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Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.
The U.S. Supreme Court will come back into session in a couple of weeks, and it will again be making politically charged decisions on whether laws passed by Congress are allowed by the Constitution.
Such decisions are among the most controversial it makes. They give the court a power greater than Congress, which makes the laws. This is the power of “judicial review.” When the court’s decisions appear excessively partisan, it looks more legislative than judicial. Anger with it may run high, leading to proposals to “pack” it by adding more justices.
As the U.S. Supreme Court gets under way, the world is already being treated to an open national battle over judicial review. Crowds of demonstrators have taken to the streets of Israel. This week, its Supreme Court began hearings on a legislative attempt to reduce its review powers.
The Israeli court has assumed the responsibility for making final judgments about whether laws are constitutional, just as has the U.S. Supreme Court. In 1803, the justices here decided that they alone could say “just what the law is.” That way, their dying political party could shape the law even after congressional control had gone to the opposition.
In Israel, the government, under pressure from some parties that provide it enough support to stay in power, wants to give the Israeli legislature — the Knesset — the last word on what the laws are. Israel has no constitution, and its Supreme Court has protected its “basic laws,” deciding if new laws meet a test of “reasonableness.”
The government’s logic is that the Knesset, an elected body, should determine the law and not a court composed of appointed judges, some of whom have been on the bench far longer than the current government. After all, the legislature reflects the people’s will, it claims, not the judges.
Even if that logic may seem sensible, it infuriates a lot of Israelis. Many Americans might agree. They worry that democracy itself is likely to be threatened when the court’s moderating hand is taken off constitutional decisions. Of course, they may simply prefer a court they see as a partisan ally.
Foreign governments usually try to stay out of the internal affairs of other nations, but the U.S. has expressed concern about changes in Israel that could lead to complete control of the law by a bare majority of the 120-member Knesset. It would also pick the judges.
Yet Israel’s proposed form of judicial review is not unique. It is called “parliamentary sovereignty.” It exists in several democratic countries, including the United Kingdom. With no written constitution as a reference, the U.K. Supreme Court usually rules that laws passed by Parliament must be enforced and may overrule earlier laws or court decisions.
The U.S. system is based on the court alone deciding what the written Constitution means and if Congress has acted in line with that meaning. The last word comes from nine appointed justices and not from the legislators who make the laws.
The U.S. Supreme Court can be as politically slanted as the Israeli courts, because its majority may be named and approved by members of a single party even if congressional control has later shifted to the other party. That’s how today’s Republican-appointed court majority overturns laws earlier passed by Democrats, even if once approved by the court.
When the court reverses its views thanks to the appointment of new justices, it looks like a partisan legislative body rather than a neutral and nonpartisan panel operating above the political battles. As it increasingly appears to be an uncontrolled political player, it loses popular respect.
A possible solution could be to couple judicial review with oversight by the lawmakers in Congress. Without eliminating judicial review or undermining confidence in the court, Congress has the ability to modify review, strengthening the checks and balances that are supposed to exist among branches of government.
The Supreme Court’s constitutional decisions could have to face congressional review. Congress would vote on whether to overrule the court. If it did, the court’s decision would be suspended and a second vote would be required following the next congressional election. The possibility of a presidential veto might make necessary a veto-proof, two-thirds majority vote.
This procedure would introduce legislative involvement, but it would go less far than the British system. It might bring the voters themselves into the process of deciding if a law is constitutional.
Even if court decisions were not reversed, the process would focus attention on it. The court would become more accountable, and judicial partisanship might be reduced.
The time has come to begin talking about how unchecked judicial review undermines checks and balances. The court’s role should be part of the political debate. Otherwise, unlimited political power will keep moving toward a court majority of five unelected justices.