Supreme Court Docket & Judicial Backlash to Netanyahu

Welcome to What Happens Next. My name is Larry Bernstein. What happens next is a podcast which covers economics, finance, politics, and sports. And I give the speaker just six minutes to make his opening argument. Today's topic is the US Supreme Court docket and reducing the power of Israel's Supreme Court. Our speakers will be Ilya Shapiro, who is the director of constitutional studies at the Manhattan Institute. And we're gonna hear from Ilya about what happened last term besides Dobbs and what to expect from the Supreme Court. This year's big cases will be on affirmative action, limiting states courts' influence on elections and interstate commerce. Ilya spoke on this podcast previously about free speech. Our second speaker is Eugene Contorovich, who is a professor of international law at George Mason's Law School. And he works with a Colette Policy Forum where he works on legal reforms related to Israel's Supreme Court. Israel's Supreme Court has been flexing its muscles lately and has rejected the Knesset's laws that it feels are unreasonable, including political compromises on the military draft, as well as firing a cabinet minister that had viewed this unqualified because of previous legal troubles. We're gonna hear from Eugene about Prime Minister Beebe Netanyahu who has proposed judicial reforms and the hysteria it triggered in Israel's legal community. There's much to cover, so buckle up. I make this podcast to learn, and I offer it free of charge. If you enjoyed today's podcast, please subscribe from our website for weekly emails so they can continue to enjoy this content. Okay, let's begin with Ilya's opening six-minute remarks. Good to be with you, Larry. So last term, the much advertised, expected, feared, longed-for conservative Supreme Court majority, Co-aleste. After many false starts, misfires, disappointments, going back decades. Richard Nixon pledged in the 1968 campaign to reverse Warren Court activism. Dwight Eisenhower, before him, he appointed Earl Warren and Bill Brennan, who he considered his only two mistakes of his entire presidency. But conservatives will remember this past term as the one when they finally, finally had enough votes to overcome defections. This is five years after Neil Gorsuch was confirmed, the second term with Amy Coney Barrett, and this Republican appointed majority asserted itself. Now, this isn't just looking at the top few cases. The statistics bear this out. Of the term 60 opinions in argued cases, which is actually a very low number, but nevertheless, of the 60, 14 involved a six to three so-called partisan split. And to those, we can add 10, five to four decisions in all of which the three liberal justices stuck together. So we can call 40% of the cases last term ideological, including the big ones on school choice, religion, guns, vaccine mandates, environmental regulation, and of course abortion. Only a quarter of the cases, 15 of them were unanimous. Those are really striking numbers. I have to emphasize, I've been a court watcher for a while, and this is very different from any year since I've been taken a look. Typically the courts unanimously about half the time and their split so-called ideologically, maybe 15 to 25% of the time, and that was reversed this last term. And when you look at those five to four cases, you think, oh, well, that's just John Roberts switching over. But that's not exactly right. In fact, in all three of the five to four cases where the conservatives won, it wasn't Roberts with the liberals. It was Gorsuch with the liberals. In the seven liberal wins, every conservative except Alito moved over with Roberts and Kavanaugh moving over twice. So what all of that numerology it shows is that having a margin of error matters. There's a lot of fluidity and differing approaches to originalism and other history-based modes of analysis on the right. In practice, it comes together to make for stability in the law, whether you like it or not. It's more predictable than what we've seen when we got used to Anthony Kennedy before him, Lewis Powell or San Mateo Conner as kind of the swingboat jump ball. While some liberals say that the sky is falling and they're fear reversal of all of the Warren courts, Groovy civil rights wins of the 1960s, I think really what we're seeing is a stripping of the gaudy legal wallpaper of the Warren Burger 1970s. This also means, to a large extent, this is much less the Roberts court than it's been since Justice Kennedy retired a few years ago. Kavanaugh is still the median justice. He was in the majority 95% of the time. I don't think we can really call it the Kavanaugh court. He hasn't had a signature opinion. And if anything, this was the breakout term for Clarence Thomas, the senior associate justice who wrote the majority opinion in the Second Amendment case. This term, the court is not backing off the gas in terms of blockbuster issues. We have affirmative action, racial preferences and college admissions, the kind of graphic designer be compelled to create a website for same sex weddings, the extraterritorial effects of pig farming regulations and election regulation, always hot and politically salient. What does it mean that Kavanaugh is the median justice? Does his opinion matter more than other justices because he's breaking ties or is it simply a function of the current makeup of the court? It's more a mathematical phenomenon, meaning he's in the majority most of the time, but he's not a swing in the sense that he's not unpredictable per se. It just means he's in the occasional cases where Alito and Thomas peel off to the right, he's still with the middle. Does this mean that Kavanaugh is the most liberal member of the conservative sex? Depends how you define liberal. I mean, Roberts is with the liberals more than Kavanaugh and in the biggest controversial issues, for example, with abortion, it was Roberts who did not join the majority in overturning Roe. He still would have upheld the Mississippi law on narrower grounds, and that's happened a number of times. It's not ideological, I would say. It's more in terms of being cautious. Roberts likes incrementalism or minimalism. Kavanaugh also perhaps does not want to go as far as fast all the time, but that's more pronounced on whether to take cases. They need four votes to take up a case. Some of the bigger controversial ones, he might not vote to do that. What does Roberts think of his role as chief justice and how does it affect his vote in the Obamacare case? Roberts certainly was the man in the middle in the Obamacare case. He's an institutionalist, his big hero is John Marshall to elevate the reputation of the court to keep it out of political fights. I don't think he's been successful in that. Not necessarily because he's not skillful, I just don't think it's possible. And for that matter, it may have backfired because certain of his maneuverings is seen as more nakedly political rather than just a disagreement over how the constitution can be viewed. I don't think he has been successful on his own terms of extricating the court from the larger political discourse. Next topic is the