…and the Senate put itself in charge of the Judicial branch. Anything the President could do to offset either power grab is checked by the Senate. We need to stop pretending that the Presidential election is the most important.

This major questions doctrine, at least as it is understood by the Court’s current majority, emerged almost from thin air in the past several years. And it has been wielded almost exclusively by Republican-appointed justices to invalidate policies created by a Democratic administration. This doctrine is mentioned nowhere in the Constitution. Nor is it mentioned in any federal statute. It appears to have been completely made up by justices who want to wield outsize control over federal policy.

I’d be fine with a Presidential Review of the Supreme Court every four years offset by two years of the Presidential election. This would allow a President to replace members of the Supreme Court with a simple majority of the House and Senate as part of the conformation of a new judge. The President would have to justify the replacement for criminal or ethical reasons confirmed by both houses of Congress.

This is going to be uncomfortable to say but I feel that it is crucial that it be said.

In case you were not aware of the situation in Israel right now, the state is on the brink of civil war. This is not hyperbole. The situation that ultimately boiled over to cause this is in a narrow certain sense a mirror image of what’s happening in the US. The conservatives have gotten hold of the executive branch whereas the supreme court, while officially neutral, acts as a bulwark of liberalism. As a result, conservatives have raised many of the same frustrated points that US liberals are raising now: “How dare the judiciary put itself above the executive branch? Vox populi vox dei”. Under this banner they justify a ‘judicial reform’ which will do just that and, bluntly, put the government above the law.

I implore you not to reach the conclusion that there is something wrong with the judiciary having oversight over the executive branch – that because the government is democratically elected, it therefore must be the case that putting the government above the law will result in maximum democracy. This “maximum democracy” is precisely what they have right now in Hungary and Poland, and its ultimate end result is what they currently have in Russia and China. A strong, independent judiciary is necessary to keep the executive branch in check and make sure it doesn’t abuse its power to take control of the media, the electoral process, the state’s functioning institutions, to secure more power and act with destructive impunity. An oft-mocked hypothetical question in the Israeli public discourse today, which is also a completely valid argument, goes: “If the government forces through a law that all gingers be executed tomorrow, what then? Who will put a stop to it?”. A strong, independent judiciary is the only possible answer. “The people” cannot and will not keep a rogue populist government in check. Again, look to Hungary and Russia.

Now, this does not mean that you have to be content with the current state of the US supreme court, and meekly accept what it does and the values it stands for. I certainly don’t. Indeed, in Israel too, there have been many voices over the years which have called to temper the supreme court’s perceived political activism, and the previous (much less extremist) government contained several non-populist elements which successfully advocated for “their candidates” to reach the supreme court. Maybe the required reform in the US supreme court should be different and could be achieved by different means than this, but please, don’t follow Israel off this cliff, don’t fall in love with the notion that a strong judiciary is a burden on democracy. The opposite is true.