Israel’s Basic Conflict

Marbury vs. Madison is probably the most important ruling the Supreme Court ever made. It was the first time the court exercised “judicial review”, the ability of a federal court to declare a law unconstitutional. It’s odd in a way, since the court’s 1802 decision amounted to one branch of government unilaterally deciding it had control over the actions of another branch, i.e. Congress, even though there’s nothing in the Constitution that gives the judiciary that power.

Israel’s Supreme Court decided its own version of Marbury vs. Madison in 1995. The country has never had a written constitution, but it does have what are called “Basic Laws”. One of these laws declares that every Israeli citizen (whether Jewish or Arab) has certain fundamental rights. After the passage of the Basic Laws, the Supreme Court ruled that it could annul laws or parts of laws that violated those rights. In other words, the court gave itself the power of judicial review. Not everybody in Israel agrees with that decision.

Earlier this year, Prime Minister Netanyahu proposed legislation that would give Israel’s parliament, the Knesset, control over the appointment of judges, limit the Supreme Court’s ability to void legislation through judicial review, and override the court’s decisions. Opposition to this legislation led to massive protests all around the country.

This is from an interesting article in The New York Review of Books by Joshua Leifer:

Together, the … Basic Laws defined Israel as a “Jewish and democratic state.” This phrase appears nowhere in Israel’s 1948 Declaration of Independence…. The adoption of the “Jewish and democratic” formulation was part of an effort by Israeli leaders to shore up the ethnically exclusive character of the state as Israel entered the negotiation process that would culminate in the signing of the Oslo Accords. But for [the president of the Supreme Court], these Basic Laws also inaugurated the process of trying to harmonize Israel’s Jewish character and its putatively liberal-democratic commitments…. 

The 1995 Supreme Court decision in United Mizrahi Bank v. Migdal Cooperative Village …  created a legal means by which human rights could trump prerogatives of Jewish supremacy and state security. While this decision did not spark widespread outrage right away, with each ruling that struck down government policies in the name of democracy or human rights, right-wing hostility to the court increased….

For instance, the court provoked objections from the right when it ruled that Israel’s security services could not use physical torture—a decision that was substantively reversed in two cases in 2017 and 2018—or when it required that the Israeli military governor in the occupied territories change the location of the West Bank separation barrier to protect Palestinian private property rights. For Palestinian and human rights advocates, such interventions by the court have themselves been inadequate, because they left the infrastructure of the occupation intact and preserved laws that privileged Jews over non-Jews. In the right-wing imagination, however, the court … now appeared as a threat both to Israel’s security and to its Jewish character.

… The right insists that [the court’s] actions were their own judicial “coup”—a usurpation of the sovereign will of the people as expressed in legislation passed by the Knesset—and rejects the notion that the values of human dignity and democracy should ever win out over Jewish supremacy and state security. In fact, for much of the Israeli right, it has become anathema to suggest that the power and position of the Jewish majority have any limits at all….

Yair Lapid [a more centrist Israeli leader] has declared that it would not be sufficient simply to stop the right-wing coalition’s judicial takeover. “We don’t need to put a bandage on the wounds but rather properly treat them,” he said in an address after Netanyahu announced that he would pause the judicial overhaul legislation to allow for negotiations. “We must sit together and write a constitution based on the values of the Declaration of Independence.”

In the days since the legislative pause went into effect, a large segment of protesters has continued to return to the streets weekly, many chanting, “No constitution, no compromise.” Their argument is that without a constitution that formally establishes the relationship between the judicial and legislative branches and explicitly guarantees the civil liberties they fear the right aims to extinguish, Israel will remain vulnerable to future efforts to consolidate power over the political system and transform it into something like Viktor Orbán’s “illiberal democracy” in Hungary.