current affirmative action cases with Harvard and the University of North Carolina. In discovery, Harvard admitted to using consistently low personality reviews for Asian Americans to keep their acceptance rates low. How do you think the Supreme Court will rule on this case and will they reject the Bocke decision as part of its ruling? I'm glad you asked me about Bocke because that's the original sin, if you will, of our modern affirmative action jurisprudence. It was an interesting case, the challenge to racial quotas at UC Davis Medical School. Four justices said, no, you can't use race. Four justices said, yes, you can because of the long history of discrimination and one justice, Louis Powell in the middle said, no, I don't buy either of those. I think educational diversity can be a compelling state interest and as long as race is one of many factors, never determinative, yeah, you can consider it to advance that very important interest in educational diversity. And that's why our whole public policy debate for more than four decades now has not been about whether it is just to compensate the descendants of slaves. Instead, it's about diversity. From that seed that was planted by Justice Powell, we have the whole modern tree of DEI offices that enforce all kinds of orthodoxy and it goes beyond just racial preferences and admissions or hiring. At this point, after several iterations and challenges involved in the University of Michigan, University of Texas, there are different ways of using race and different admissions program. I think that point about the downgrading of Asian personalities, even as the qualified numbers of Asians in the overall pool has increased their total rate of admission at Harvard, Princeton, UNC, whatever schools that are selective has not changed. I think the justices is gonna say, there's just no way to do this in a constitutional way. It just stinks too bad. There's no way for practical purposes to satisfy at least the statutory requirement of the Civil Rights Act, if not the 14th Amendment. If the Supreme Court does rule against Harvard in this affirmative action case, I suspect that Harvard will use other means to get to the same result because the admission officers and the Harvard Board want a class that has more blacks and Hispanics and fewer Asians. Will the court anticipate Harvard's actions to undermine the court's decision? Well, in civil rights law, you can't use pretext to achieve the same racial discriminatory goals. If there's massive resistance to a ruling against Harvard, then there's gonna be follow-on litigation about whether something really is just a proxy for trying to use the same old racial characteristics. If, on the other hand, the schools say, okay, we really wanna help the truly disadvantage, not just doctors and lawyers, kids, who happen to be black or Hispanic, we're gonna look at zip codes. We're gonna look at socioeconomics, not just the bare racial characteristic. In fact, we're gonna remove the racial box that you won't be able to check that at all. That's gonna be a closer case. If they do socio-economic preferences, a true diversity, not just rich kids of all different colors, but hopefully different schools will try different things. And we will have follow-on litigation to be sure, as you always do when there's a watershed moment in an important area of jurisprudence. This is not the end, it's perhaps only the end of the beginning. In Justice O'Connor's opinion, she said that the court will reconsider affirmative action 25 years after her opinion was drafted. Is this unusual for the Supreme Court to put a timestamp on this decision? Yeah, that was an odd point of the opinion. O'Connor was the swing vote in the Michigan cases in 2003 that said that you can't use mechanistic methods, quotas for race, that sort of thing, but you can do this holistic one of many factors. Her expectation in 25 years, it would no longer be necessary. We're 20 years later, and we're nowhere near an organic sunsetting of racial preference, if anything, it's expanded. I don't think it'll matter one way or another. I don't think the justice will be like, well, 20 years is close enough to 25, or oh no, it's still okay for another five years. They're not gonna do anything like that. Roberts famously said that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. Do you suspect that Roberts will be the one to write the Harvard opinion? Yes, I think he'll take it for himself. Tell us about the North Carolina election case. There's an issue that comes up with increasing frequency and acrimony around election time, and that's whether there's a federal constitutional violation or remedy for that violation when a state court rewrites state election law that's devised by the state legislature, election law like tort law, criminal law, family law is state law. Congress sets when federal elections are, and there's voting rights act protections that you can't discriminate based on various characteristics. But otherwise, states figure out whether you're gonna be voting on a machine or by hand or pulling a lever. Well, what happens if a state Supreme Court, which is interpreting state law in all of these other areas, interprets state election law in such a way that is just rewriting the law, not interpreting it. Because there's a provision in the Constitution, the election clause that says that the manner of holding elections for senators and representatives shall be prescribed by the legislature of the state. If a court rewrites the law, that's not the legislature writing the law. And if we're concerned about that, how do you draw the line? Maybe the Supreme Court could say, well, regardless of what that line is here, where the North Carolina Supreme Court threw out districting maps because they didn't guarantee fair or free elections under the North Carolina Constitution. That's the basis on which the court throughout the state legislature's work. The strongest argument for the challengers that are going against what the North Carolina Supreme Court did, they invoke what's known as the independent state legislature doctrine, that is that state courts are neither here nor there, unlike with tort law or criminal law or family law, there's actually a federal constitutional provision that says prescribed by the legislature thereof. That means courts don't play a role at all. But that can't be because the governor, after all, plays a role, signs the bill as the governor part of the legislature. If there's a dispute over what the given state law means, do we just let that dispute lie? Somebody has to resolve it. It's courts that resolve it. So I don't think the US Supreme Court is going to buy that wholesale independent state legislature doctrine. But nor are they comfortable with the state court engaging in frolicking detour. The gerrymandering cases, the US Supreme Court ultimately threw up its hands. Maybe they'll do the same thing here, particularly when there's acrimonial re-elections. I hope that whatever the Supreme Court does, it lays out a clear rule so we won't have to argue about whether a state Supreme Court was acting in a part of the manner. The most famous election case