme Courts’ ill-advised and unnecessarily broad decision overruling Roe v. Wade, many mainstream Democrats, including some influential academics, have sought to expand the number of justices to 15, and to do it immediately so that Biden can nominate the additional six justices. The Medium article declares that “this Supreme Court is poison to its core thanks to right-wing money, a 40-year campaign by Republican activists such as Leonard Leo, the Federalist Society and Republican politicians.” It continues; “This is why Democratic leaders need to take a play from President [Franklin Delano Roosevelt] and at least threaten to expand the court,” or “else conservative justices will simply double down on their ideological crusade.”

This left-wing campaign to take over the Supreme Court will only increase if and when the justices end race-based affirmative action, as they are likely to do this term. Fortunately for our separation of powers, court packing remains unlikely to be achieved so long as the Republicans control one house of Congress.

Let there be no mistake about it: attempts to pack the court and weaken it in other ways are not designed to bring about structural improvement in the court’s workings. They are designed solely to achieve immediate political ends, namely ensuring Supreme Court decisions that favor the left and the Democratic Party. On their merits, I would support many of these outcomes. As a liberal Democrat, I yearn for the Supreme Court for which I clerked back in the 1960s, which expanded civil rights, freedom of speech, separation of church from state, the rights of the accused and other basic liberties. But I strongly oppose using structural reforms to achieve these ends.

The mirror image of this left-wing attempt to weaken our Supreme Court is being played out in Israel, where the political shoe is on the other foot. In Israel it is the right-wing that is dissatisfied with decisions rendered by its Supreme Court, and so it is trying to take control over the appointment process. This is akin to court packing, since the goal is the same: to appoint a majority of justices that support the political and ideological goals of those seeking reform.

The major difference is that the court-packing proposals in the United States have received little attention. The debate has been largely academic. In Israel, on the other hand, the proposed reforms have led to some of the largest and most divisive demonstrations in Israeli history.

Why the difference? The public outcry against the proposed reforms in Israel reflect a deeper dissatisfaction with the current Israeli right-wing government. Many who strongly oppose these proposed reforms also strongly oppose Benjamin Netanyahu, and his Likud coalition. It is different in the United States where the Democratic Party controls the White House and the Senate.

The point is that judicial reform, whether in the United States or in Israel, is not the kind of issue that generally incites the public and provokes angry demonstrations. It is largely a symptom of a deeper dissatisfaction with those in charge. Israel is a parliamentary democracy, and such democracies do not have the kind of separation of powers that the United States has. Separation of powers diffuses protests, because each major party controls some branches. In the United States the Republican Party controls the House and the Supreme Court, whereas the Democratic Party controls the Senate and the executive. In Israel, Netanyahu’s right-wing coalition controls both the executive and legislative functions, and now seeks to take more control over the judiciary.

Judicial reforms, if it is to occur, should be based on solving long term institutional problems, not on the partisan desire for immediate changes in judicial outcomes. But the tragedy is that in the U.S. and Israel — which are deeply divided politically and ideologically — both sides want to achieve their immediate goals, without much regard for future implications.