But because the renewed calls for a constitution contain no reference to the occupation and barely acknowledge discrimination against Israel’s Palestinian citizens, they have taken on an absurd cast. Lapid himself has insisted that he rejects a “state of all its citizens”—in other words, one that would guarantee equality to its inhabitants. He [and others] have consistently refused to treat Palestinian citizens as political partners…

Were a constitution along Lapidian lines to be written, it would need to be explicitly undemocratic and inegalitarian; it would enshrine as a constitutional value the discrimination against non-Jews that, according to the NGO Adalah, already appears in more than sixty-five Israeli laws—as well as in the now-infamous Nation-State Law, which was passed with the status of a Basic Law in 2018. The potential constitution might well begin [with the preamble to a proposed constitution in 1948] “WE, THE JEWISH PEOPLE.

Writing any kind of constitution will, in other words, be no easier now than it was in 1948. The divisions between secular liberals and Orthodox traditionalists on matters of synagogue and state are perhaps felt even more intensely today than during the early years of Israel’s history. Then, secular Jews constituted an overwhelming majority, but rapidly shifting demographics mean that traditionalist and Orthodox Jews are now set to supplant them.

The protests draw some of their sense of desperation from the fear that the secular Israel of old is disappearing. More significantly, though, writing a constitution that does more than simply consecrate the current situation will still mean making the choice that confronted the state’s founding generation: between a genuinely democratic state and one that constitutionally upholds Jewish supremacy.

To start, any serious constitution must ask what the borders of the State of Israel are. Defining its territorial boundaries would require either formally annexing the West Bank or officially designating the settlements as outside Israeli sovereignty. A constitution would also need to define the status of all the Palestinians living under Israeli control. Either the constitution would grant them full equality—and therefore set in motion the dismantling of a vast apparatus of discrimination and unequal land distribution laws—or it would make Israel a de jure apartheid state, not just a de facto one.

Today no centrist or center-left Israeli Jewish leader is prepared to entertain such choices. Yet the right has its own vision for making them. After dismantling the judiciary and eliminating any checks on Jewish majority rule, it aims to annex the West Bank, legally formalize the apartheid regime over the Palestinians living there, and expel those who resist their permanent subjugation.

Some American observers have compared the situation in Israel to the ongoing debate among left-liberal legal scholars in the United States about the drawbacks of judicial politics, especially after the Dobbs decision: Has relying on the Supreme Court instead of the democratic process hampered the implementation of progressive policies? But if there is any parallel it is not to contemporary America but to the US in the years preceding the Civil War. Then in the United States as in Israel now, the country was divided over who was entitled to fundamental rights and what its founding documents meant—or in Israel’s case, what it means to lack them.

There the parallel stops. While the settler right seeks (as the proslavery camp sought) to solidify a constitutional order premised on the supremacy of the ethno-racial majority, the prodemocracy camp has embraced no call for equality comparable to that made by the American abolitionists. The protesters are largely content with Jewish supremacy as long as it protects liberal freedoms for Jews. What they seem to want is to maintain both the material benefits of that inequality and the self-comforting illusion of democracy.

Requiem for the Supreme Court

That’s the title of an article by Linda Greenhouse, the longtime observer of the Supreme Court for the New York Times. She writes:

They did it because they could.

It was as simple as that.

Greenhouse is no firebrand, but she concludes that the Court’s reactionaries have destroyed “the legitimacy of the Court”.

The title of Jill Filipovic’s article for The Guardian is “It’s time to say it: the US supreme court has become an illegitimate institution”. She writes:

As of 24 June 2022, the US Supreme Court should officially be understood as an illegitimate institution – a tool of minority rule over the majority, and as part of a far-right ideological and authoritarian takeover that must be snuffed out if we want American democracy to survive.

On Friday, in Dobbs v Jackson Women’s Health, the supreme court overruled its nearly 50-year precedent of Roe v Wade, the 1973 case that legalized abortion nationwide. It is difficult to overstate just how devastating this is for pregnant people, for women as a class and for anyone with even a passing interest in individual freedom and equality.

But it’s also devastating for those of us who care quite a bit about American democratic traditions and the strength of our institutions. Because, with this ruling, the Supreme Court has just signaled its illegitimacy – and it throws much of the American project into question. Which means that Democrats and others who want to see America endure as a representative democracy need to act.