of our generation was Bush v. Gore. In that case, the Florida state courts agreed with Gore's lawyers that there could be a recount, but only in the counties that Gore won to find more Gore votes. And the Supreme Court decided that selected recounts of specific counties violated the 14th Amendment. And there was a separate opinion written by Chief Justice Wrenquist and signed by Thomas and Scalia that said that the Florida Supreme Court was making law. And that violated the constitutional rules that only the state legislatures can make the election rules. Without that Wrenquist concurrence, I don't think we'd have this case, because that resurrected the independent state legislature doctrine. I think the point just wasn't needed in Bush v. Gore, because that was an equal protection issue, the idea that you can't have different counties counting in different ways under the circumstances of that case. So it wasn't necessary for other justices to join in front. If five justices joined, that would become the majority opinion. That was not the narrowest way of deciding that case. But certainly that opinion in Bush v. Gore, more than 20 years ago now, was the read on which this case was built. Next up is the pig farming case. Tell us why this case is so critical for interstate commerce. You have an increasing tendency of states issuing regulations that have spillover effects nationwide, particularly big states. If Texas or Florida or New York or California have some sort of regulation, it typically is easier for you to just change your whole process to comply with that. But there's this doctrine that says that states cannot regulate or impede interstate commerce. This is known as the dormant commerce clause. That is, the regular old commerce clause is Congress's power to regulate interstate commerce. Well, what happens if Congress is not regulating in a different area? If states step in and start regulating that. And there's a dispute that crosses ideological lines about what federal courts are supposed to do about that. There's some very strong cases where states are engaged in protectionism. They treat imports from sister states differently than they treat the production of the same commodity from within state lines. That's clearly unconstitutional. But what if there's some regulation that affects the national market but isn't meant to privilege in state actors necessarily? 99.8% of the nation's breeding sounds are outside of California. And yet California, a major market, passed a law, actually, a voter approved proposition to prevent animal cruelty that phased out certain methods of farm animal confinement and would have required larger pens for these breeding sounds. Well, that is cost prohibitive nationwide. Because this regulation has such massive spillover effects, it affects manufacturing nationwide. And moreover, the pork industry is particularly affected because it's hard to trace where the sow was kept under what conditions it might be, raised in one state transported to another, butchered in another. It's hard to trace that sort of thing. And so all sorts of regulatory burdens are imposed by this law. The justices really struggled for this. It's another one where I have a hard time predicting what they're going to do. Justice Gorsuch, for example, he's the one who says that, OK, state protectionism, that's no good. But otherwise, we're going to have an expansive commerce clause. And I don't want Congress to have that much federal power, either. And Thomas joins him on that. Presumably, the progressive justices will decide with California because they want to side with the progressive regulation. If it's Thomas and Gorsuch plus the three on the left, that's five right there. I'm not sure that's exactly how it's going to come out. I think Roberts is going to get together with Kagan, perhaps, and organize some sort of very narrow ruling that doesn't make sweeping claims about the dormant commerce clause. Next case is a criminal conviction of a Cuomo campaign worker who got paid to lobby. Cuomo's campaign manager left government service in Albany formally. He was Cuomo's chief of staff. He became his campaign manager, so employed by the campaign, not by the state government. And while he was employed, he was paid by a developer to help avoid union regulations and Cuomo's campaign manager, Prokoko's his last name, used his old executive office as chief of staff, his phone, his computer. He didn't use government funds or anything like that, but used government facilities. It looks very shady. On the other hand, how do you distinguish that kind of private citizen acting in his personal, if shady, capacity? So this could be a case where it's definitely shady, but hard to make into federal crime. Do you think Prokoko will have his conviction vacated? Probably based on the way that the court has taken up in the context of honest services fraud and the odd bedfellow coalition between the left and the right against the middle. I think it's more likely than not that he and in a companion case developer on the other side of the transaction will probably get acquitted on these charges. I think they were also prosecuted under other state charges. One of Biden's first acts as president was the creation of a commission to look into the Supreme Court for changing life terms and potentially court packing. Whatever happened with that? Well, what happened is what happens with every blue commission report. The president thanks them in an Oval Office ceremony and it gets filed away never to be seen again. It's actually a fascinating report. I wrote my last book, Supreme Disorder, Judicial Nominations in the Politics of America's Highest Court over the Politics of Judicial Nominations. I think it was like a 300 page report. But they did not have any policy recommendations. That was not their charge. Their charge was to evaluate and present the full parameters of the debate over various issues from court packing, expanding for political reasons, to term limits, new ethics rules, new rules for confirmation hearings. But the commission, three quarters of them were liberals. There was never gonna be agreement. The left didn't really agree with what the far left one had let alone the more conservative members. In fact, a couple of the conservative members quit before the final report. We probably won't know why exactly, but clearly there were tensions there. So there were no ultimate recommendations. Certainly after DAWS, the left is not happy and there was a push for court packing. But in the last Senate, Kirsten Sinema and Joe Manchin said, no, we're not gonna break the filibuster to do that. Frankly, I don't think there were even 30 votes in the Democratic caucus to expand the court for political reasons. I think Manchin and Sinema on that issue at least gave cover to a lot of senators who otherwise didn't wanna take that radical step. The filibuster could have been broken for some other reasons, whether voting rights or other things the Democrats care about. But again, at that point, that would be a tough vote. So it's sort of a moot issue for practical purposes. The talk of legitimacy, I think, is overwrought. They haven't