Turning Point USA founder and podcaster Charlie Kirk likes to say that the United States and Israel are the two nations on Earth founded upon Judeo-Christian principles. Unfortunately, in recent years our two nations have arrived at a new commonality – namely juristocracy, which is supreme rule by an unelected, unaccountable judiciary that has seized powers normally exercised by the executive or legislative branches of government.
This concept first came to fruition in Israel where, some three decades ago, then-Supreme Court Chief Justice Aharon Barak arrogated to his court the power to overrule any action taken by the cabinet or the Knesset – and I mean any action, whether administrative, ministerial, or legislative, to the point of denying the Prime Minister permission to hire or fire government officials. Moreover, the court essentially abolished the requirement for legal standing. Whenever the government does anything the Left disagrees with, any private citizen, whether affected by the action or not, can appeal to the Court, which generally summarily overrides whatever the State has done.
Furthermore, Attorney General Gali Baharav-Miara, who supposedly serves the cabinet, is actually working with the Supreme Court to force Netanyahu from office, using the excuse that requiring him to testify three days a week in a frivolous lawsuit in the middle of a war renders him unable to fulfill his duties. It probably won’t be long before she demands his resignation. The Prime Minister would like to fire her for exceeding her authority, but since the Court has slapped down his attempt to fire the head of the Shin Bet, Israel’s security service, for the latter’s role in enabling the debacle of October 7, Netanyahu is unable to act. Matters have reached the point where I’m tempted to say, only partly in jest, that before long Netanyahu will have to raise his hand and ask permission from the Court to use the restroom.
At this point, one could raise the objection that in the centuries between Joshua and King Shaul, Israel was ruled by judges – but the similarity with the present extends only to their titles. The original judges were Divinely appointed men and women (recall Devorah the Prophetess) of unquestioned character, beginning with Othniel ben Kenaz, the half-brother of the Prophetess Miriam’s husband, the faithful spy Calev, and even Shimshon (Samson), who had a fatal attraction for Philistine women, came through in the end when he prayed for the strength to pull down the pillars of the Philistine Temple upon himself, resulting in 3,000 casualties.
The Leftist takeover of the reins of government was aided by the fact that Israel lacks a formal constitution; in its place the country has a set of Basic Laws, which the Supreme Court has added to its jurisdiction. Legal scholars have compared the situation to the U.S. Supreme Court asserting the authority to accept or reject amendments to the American Constitution. Having a written constitution, however, is no guarantee against juristocracy here in America.
The procedure currently in fashion, commonly referred to as lawfare, is that whenever the President issues an executive order – even to deport criminal illegal immigrants – some Leftist nongovernmental organization (NGO) promptly appeals to a cherry-picked Leftist federal district court judge, who immediately issues a nationwide injunction preventing the order from taking effect anywhere in the U.S.A. The administration then has to appeal to the Circuit Court of Appeals, which takes its time before generally agreeing with the District Court. For example, the Fifth Circuit Court of Appeals, sitting en banc (i.e., with all its judges rather than a three-judge panel) upheld in a 9-9 tie vote the district court’s dismissal of a lawsuit against the Austin Independent School District by a student who allegedly was bullied for three years by students, teachers, and even principals after wearing a MAGA hat on campus.
From the Circuit Court of Appeals, the case goes to the Supreme Court, if it decides to accept it (shades of Mission Impossible), where there is a danger that Chief Justice Roberts will seek to protect the Court by not ruffling the feathers of the Left, while Justice Amy Coney Barrett apparently has been so intimidated by threats to her family from the Bolshevik hoodlums who control the big city streets of America, including Washington, D.C., that she is terrified of ruling against the Left. As Tony Seruga posted on X on March 9:
It is becoming very obvious Justice Amy Coney Barrett is also compromised out of fear for her and her family. After Justice Brett Kavanaugh’s potential assassin was caught, Justice Amy Coney Barrett lost it. Many thought she was about to resign. She was genuinely scared to death. The Biden Admin and dem Senators ignored Justice’s pleas for help. Protesters were allowed to get very, very close to Justice’s [sic] homes. This was intentional. [I could make a case that the honorable course for Justice Barrett indeed would be to resign, since she is apparently – and understandably – too frightened to judge objectively.]