Of the nine justices sitting on the current court, five – all of them in the majority opinion that overturned Roe – were appointed by presidents who initially lost the popular vote; the three appointed by D____ T____ were confirmed by senators who represent a minority of Americans. A majority of this court, in other words, were not appointed by a process that is representative of the will of the American people.

Two were appointed via starkly undemocratic means, put in place by bad actors willing to change the rules to suit their needs. Neil Gorsuch only has his seat because Republicans, led by Mitch McConnell, blocked the ability of Barack Obama to nominate Merrick Garland – or anyone – to a supreme court seat, claiming that, because it was an election year, voters should get to decide.

And then D____ T____ appointed Amy Coney Barrett in a radically rushed and incomplete, incoherent process – in an election year.

And now, this court, stacked with far-right judges appointed via ignoble means, has stripped from American women the right to control our own bodies. They have summarily placed women into a novel category of person with fewer rights not just than other people, but than fertilized eggs…. After all, no one else is forced to donate their organs for the survival of another – not parents to their children, not the dead to the living. It is only fertilized eggs, embryos and fetuses that are newly entitled to this right to use another’s body and organs against that other’s will; it is only women and other people who can get pregnant who are now subject to these unparalleled, radical demands.

This raises a fundamental question: can a country be properly understood as a democracy – an entity in which government derives its power from the people – if it subjugates half of its population, putting them into a category of sub-person with fewer rights, freedoms and liberties?

The global trend suggests that the answer to that is no. A clear pattern has emerged in the past few decades: as countries democratize, they tend to liberalize women’s rights, and they expand abortion and other reproductive rights. Luckily for the women of the world, this is where a great many nations are moving.

But the reverse is also true: as a smaller number of countries move toward authoritarian governance, they constrict the rights of women, LGBT people and many minority groups. We have seen this in every country that has scaled back abortion rights, reproductive rights, and women’s rights more broadly in the past several years: Russia, Hungary, Poland, Nicaragua and the United States.

The same week that the Supreme Court issued its decision in Dobbs, the US House of Representatives has been holding hearings to inform the public about what actually happened during the attempted coup of 6 January 2021, and to ideally hold perpetrators, traitors and seditionists to account. We are only a year and a half past that disgraceful day, when an angry mob decided that they, an authoritarian, patriarchal, white supremacist minority, should rule – that any other outcome, no matter how free and fair the election, was illegitimate.

The Supreme Court decision stems from that same rotted root: the idea that a patriarchal minority should have nearly unlimited authority over the majority. The [reactionaries] on the court rightly understand that individual rights and women’s freedoms are incompatible with a system of broad male control over women and children, and a broader male monopoly on the public, political and economic spheres.

But that authoritarian vision is also incompatible with democracy.

And so Democrats now have a choice. They can give speeches and send fundraising emails. Or they can act: declare this court illegitimate. Demand its expansion. Abolish the filibuster. Treat this like the emergency it is, and make America a representative democracy.

Remember the 9th Amendment: The Legal Basis for Roe v. Wade

The first ten amendments to the US Constitution are known as the Bill of Rights. We’ve all heard of the 1st amendment (free speech, separation of church and state, etc.), the 2nd amendment (we can own muskets in case the British come back) and the 5th (what you can “take” when they ask you an embarrassing question). But hardly anyone knows about the 9th amendment. We should though, because this is what it says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This amendment made obvious sense, since it would have been impossible for the authors of the Constitution to list every right people have (e.g. the right to brush your teeth, the right to hold stupid opinions, the right not to watch college basketball in March). And some obvious rights are hardly worth mentioning, like the right to make important decisions for yourself or the right to privacy in the conduct of your daily affairs.

Yet certain members of the Supreme Court, all of whom went to law school, are forgetting about this particular amendment (even though it’s been around since 1789).