found the guy who leaked the DAWS draft. Or girl. Trump recently said that the political reporters should be held in jail till they give up the leaker. It's possible the reporters themselves, Josh Gernstein, had Politico. It's possible that he doesn't know who it is. I mean, this could have been done via burner phone and dead drops. Why didn't they say that? Oh, you don't reveal your sources. How do you think it's gonna play out? Well, investigation wasn't quite as thorough as it could have been. Why didn't Chief Justice Roberts call on the FBI? Because Roberts wanted it to be an internal thing. There's separation of powers issues. You didn't want the executive branch law enforcement looking into this thing. The justices themselves were not interviewed. And apparently there wasn't a full sweep of personal devices, only court issued devices. What about personal phones? Now the affidavit they signed makes clear that if one of the clerks or other staff were the ones who did it, they now have violated that federal law. They lied to a federal official during an investigation. We're now eight months, nine going on nine months, past the leak. I think we won't know unless there's a deep throat, like Mark Felt, who reveals himself 50 years later from Watergate, we're just not gonna know. I end each episode on a note of optimism. What are you optimistic about related to the current Supreme Court docket? Well, like last term, from my perspective, I think they're gonna get more right than they get wrong, which is gonna upset a lot of folks, mainly on the left, although not quite as much as jobs. And what's different from jobs from abortion, which is more or less a 50-50 issue with the American people somewhere in the middle. With affirmative action, with racial preferences, it's a three to one issue against it. And so while Twitter will explode and left-wing elites and law professors will be angry if affirmative action goes down, the nation as a whole, including members of racial minorities really want to end this, to bring in Robert's phrase, this sorted business of giving us up by race. Thanks, Ilya. We're now gonna go to our second speaker, Eugene Contorovich, who is professor of international law at George Mason. And he will discuss legal reforms for Israel's Supreme Court. The proposed reforms to Israel's Supreme Court and judicial system suggested by the new Israeli government have caused a lot of controversy. I wanna look beyond the hysteria and see what is really at stake is this really a threat to Israeli democracy as some are claiming. Israel has the most powerful court in the world. It's also the most powerful branch in Israeli government. The court, unlike its counterparts in other countries, can decide any issue about any subject, including ongoing military operations, foreign relations, refugee policy, draft policy, and who can hold a cabinet office or who even can be prime minister. The court is not limited by any notions of standing. They can deal with issues where nobody claims to have been hurt. They decide over 10,000 such petitions a year with no lower court proceedings, no factual record, just based on what they think is right. How do they get this power? They made it up for themselves. Israel does not have a written constitution, but a couple decades ago, the Supreme Court led by Aaron Barak, president of the court, said we've decided that we will exercise judicial review because we believe certain laws implicitly let us do so. And if the Knesset doesn't like it, the legislature, they can change those laws. So now the Knesset is saying, you know what, we don't like it. And we are in fact changing those laws. And the Supreme Court is saying, well, wait, wait, wait. Maybe your amendments to the so-called quasi constitution can be unconstitutional because the Supreme Court has now officially declared that it is the priestly guardian of an unwritten, higher system of law, that they are privy to, and that can override even constitutional measures adopted by democratically elected representatives. Now, the members of this court are not picked by the political branches. They are not in any way democratically accountable. Indeed, it's the opposite of how things work in the United States. They are picked by a committee controlled by sitting Supreme Court justices. But you know, 10,000 cases does not let them decide every single issue in Israeli politics. Things would still escape them. So they have invented a doctrine where the Attorney General, that was formerly the lawyer for the government, is really a representative of the Supreme Court in the executive branch and can pre-Vito executive policies without so much as a reasoned memo by simply saying, I don't think the court will approve. I think it goes too far. Just today, the Attorney General has said the prime minister isn't disqualified from pursuing judicial reform, because for 10 years he's also been under criminal investigation. Though it's very hard to see the link between the criminal investigations and the proposed reforms, which would not really infect criminal investigations. The court also has decided, aside from striking down laws based on statutes that they claim are constitutional, they can also block government action, even if it violates no statute, and even if it's explicitly authorized by statute, if they think the government fails to properly balance social interests of different parts of society or simply goes too far. In other words, it is an all powerful, aristocratic, priestly counsel, self-perpetuating the controls Israel. What the reforms would do is give the government some real power in appointing justices to make it somewhat democratically connected. Now, it would not be quite like America where the prime minister would pick the justices, but the government would have more say over who the justices would be over the judicial selection committee. It would eliminate this idea that the government is bound by the advice of the Attorney General, even when it disagrees with that advice or has contrary advice from other counsel, and it would require that the Supreme Court only overturn things based on actual laws, not on the notions of good or bad or the so-called reasonableness doctrine, and that they overturn laws only by super majority vote, because again, the laws that the court is interpreting as constitutional were not passed in any specific constitutional process. They were passed by simple majorities. For example, the Supreme Court uses a law called Basic Law Human Dignity, which was passed 32 to 21. In other words, not even a majority of the knesset was around to talk about it, because no one thought it was constitutional. They use that to overturn laws passed by more than 60 knesset members. These are all mild reforms, political role in the appointment of judges, Attorney General works for the government, not the government working for the Attorney General. These are all really basic ideas. The Supreme Court can't just do whatever it wants. They can't overrule things that they simply find are unbalanced. They don't have judicial review, because it's a parliamentary supremacy system based on Britain, based on the