Israel is not the only country with a Supreme Court crisis
That two countries long considered as bastions of democracy are facing crises involving their Supreme Courts is, if not unprecedented, at least dangerous. Israel today faces the more extreme challenge to its democracy, with a series of bills before its parliament, the Knesset, that would strip its Supreme Court of its power to decide important issues facing the country and leave those decisions entirely in the hands of lawmakers. One bill would change the way justices are appointed, effectively giving the government, and whichever political party controls it, an automatic majority on Israel’s nine-member Judicial Selection Committee, which makes judicial appointments. The other bill would allow the Knesset to override any Supreme Court decision with a simple parliamentary majority of 61 votes. Both bills would amend Israel’s so-called “basic laws” making them equivalent to constitutional amendments in this country.
The move in Israel to strip its Supreme Court of power is being driven by Prime Minister Benjamin Netanyahu and his arch conservative government now controlled by far-right ultra-orthodox Jewish political parties. There is a personal aspect driving the push to politicize the courts in Israel. Netanyahu is facing indictments for taking bribes from wealthy businessmen to grant them favors with respect to government regulation and favorable consideration of laws that would harm Netanyahu’s donor’s business competitors. One charge Netanyahu faces involves a bribe he offered to a candidate for Attorney General to drop a case against his wife. The indictments against Netanyahu have been in court proceedings since 2019. If the bills involving the Supreme Court were to pass, they would effectively give Netanyahu judicial immunity from prosecution given that his political parties could negate any judgement against him from the Supreme Court.
The crisis over the Supreme Court has reached deep into Israel’s society with demonstrations in the streets of Tel Aviv numbering in the hundreds of thousands. It also threatens the loyalty and obedience of its armed forces, considered essential to the country’s survival. Recently, more than 250 officers from Israel’s Military Intelligence Special Operations Division signed a petition saying they would not show up for duty if the proposed changes to Israel’s governmental structure and powers go through. Other military officers in Israel’s Air Force, Armor battalions, and the submarine division of its Navy have signed similar letters. Several recent chiefs of Israel’s Mossad intelligence agency have denounced Netanyahu’s drive toward what they call authoritarianism. One of them, Danny Yatom, explained that Israel’s military officers “signed an agreement with a democratic country. But the moment that, God forbid, the country becomes a dictatorship, an illegitimate government, then I believe it would be legitimate to disobey it.”
In this country, the threat to the Supreme Court is not as cut and dried, but the politicization of the court by Donald Trump, who appointed three right-wing jurists to the court giving its conservative wing a 6-3 majority, has threatened the court’s legitimacy. Yesterday we got a good look at the results-driven push by the court’s majority in the way it considered two cases filed against the Biden administration’s recent decision to forgive student debt held by tens of millions of college graduates.
Biden cited the HEROES Act, passed in 2003 after the terrorist attack on Sept. 11, 2001, as the legal justification to forgive student debt. The act gives the Secretary of Education the power to protect borrowers affected by “a war or other military operation or national emergency,” allowing the department to “waive or modify any statutory or regulatory provision” influenced by the emergency. The Trump administration declared the COVID pandemic a national emergency and put a pause on the payment on student loan debt, costing the government about $100 million a year in lost interest payments. The Biden administration modified that order by forgiving $10,000 in student debt for borrowers earning less than $125,000 a year or $250,000 per household, and $20,000 in debt for those who received low-income Pell Grants. There are about 26 million borrowers with about $400 million in student debt, 19 million of whom have applied for and been granted relief, awaiting the Supreme Court’s decision on the matter.
Six conservative so-called red states sued to stop the debt forgiveness, along with two debtors who did not qualify for debt relief for different reasons. They are represented by a conservative legal foundation that has previously sued to stop affirmative action and other programs the foundation considers too liberal. The law suits were rejected by multiple federal courts around the country on various grounds, the main one being the legal “standing” of the plaintiffs to sue. Five states joined Missouri in suing on a technical matter involving Missouri’s Higher Education Loan Authority, which is tasked with handling loan forgiveness in the state. The problem with the loan authority, according to the government’s case defending the Biden program, is that it is incorporated separately, is not part of Missouri state government, and did not join the lawsuit seeking to overturn the loan forgiveness itself. In other words, the states suing were completely separate from the program and would not suffer damages if the program of loan forgiveness is allowed to continue.
The two individuals suing the Biden administration have similar problems of standing. One sued because she took out student loans from a private lender and not the government, thus her loans do not come under the loan forgiveness program. The second plaintiff sued because he does not have a Pell Grant and is thus eligible for only $10,000 in loan forgiveness rather than the $20,000 given to holders of the low-income Pell Grant. So, because the plaintiffs would have suffered individual losses of $10,000 in debt forgiveness in each case, they want the entire loan forgiveness program shut down. The “relief” sought by the plaintiffs wouldn’t be any relief at all, because neither is seeking to be restored to eligibility for the debt relief program, instead asking the court to treat the entire 26 million debt holders as if they were the plaintiffs and deny all of them relief.