And if you don’t seriously believe these judges are scared to death to rule against the administrative and intelligence states, you’re simply not paying attention. Look at what happened to SCOTUS Justice Brett Kavanaugh, on June 8, 2022: Nicholas Roske traveled to his home with zero difficulty, with plans to break in Kavanaugh’s home, kill him, and then commit suicide.
They and their families are being intimidated daily.
Even the Senate Majority Leader, Chuck Schumer, threatened the court, with zero repercussions. “You have released the whirlwind, and you will pay the price,” the senator from New York said of SCOTUS Justices. [Which is why I think of him as Don Carlo, the Godfather of the Senate.] And, when protestors began harassing Justices at their homes, pretty much NOTHING was done.
Thus, in many cases there may be a 5-4 Supreme Court majority to forbid the administration’s action, much as in the 1930s when two Republican-appointed Supreme Court justices were intimidated into voting to uphold the New Deal after having the audacity to declare the National Recovery Act (NRA) unconstitutional. Even more alarming, the American Civil Liberties Union (ACLU) has filed an emergency petition on behalf of an illegal immigrant deported under the Alien Enemies Act, calling on the Supreme Court to issue an advisory opinion as to what would be sufficient procedural notice in cases that have yet to be heard in any lower court. In doing so, the Court would thereby be exceeding its Article III powers, which has never been done going back to Chief Justice John Jay declining to advise President George Washington about the interpretation of treaties.
Parenthetically, the Leftist-Islamist alliance can be remarkably persuasive outside as well as inside the courtroom, such that since the atrocities of October 7, American public opposition to Israel has doubled. At the same time, the national rabbinical organizations of Reform, Conservative, and Reconstructionist Judaism have endorsed a letter formulated by former J Street press secretary Amy Spitalnick, who runs the Jewish Council for Public Affairs, stating (as quoted by Daniel Greenfield in Front Page Magazine): “We unequivocally condemn the exploitation of our community’s real concerns about antisemitism to undermine democratic norms and rights, including the rule of law, the right of due process, and/or the freedoms of speech, press, and peaceful protest,” and warning that “escalating federal actions have used the guise of fighting antisemitism to justify stripping students of due process rights when they face arrest and/or deportation, as well as to threaten billions in academic research and education funding.” In effect, non-Orthodox Jewish organizations concur with Harvard and Columbia that Hamas supporters inciting assault against Jewish students and faculty is protected free speech, which Greenfield rightly regards as a betrayal of American Jews.
To summarize, both in America and in Israel, the Left, unable to win a majority at the polls, has figured out a strategy to maintain control of the government. How? By using the judiciary to obstruct the executive and legislative branches, and thuggery to control the judiciary. In Israel the situation is especially difficult; since the 1950s, whenever a justice reaches the mandatory retirement age of 70, the Supreme Court selects a successor using an electoral system that gives the remaining justices veto power, thereby assuring a permanent, self-perpetuating Leftist supermajority. The Knesset has tried passing modest reform bills to remove the veto, only to have them rejected by the Court. And if the Netanyahu government tries to ignore the Court’s orders, it can expect serious legal consequences. Not being an expert on the Israeli legal system, I can’t say what recourse, if any, is available.
As for America, the Trump administration had an intriguing idea: to issue a directive to federal agencies requesting that judges require financial guarantees from activist groups suing the government. As James Conrad writes in Patriot Journal, “The memo instructs federal agencies to coordinate with Attorney General Pam Bondi to invoke Federal Rule of Civil Procedure 65(c). This allows courts to require financial guarantees from plaintiffs equal to potential costs the government would incur from wrongly issued injunctions.” (More than 170 lawsuits have already been filed to block elements of the Trump agenda.) Since an increasing number of federal judges, like other federal employees, consider their primary duty to be resisting Trump, such requests are unlikely to be granted, and even if they are, George Soros and his Billionaire Corps can easily advance the money for such guarantees out of petty cash.
All things considered, my expectation is that the Left will continue trying to run both America and Israel using a combination of lawfare and a sympathetic judiciary. Even if the U.S. Supreme Court ultimately decides in the President’s favor, the time delays caused by an overload of lawsuits will make it difficult for him to govern.