Westminster model. Now, you might disagree with some of the proposals. You might think maybe only some of them should pass, but the notion that this is gonna fundamentally put Israel in some kind of authoritarian camp, and that American Jews and friends of Israel should be concerned is absurd. Why has there been such hysteria over judicial reforms proposed by Netanyahu, the Prime Minister of Israel, that he's compared to Orban and Hungary? So Orban has become a shorthand for a leader we don't like, and has been called undemocratic. Now, it's not undemocratic in the simple sense. I just to say, he wins clear democratic elections by a lot, but rather undemocratic in a sense, he does not pursue substantive policies that Western European elites believe should be pursued. But there's really no connection between the policies of Orban and the policies of Netanyahu in this matter. Why don't we say he's like Biden, because Biden would have, up for Senator Joe Manchin, pushed through court packing, which would give him complete and total power of the court in every way. The best analogy for what it's gonna be like is it's gonna be like Israel in 1993. I'm old enough to remember that. Let's discuss the origins of judicial review with John Marshall's landmark decision in Marbury v. Madison. Marshall creates judicial review out of whole cloth, something similar to how Justice Barak creates judicial review in Israel. Marshall was thoughtful about the limitations of his judicial power and getting democratic approval or public opinion on his side. How do you think about Marshall's gambit and the American Supreme Court concerned about its role in the constitutional system? I disagree with you a bit about Marbury v. Madison. Justice Marshall formalized, announced, and locked in judicial review, but there was not the big blow back to it, that there has been to Israel's judicial revolution. In Israel for decades now, you have leading authorities, prominent left-wing professors like Ruth Gavison and Daniel Friedman, saying, this is simply not what it was meant. Being the court is too much power. But in the United States, it's quite clear from the Constitutional Convention, it's made explicit in Federalist 78, that judicial review was contemplated to be a feature of the system. The question is, how far does the judicial review go? Are there limits on the court's power? And when Marshall announced judicial review, he announced it at the same time as introducing inherent limits on the court's power. In Marbury v. Madison, he says, there are decisions that are committed to the executive discretion, like who to pick for political appointee jobs, cabinet appointments, that we simply cannot interfere with it, because they are solely within the province of other branches. We cannot interfere at all in the actual running of other branches. The Israeli Supreme Court accepts no such limit. They say, we can decide that someone who is picked to be a cabinet minister and who is qualified under the statutory criteria is just not a good enough guy for the job. They can even decide that about the prime minister. Marshall and Marbury v. Madison said, we only interpret the Constitution not because we are specific guardians of the Constitution, but because we have to decide cases that people bring. And that's a limitation on the court. The American courts are seriously limited by doctrines of standing. They simply cannot reach out and decide any issue that strikes their fancy. It has to arise in a certain factual, chronological, temporal context, which leaves many issues outside their purview. The Israeli Supreme Court has rejected that limitation and said everything is just issueable. The most famous example of this was they were building a private prison. Like in America, they were private prisons. Like a prison that would be managed by a company on behalf of the government. The government had issued a contract for this. Someone brought an ideological petition saying, you need to strike this down as being unconstitutional because the idea of a private prison offends individual dignity. Well, what's the prison actually gonna be like? Doesn't matter. It's the concept. So they struck down a prison that wasn't even opening. I don't understand how the checks and balances work to contain judicial power in Israel. In the US, the federal courts are appointed by the executive and are confirmed by the Senate. Congress can pass laws that increase and decrease the power of the federal courts. And sometimes in extreme situations, the executive can refuse to implement an order by the Supreme Court. This was famous to the case when Abraham Lincoln told his cabinet that he couldn't force all the rules but won and thus refused to comply with Chief Justice Taney's order related to Lincoln's suspension of the rate of habeas corpus. How do these checks work in Israel? Every branch of government needs checks on its power. No branch can be all powerful. Currently, there is no such check on the Supreme Court's power. It is truly authoritarian. It is a 15 person or bond, as they will put it. What if the Supreme Court, given that it's not limited by laws, given that it's not limited by statutes, makes an extraordinary decision like saying, for example, the Prime Minister cannot pursue matters of legal reform of the courts, citing his own conflict of interest. That's what they claim. Well, of course, the courts have a massive conflict of interest deciding about cases that involve their own powers. If I were the Prime Minister, I would not listen to them because it would be a fundamental sabotaging of democracy. And I think Netanyahu would be very scared to not listen to the courts because they also have the lawyers, the lower judges, the bureaucratic system on their side and it would lead to a real constitutional crisis. But when it directly contradicts and seeks to reverse democratic elections and also is inconsistent with checks and balances, right? That is to say, if the Prime Minister wants to reform the court, is disallowed by the court from doing so, that is truly a coup. And that goes against basic constitutional principles. I would point out that the American Supreme Court refuses to hear cases that even might affect potential restraints on the court. For example, cases about how impeachments are to be conducted. They say that's a political question. We can't hear it because, of course, impeachment is one of the things that can be done to us, if Congress thinks when we're behaving, about how constitutional amendments should be passed. They say, we can't decide the process of constitutional amendments because, of course, one reason to amend the constitution is you don't like our decisions. In the Israel, the Supreme Court says the opposite. Former president of the Israel Supreme Court, Harom Barak wrote a book called The Judge in a Democracy. And in that book, he says it's the role of the judge not only to interpret law, but to make it. And what's strange about it is he doesn't put any limitations on it in any way. I mean, nor does he find any sort of democratic checks necessary. Why do you think he created the legal concept and was he criticized for it? So first