I have no legal training. I haven’t read the 1973 opinion in Roe v. Wade or the 1992 opinion in Planned Parenthood v. Casey, the two principal cases in which the Supreme Court decided that women should usually be able to end their pregnancies. I haven’t read this week’s draft opinion in Dobbs v. Jackson Women’s Health either. That’s the opinion that will overturn Roe and Casey if it becomes official. It’s also the opinion that would theoretically allow a future Congress to make abortion illegal in the whole country.

Yet most people would agree that if a woman can find a doctor who’s willing and able to perform a recognized medical procedure and the woman has the necessary health insurance or can afford to get it done, whether or not she has the procedure is nobody else’s business. Whether that’s because all of us have a right to privacy, a right to make important decisions for ourselves or a right to control our own bodies doesn’t make any difference. None of this should be controversial.

The five most reactionary Catholics on the Supreme Court apparently think it is. They don’t see any mention of abortion in the Constitution. They don’t see any specific reference to personal privacy. On that basis, they think it’s fine for the government to interfere with a woman’s decision to end her pregnancy.

But I’m wondering why the hell a woman shouldn’t be allowed to end a pregnancy if she wants to.

The only reasonable basis for controversy is that fertilized eggs often turn into fetuses and fetuses often turn into babies. It’s “often”, because maybe two-thirds of fertilized eggs don’t result in a birth (one study says it’s more like 50%, but it’s still a significant percentage). That’s not because of abortions; it’s because of the vagaries of human physiology. Pregnancy is a complex process and things often go wrong.

But assuming all goes well, pregnancy usually lasts around 40 weeks (the normal range being between 37 and 42 weeks). There is no point at which a fetus officially becomes a “baby”; doctors call it a “fetus” until it’s born. But doctors typically consider 24 weeks to be the point of potential viability, when an infant can theoretically survive outside the womb. Sadly, for “extreme pre-term” infants, survival isn’t guaranteed at all.

There was no way in 1973 for the Supreme Court to set an exact limit on when abortions are allowed. The only question was where to put the rough limit. They didn’t want to make it too soon or too late. Too soon would interfere with a woman’s right not to become a mother. Too late would interfere with an imminent birth. So the majority on the Court decided that women have a right to end their pregnancy until the fetus can survive outside the womb. Medical science said that this “potential viability” occurs after 24 to 28 weeks of pregnancy.

The Los Angeles Times quotes a law professor who points out that when Roe v. Wade was decided, “there was no Republican-Democrat divide on abortion. In a poll taken shortly before [the decision], 68% of Republicans and 58% of Democrats said the decision to have an abortion should be made by a woman and her physician” (the Democratic percentage was probably lower because Catholics tended to be Democrats back then).

So, after Roe v. Wade, states made laws allowing abortions before viability; some more conservative states specified 20 weeks. Today, according to the Kaiser Family Foundation, “abortions at or after 21 weeks are uncommon, and represent [only] 1% of all abortions in the US”. According to US News, 94% of abortions are performed at or before 13 weeks.

Unfortunately, Roe v. Wade was the catalyst for the Christian Right to get involved in politics. They got organized and argued that a fetus has a right to be born, even if it’s a day old. They have the right to hold that opinion (see the 9th amendment). The issue is whether that opinion should be made into law. If they really think all fetuses are people and all abortions are murder, all abortions should be illegal. Whether the woman was raped shouldn’t be an exception. Whether she was made pregnant by her brother or father shouldn’t be. Not even the mother’s life should be an exception, since, given the choice between saving the life of a mother and her baby, most of us would want the baby to survive.

If you take the 9th amendment seriously, however, we all have rights not mentioned in the Constitution. Among those rights are the right to privacy as we go about our lives, the right to control our bodies and what’s inside them, and the right to make our own decisions. Rights do conflict, but there’s no doubt that we should be free from government interference most of the time. Getting pregnant is a normal part of women’s lives. Deciding not to be pregnant is also normal. Seeking and receiving the kind of care modern medicine can provide is normal as well. The government should try not to interfere in such cases. The five most reactionary members of the Supreme Court — all of whom claim to love freedom — should understand that and leave Roe v. Wade alone.