Solicitor General Elizabeth Prelogar argued that the debt forgiveness program fit the intent of the Congress when it passed the law allowing relief during national emergencies. She further argued that none of the plaintiffs had shown how they would be harmed by the debt relief program continuing. One of the three liberal Supreme Court justices pointed out that the courts do not give standing to sue to plaintiffs who cannot show that harm has been done to them, or that a judgement against them would harm them further. If the court cancels the debt relief program benefiting 19 million people, the two plaintiffs will still owe the money, thus they didn’t gain the debt relief they end up denying to millions.
Which is the point with most conservative challenges to laws and programs they don’t like. If we don’t get ours, then nobody is going to get theirs.
The newspapers and cable news shows are today buried in snow drifts of analysis that the conservative justices on the court were “skeptical” of the arguments on the side of the debt relief program. Significantly, most of the analysts didn’t argue that the government’s defense of the program lacked merit, instead they argued that ending liberal programs is one of the aims of the conservatives on the court. In that regard, the analysis is correct. Last year, the court ended the Environmental Protection Agency’s power to regulate carbon emissions because the Congress had not included the word “carbon” in its laws regarding controlling climate change. Similarly, the court ended the Center for Disease Control and Prevention program to impose a moratorium on evictions during the pandemic and ended a program to compel large employers to require that employees be vaccinated or undergo frequent COVID testing.
If the conservative justices on the Supreme Court don’t like a government program, they simply look for ways to end it, even if the intent of the program is to provide relief to tens of millions of people who would benefit from the program.
Netanyahu’s changes to Israel’s “basic laws” will allow a simple one-vote majority of the legislature to overturn Supreme Court decisions. In this country, a simple majority of the Supreme Court can overturn laws passed by the legislature that are intended to benefit broad swaths of the public.
The difference between the two countries is where the one-vote majority resides.
The Israelis are fighting back against Netanyahu and I am glad about that. He and his Likud party are made up of Ultra Orthodox Jews (men)who are, in my opinion, dangerous. These are the same people who have settled in on the West Bank and have caused agony and killings there. I am not saying that the Palestinians are innocent because they’re certainly not. But, Israelis know how corrupt Bibb is. He, like, Fake 45, has many accusations against him about bribery, sexual affairs, his wife, etc. He is hardly an upstanding citizen. This move by he and his crazy group is political suicide and that is how I feel about our SCOTUS. We have 6 conservatives, 3 who are not legitimately there, 1 who is an absolute liar and whose wife is an insurrectionist, and the Chief, who sways where ever the wind blows, as long as his wife is making millions for them. I see similarities, for sure. I would hope that my father, who wanted to move to Israel when he and mom married in 1946, would not have been attracted to the party of crazies but I really don’t know. In Poland, before he escaped to America in 1936, he had been a young Zionist leader. If you have ever read the book, Mila 18 by Leon Uris, you would know that many Zionists and their pals in the Underground, were killed. I read it 10 years after the book was written and I called my dad to tell him I was so sorry about the treatment of Jews and the people who helped them. He recited each character’s name who appeared in the book. I was astonished. He said they were all of his friends.
My allegiance is to anyone who believes in absolute freedom and democracy. I do not care if you are religious or not. If you fight for the rights of others and not get caught up in the mishegas of everything, I like you!
The Israeli situation is obviously a right-wing power grab that benefits Yahoo’s personal corruption. If they ram through the changes then with 61-votes the religious fascists can turn Israel into a dictatorship, purge the country of Palestinians, and others they don’t consider Jewish enough. Israel can’t be a Jewish state and also a liberal democracy. Just as we can’t be a White Christian country and also a democracy.
Our SCOTUS problem has become urgent because *Rump has packed it with just enough right-wing political hacks, instead of jurists, to give it a 6-3 supermajority. The Rethugs, for years, have decried ‘activist judges’, and a liberal SCOTUS as legislating from the bench. Which is exactly what the unqualified political hacks they have put on the bench are doing now. Their goal is to reverse all social progress of the past 60-years. Any SCOTUS with an agenda is very dangerous, as we have already seen in the last year, and also in the past. A one-vote SCOTUS majority made Bush Jr. President in 2000. The SC is in dire need of restructuring, as is the Congress. I doubt I’ll live to see it, but minimum and maximum age requirements, term limits, and court size all need to be addressed, in my view.
In the debt-relief cases before the court now my cynical self thinks the game is already rigged. However, what little is left of my optimistic self thinks, given the great job the Solicitor General did destroying the plaintiffs, that there may be two votes to join the three liberal justices for a 5-4 majority in favor the of student debt relief. Faced with fact, law, precedent, and reasoning, Roberts and Kavanaugh might defy prediction. I’m quite prepared to be wrong. Rather than deciding the case on whether the government should grant debt relief the decision might hinge on who has ‘standing’, which the plaintiffs clearly do not have - at least to my non-lawyer mind.