of all, it's important to point out that this is not an idea that is uniformly embraced in Israel. The Supreme judges and the legal establishment obviously strongly support Barak because they are proteges of Barak. This panel is controlled by judges. Pics not only the judges of the Supreme Court, they also pick the lower court judges. Also, a retired justice sits on the panel that appoints the Attorney General. The Attorney General typically becomes a Supreme Court justice if he behaves nicely. Every law professor in Israel wants to be on the Supreme Court. So there's a huge amount of self-perpetuation cronyism. But many prominent officials, including former Justice Landau, Justice Minister David Friedman, have sharply criticized the court in Israel and have actually been blocked from becoming Supreme Court justices because of their criticism of the court. Why did Barak do this? I think he wanted power. It's important to see the rise of the judicial power in Israel in historical context. Israel for 40 years was a one-party state ruled by socialist parties of Ben-Gurion's coalition. During those 40 years, no one ever suggested that there was any doctrine other than absolute parliamentary sovereignty. And the court kept its head down completely. And people saw that you might have government not by the best and most enlightened people as they saw, that they come to feel that democracy had to be protected from elections. I think arrogance is massive. They truly believe that their opinions are neutral. That is to say that politicians are moved by some kind of bias sentiment and that the judges reflect only abstract truth. In the Wikipedia entry for the Supreme Court of Israel, under the list of presidents of the Supreme Court, not only does it list the current and previous ones, but it also lists the future presidents of the Supreme Court going out to the year 2039. What's going on? So let me explain how that happens. Judge in Israel don't serve for life tenure. They serve until mandatory retirement. So for all government jobs, all non-elected offices, there's mandatory retirement in Israel. It's one of these socialist vestiges. Interestingly, the court has approved a mandatory retirement age for themselves that is higher than anyone else's mandatory retirement age, which one wonders how it conflicts with the principle of equality that they have discovered in the Constitution. But as a result, everyone sticks around to the end because it's a nice job. It's one of the most high paying jobs in Israeli public service. The Chief Justice is by seniority. The government does not pick the president of the court. That's very important because the president has vast power. It's a 15 member court and judges sit in three judge panels and the president has been in control, insignificant part, of the composition of those panels. So even if there's a few more conservative judges on the court, the president can largely assign things to panels that are going to be favorable to them. So the president has vast power, more power, relatively speaking than the Chief Justice in the United States, but is not picked. Democratic and some of the proposals would suggest, why should it go just by accident of age? You mentioned that the Attorney General of Israel is selected by the courts and not by the Prime Minister. Can the Prime Minister fire the Attorney General? Theoretically, yes, but also according to the Supreme Court, the Attorney General can determine that firing to be illegal. So basically, no, if not happened. And if he did, can the Prime Minister appoint his replacement? The Prime Minister can only pick his replacement from candidates approved by this committee. Some of the reforms seek to give the government the power to pick their own legal advisors, and that's thought to be a threat to judicial independence, which is funny because it actually has nothing to do with the judiciary. It's about the executive branch. This is not the first time where we see constitutional disagreements in the world. As a matter of fact, one of my former Somb brothers, colleagues, Martin Rodrado, became the head of the central bank of Argentina, and the president of Argentina, Christina Krishna, fired him. And he said, no, you can't fire me. I'm an independent central banker, and he refused to leave his office, and there was a standoff, and the banker lost in the end. Who's going to win this one? Nobody knows. The stakes are very high. There's a difference between the central bank governor and the attorney general, the government's lawyer, and the supposed to represent the government. It's hard to say, because the other side, the opposition to the reforms, are using truly scorched earth tactics, and trying to suggest that this is going to cause economic harm, that foreign investors are going to pull out of Israel. And of course, those things are self-fulfilling prophecies. When foreign investors read headlines like, Israel may become unsafe to investors, Israeli businessmen say, they might worry a little. Now, ultimately, I don't think any economic harm is going to come to Israel, but there might be some short-term noise, that unsettles people, and they're trying to use that as a tactic. And of course, they're also trying to invite foreign intervention by the United States, to create diplomatic penalties. In short, they're trying to use a wide variety of undemocratic tactics using outside tools, to protect their undemocratic system of the Supreme Court. In the end, I suspect at least some of these reforms will pass, but just today, the attorney general is trying to impeach the prime minister, and the sort of court is short to back them. The stakes are only mounting. The opponents now are threatening civil war. I can't imagine anyone's going to have a war for the Supreme Court, but that is being threatened. The idea is to scare supporters of the reforms who don't want a civil war, who don't want a harm Israel, to say, look, if you go down this path, we're going to burn everything down with us. Then who brings first? I believe the coalition is truly committed to this because they know that if they back down now, there's no future. That is to say, if the reforms are not implemented now, then the Supreme Court will be fully confirmed as being the Supreme Priestly Council that decides all issues in Israel. This will be their greatest moment, and they will be completely unchallengeable in the future. The UK does not have a constitution like in Israel. The House of Lords acted in some ways as a check on permit, but there's also a judiciary, and the judiciary started creating obstacles for Brexit, and the then Prime Minister Boris Johnson basically said, the courts did not have standing, and the power is vested in Parliament. Why is the High Court in the UK viewed so differently than the one in Israel? First of all, the Supreme Court of the UK has a relatively recent invention was created by some judicial reforms about 20 years ago. The Supreme Court in the UK has not said that it can invalidate proposals to limit its own power. It would be incomprehensible, ask UK lawyers about this. The Supreme Court was created in 2005. Let's say Parliament wanted to