In recent weeks, U.S. President Joe Biden called the Supreme Court ruling that he lacked the authority to waive student debt “wrong,” adding, “This fight is not over.” When the Supreme Court ruled that affirmative action in higher education is unconstitutional, Biden said, “This is not a normal court.”
“We cannot let this decision be the last word. I want to emphasize: We cannot let this decision be the last word,” Biden added. Vice President Kamala Harris said another recent Supreme Court decision “threatens future progress.”
The Biden administration has often stated that “trust in our democracy and democratic institutions” is essential. “Toxic polarization is increasing across society and Americans’ trust in institutions and in one another is decreasing,” it stated in December 2021.
H.R.3422, the Judiciary Act of 2023, which seeks to expand the Supreme Court from nine to 12 judges, has drawn 63 signatures since it was introduced nearly two months ago. It and the way Biden and Democrats talk about the Supreme Court threaten democratic institutions more than does Israeli judicial reform, which Biden and his administration target frequently.
“Packing the U.S. Supreme Court would do far more to undermine the judiciary than the judicial reforms proposed by Israel,” Alan Dershowitz, the Harvard Law School professor emeritus and prominent litigator and commentator, told JNS.
Zack Smith, a legal fellow and manager of the Supreme Court and appellate advocacy program at The Heritage Foundation, told JNS that the justices which former President Donald Trump appointed to the U.S. high court and the judicial reforms underway in Israel seek to return the systems to interpreting law as written.
“For the past several decades, both courts have been acting as super legislatures,” he said. “In both cases, the political left were getting policy outcomes from the courts when they could not do so through the legislature.”
Smith cited the decision in Dobbs v Jackson, which overturned Roe v Wade after 50 years, as an example of Trump Supreme Court appointees Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett rectifying instances where the court overstepped its bounds and returning decisions to the hands of the legislature.
“In Israel, the Supreme Court has usurped power to a breathtaking extent,” Smith said.
He told JNS that Aharon Barak, the former president of Israel’s Supreme Court, saw Israel’s Basic Laws as a constitution, in a “constitutional revolution” that granted the court unprecedented power to overrule elected government officials.
“The reforms in Israel are meant to bring the court back to its proper role in interpreting the law as it is written and to stop engaging in judicial activism,” Smith said.
‘Doing nothing is not an option’
Sen. Tina Smith (D-Minn.), one of the initial signatories of the legislation that aims to increase the number of Supreme Court justices, told JNS that the court faces “a legitimacy crisis of its own making.”
She said the court faces “numerous ethics scandals” and said its recent decisions “have become dangerously unmoored from any reasonable principles of legal analysis and transparently serve conservative interests.”
“It’s clear doing nothing is not an option,” she told JNS. “We need to reform and expand the court. I am proud to be an original co-sponsor of the judiciary act, which would restore confidence in the U.S. Supreme Court and ensure it reflects our nation’s principles and core beliefs.”
Neither Smith, nor fellow bill co-sponsors Reps. Hank Johnson (D-Ga.) and Adam Schiff (D-Calif.), responded to JNS queries about how their efforts to “pack” the court ought to be seen in light of criticism from Democrats of Israeli judicial reform.
Mark Mellman, a Democratic pollster and founder of the Democratic Majority for Israel, told JNS that the two situations are not comparable.
The U.S. Supreme Court has become “radically interventionist,” according to Mellman. Democrats are pushing to add four seats to the court in light of its recent decisions on abortion and affirmative action, he added.
“The Supreme Court lost legitimacy in the eyes of the American public,” Mellman said.
Unlike in Israel, the U.S. Supreme Court is part of a system of checks and balances, with three co-equal, federal government branches. That makes it harder to pass legislation that is at odds with any of the three, Mellman said.
Mellman said packing the U.S. high court is unlikely.
“My understanding is that President Biden is not supportive of expanding the court,” he said. “This is unlikely to happen without his support.”