pass a bill limiting its powers for the Chief Justice of the Supreme Court to take to the streets, to meet with opponents of the reform bill, to lobby government officials against it, and speak out against it in public before it was even passed, would be inconceivable. That's what the Israeli Supreme Court is doing, because they see this as their own prerogative. One of the things that has brought the judicial reforms to the forefront is the Supreme Court's decision to prevent Derry to be a minister in Netanyahu's cabinet. Tell us about that. Aria Derry is the head of a party called Shoss that represents economically disadvantaged and traditionally marginalized constituency, people from Arab countries, who are not involved in political power until a lot of the coup, which its allies started winning elections in 1977. It's the party of Jews in Israel. The leaders of parties typically serve in cabinet positions. That's how you make a coalition. So, unlike the UK, where you might have three parties in the government, you often have six, seven or more parties. You cement the relationship with them by having the party heads become ministers in the government. That's how coalition deals are made. In every government left or right. Derry, as the head of one of the larger parties in the coalition, was given some cabinet positions. Derry, despite being a very popular politician with Sephardam, also had a long series of legal woes, including multiple convictions for bribery and financial offenses. In Israel, the law said that if you have been convicted of a crime that's determined to be a crime of moral turpitude, you cannot have a cabinet position. In Derry's case, it was not clear if his crime was such because the court had not made that determination because he took a plea bargain. But in any case, to make matters abundantly clear, the Knesset passed a law saying, if you're convicted of a crime but not sentenced to jail, you can be a cabinet official. It's not limited to Derry, but they passed this to ensure that the Supreme Court could not interpret the statutes to say that Derry could not be in the cabinet. So the Supreme Court said, you know what, it's true. He is authorized by law to be a cabinet member. But you know what, it's unreasonable. I mean, he's been convicted of crimes. Of course, his voters know that he's been convicted of crimes. Everyone knew they voted for him. They thought that the system was against him or that the crimes were insignificant. No one would have a constitutional crisis over Derry being in the cabinet. But there is a bigger issue, which is the Haredi draft. In Israel, there's a deferral of army service for people who are studying full-time. They can defer the army service for a few years. And that is how many ultra-orthodox men managed to devote themselves to tour study and not be in the army. This is part of both a longstanding social compromise and also a longstanding social controversy about the extent to which they should be exempt from the army. Finally, a compromise was reached between the two sides about how much service and when and how long their deferral would be and how many people get the deferral, a compromise that was accepted by the Haredim and the secular politicians, including the Julee Brimann, the big enemy of the Haredim. The Supreme Court then said, you know what, that compromise is unconstitutional because it's unequal. It does not apply the same draft rules to them. Now, never mind that those entire class of Israeli citizens that are exempt from the draft entirely, Israeli Arabs, are not drafted at all. They didn't like the compromise. And the Knesset re-regislated a couple different versions of this compromise, each time less favorable to the Haredim. And the court said, not good enough, not good enough. So the court has taken a role of deciding who should be drafted and what a proper balance between army service and tour study should be, issues that they have absolutely no expertise with. And because those compromises were essential to securing the governing coalitions, it led to the collapse of a government, five elections in a row, all triggered by the Supreme Court pulling the plug on this massive democratic compromise. Let's go back to the court's decision to deny a cabinet position to Derry. Previously on one of my podcasts, I had Harvey Silvergway as a guest who was an old legal partner of Alan Dershowitz and the author of three felonies a day. He ran the Massachusetts ACLU and he discussed a case where there was a plea bargain with the Speaker of the Massachusetts State Legislature. And in that plea bargain, the Speaker agreed not to run for office for five years. And I asked Silvergway if he supports a plea that limits the democratic process. Here's what Silvergway said, quote, I do not approve of any plea bargain where a public official agrees not to run because we're in a democracy. We have these little tropes they call voters. That's us and it's up to us to decide who gets to run and who wins elections. Not the court, not the Attorney General, it's frankly unconstitutional, end quote. Why do these really courts oppose letting the voters decide who will be their publicly elected officials? In Israel, there is no constitution, so it's almost certainly not unconstitutional. I believe that people should be able to elect whoever they want. It would weaken democracy if courts and prosecutors could invalidate people from office. Absence some extraordinary process. Now in America, we do have a process to invalidate people from standing from office, which is impeachment, but that requires significant involvement, super majority of people who are democratically accountable. Why is there hysteria about judicial reforms when they're not permanent and can't be changed with the majority of any future kinescent? That's a very important point that nothing's being done by this government is set in stone. So why create the sense of constitutional crisis? It's the end of democracy. It's not the end of anything because the next time the left wins elections, they can put all their rules back. I don't know if they will, by the way, but they could. These are not constitutional rules that are being passed. They're not entrenched in any way. The next government can override all of this. Part of the hysteria of the left in reaction to this is anxiety that they have viable election chances. Secondly, one thing that these reforms will make permanent is it will deflate the idea created by the Supreme Court that it is above any law. And that's why this is such a heated struggle because currently the Supreme Court has claimed absolute power. We don't expect people who claim absolute power to give it up easily. They don't want to depend on elections or politics for absolute power. Do the left and the right in Israel view Supreme Court activism differently? The reason the left doesn't mind this so much is because generally the legal professional class is drawn from the left and agrees with them. The Supreme Court, for example, has applied doctrines very inconsistently in ways that help left-wing governments and harm right-wing governments. We can give many examples of where various rules have been applied completely diametrically, differently based on who's in power. So the left trusts the court for that reason and the right does not. In America, the courts are part of the Democratic political discourse. The president appoints the judges and the Senate confirms them. Supreme Court nominees is an election topic. Why do Israelis legal class oppose including the judicial branch in the democratic political process? First of all, because they've managed to succeed in avoiding it so far. And because they truly believe that they are all that stands between Israel and Turkish authoritarianism, I don't think they have any good basis for that belief, but they have contempt to protect the officials. They consider them unenlightened. They consider them not representatives of good values. And they look down on the American system, by the way, if you press them on this, they say, yeah, you know what? We don't want to be like them. Look how it is in America. There are discussions over the Supreme Court of Justice. It's icky. It's politicized. One of the mild parts of this proposal actually says that there should be public hearings about the Chief Justice. The Supreme Court finds that outrageous. It's beneath the dignity. They're going to be drawn into public hearings. Now, they don't mind making public speeches against the government, but public hearings, how dare you inquire into who they are? A vast arrogance that has been fostered by yes men. They don't have clerks who disagree with them. They're surrounded by people who agree with them in academia, in the legal bar, and that creates a kind of monoculture. Even the mildest things, like simply having a public discussion over who should be on the court, they consider to be contradictory to professionalism. They've created a cult of neutral professionalism, even though there is some professional aspect in interpreting statutes. They simply say, certain government policies do not properly balance the benefits to one group and society. On the other end, government policies that they like, like the disengagement in Gaza, which involved pulling 10,000 Jews from their homes, taking all of their property and resetting on their mouth. They said, you know what? It's worth it. In Justice Barak's book, he has negative things to say about the 18th century political philosopher, Montesquieu, who is most famous for his views, endorsing checks and balances in government, and was the intellectual theorist that Madison Hamilton applied in the American Constitution. Today in the US, there are differences between the left and the right about certain aspects of checks and balances, and the left opposes the Senate because it has two equal votes per state and they oppose the filibuster. The left finds the electoral college antiquated. They don't like it when the Supreme Court is appointed with a majority of Republican justices and want to pack the courts with their political allies. Why does the American left currently oppose Montesquieu's framework of checks and balances? Limits on power only makes sense if you think nobody has a monopoly on truth or wisdom. Bizarrely, it's also at the time when post-modernist and tsunami and ideas have also come to command a lot of currency in the relativeest ideas on the left. They have come to bully you that there is one right answer, so power should be held by those who have that answer, and limitations on it would not be a good idea. In Israel, the left believes that the electoral system is not in their favor, demographic trends disfavor them, and they really need to secure the power of this elderly, priestly class of lawyers to run the country and make sure things don't go bad. Will Israel's Supreme Court accept a law passed by the Knesset that limits its power? I think in the current atmosphere, it's very possible that they will not, and part of creating this hysteria in the West and the headlines and the letters from American Jews and statements by Blinken and the letters from professors is to give legitimacy to the courts refusal if it does that. That will create a massive constitutional crisis and will be a disaster for Israel. Because again, even if the court wins, it will have fundamentally lost the faith of the majority of the country. If the court does that, Israel will never be the same. If the court accepts it, it will be exactly the same if the other side wins elections and changes them. What do you have to mistake about? I'm optimistic that much of this reform will pass. I don't think that all of it will pass. I think it will be the compromises. The coalition is in fact willing to compromise and not just push through everything, unlike the judicial faction, which assumed all the powers they wanted without asking anyone. It really should lower the tenure of debate. One good thing about this controversy is now many people who are critics of the reform say we do agree that the judiciary has gone too far and needs reform. They weren't saying that before this push came. So now let's talk about what the reform should do, but they should truly be meaningful and hopefully that's what's going to come out of the system. Thanks to Ilya and Eugene for joining us today. If you missed last week's show, check it out. The topic was, How Shine Vests My Money and My Guest for Victor Haganni and Myron Scholes. Victor is a former Sombrulers' colleague of mine and he is one of the founders of long-term capital management. A decade ago, Victor founded a wealth advisor called Elm Wealth. Victor's wealth management strategy focuses on low fees, tax efficiency, and optimal diversification to deliver risk-adjusted after tax returns for his clients. Our second speaker is Myron Scholes, who won the Nobel Prize for his contributions to options theory, which is really just a tiny fraction of his many contributions to finance. Myron spoke about the importance of justification both across assets and time. Myron was an early advocate of low-cost index funds and believes that you need to dynamically change your investment portfolio when market risk conditions change. I now want to make a plug for next week's program about the election of the Speaker of the House. Why did it take 15 votes and what rule changes the Speaker of McCarthy agreed to that will affect the legislative process? What happened and why should we care? Our speaker will be Giselle Essin, who is a political science professor at the University of Illinois, and the author of the book entitled Separation of Powers and Legislative Organization, the president, the Senate, and political parties in the making of House Rules. We will also hear from Republican Congressman from Tennessee, Mark Green, who will discuss the challenges that McCarthy faced to pull the caucus together and what it was like to participate in this four-day whirlwind saga on the House floor. You can find our previous episodes and transcripts on our website, what happens next, and six minutes dot com. If you enjoyed today's podcast, please subscribe to our weekly emails and follow us on our podcast or Spotify. I would like to thank our audience for your continued engagement with these important issues. Goodbye. .