It is not unusual to see politicians in the U.S. chastising courts for rulings that contravene their party’s interests or ideology, but the recent proposals from Republican candidates would undermine the critical and constitutional independence of the courts and threaten the very institution.
Both parties accuse judges of being activists, of writing legislation rather than adopting a narrower view of judicial review in which courts only rule on the constitutionality of a law in the specific case in question. Though, politicians often use this attack line as a blanket critique of rulings they oppose. Rick Santorum suggested eliminating the ninth circuit courts because they are “consistently radical.” Michele Bachman and Ron Paul said they would forbid the courts from determining the fate of same-sex marriage, likely fearing a progressive ruling on this issue. While Santorum, Bachman and Paul seem to want to restrict courts from intervening in political issues, Rick Perry and New Gingrich challenge the authority of these judicial institutions. Rick Perry proposed congressional review over all Supreme Court decisions, and referred to the judges pejoratively as unelected and unaccountable officials. Newt Gingrich suggested that as president he would not feel bound by rulings he opposed—a notion that contravenes any interpretation of checks and balances and completely undermines the independence of the courts.
All of these candidates are speaking to their primary campaign audience, but Gingrich’s disrespect for the Supreme Court goes the furthest to undermine critical public support and respect for the institution. The legislature controls all spending and the president has total control over the army, but the Supreme Court relies only deference for the institution to make sure its rulings are obeyed. The courts have no way to coerce obedience.
Similar assaults on the courts being carried out by conservative governments in Turkey and Israel are important as cases of these Republican policies actually being put in to effect. Turkish Prime Minister Tayyip Erdogan championed Turkey’s 2010 constitutional reform that proposed changes to the courts including expanding standing to sue, instructing judges to treat international treaties as constitutional law, democratizing the judicial appointment process, and increasing the threshold for judges to bar a party from an election or ban them from politics. Many of these reforms were aimed at bringing Turkey in line with EU standards, but other parts increased civilian and popular influence over the courts. That this event coincided with the mass arrest of military personal led some to believe that the Islamic-leaning AKP was consolidating power by targeting their detractors in the military and in the judiciary through reforms that were included in the constitutional referendum.
Since the AKP, a conservative Islamic party, is the freely and fairly elected government of Turkey, any efforts towards democratizing the courts could be interpreted as an effort to exert a greater Islamic influence over that traditionally secular institution. Turkey democratized its judicial system—made it more responsive to the popular will—by creating shorter judicial terms, popular elections for judges, and recall elections. These reforms served to undermine judicial independence by allowing the people or their representatives to punish or replace judges for unpopular decisions. Turkey’s Constitutional Court has functioned as an effective check on the Parliament and has frustrated the efforts of the AKP to embrace Turkey’s Islamic Identity. For example, when the parliament overturned the ban on wearing headscarves in public universities, fulfilling a campaign promise, the Constitutional Court reinstated the ban. One of Erdogan’s quiet victories from the referendum was the ability to stop enforcing the ban. The judicial reforms decreased the likelihood of interference from the Constitutional Court by forcing judges to face popular elections and parliamentary hearings.
Turkey’s adoption of international treaties and European Union judicial standards should help allay some fears about the theocratization of Turkey’s judicial system, but attempts to make the courts ‘more accountable’ threaten their ability to effectively check the popular government. Historically, the Turkish army has played that role. The courts may be viewed as undemocratic because they are designed to insulate judges from public opinion, and from private interests, freeing judges to rule as they each see fit. A major consideration in the design of the American judicial system is to protect against the potentially oppressive whims of a majority, which they cannot do if they must face that electorate in elections or face parliamentary inquiry in to cases.
Like the AKP, the Netanyahu government in Israel has called for greater democratization of the courts, particularly for Israel’s Supreme Court, and proposed changes that would make the courts more beholden to political interests. On November 14, two judicial reforms passed the Knesset as Kadima MKs waved black flags in opposition. Their chairwoman Tzipi Livni’s harshest condemnations were directed at efforts to establish a quota system for the Bar Associations appointees to the Judicial Selection Committee—one would be from the governing coalition and one from the opposition, rather than choosing appointees on merit alone. This bill, arguably, democratizes the selection process by ensuring that appointments reflect a larger range of viewpoints in Israel, but it is largely a reaction to the Bar Associations preference for more liberal nominees.
The ongoing campaign under Netanyahu’s leadership to bring the courts under greater political control is partially the result of the large ideological gap between the courts and the current governing coalition. The proposed reforms would permanently damage the institution and Netanyahu gave a similar argument when he publicly opposed these reforms, but was likely also responding to pressure from his Intelligence Minster Dan Meridor (Likud). Meridor threatened to resign over this string of judicial reform bills bills, and even though he seems to represent a minority position in the party he seems to have Netanyahu’s support. Meridor correctly argued that these bills were a direct assault on “liberalism [which] was the original purpose” of Likud since Begin’s leadership. Despite support for Meridor’s position among many Likud members, including Netanyahu, these bills are being endorsed and written by other members of their party.
A Likud-backed bill in early November establishes public hearings in the Knesset’s Law, Constitution, and Justice Committee for judge appointees and includes the power to disqualify candidates. As MK Yariv Levin (Likud) put it, “This law will break the hegemony of the anti-Zionist elite in the justice system and return the sovereignty of the people and the Knesset to democratic life in Israel.” Levin’s is saying that the people, or perhaps only their elected representatives should control the government. However, Levin’s clear intention is to alter the perceived ideological bias and create a Supreme Court that is less willing or able to freely intervene in government affairs. Levin’s populist justification for trying to discredit the courts system is also an essential part of the arguments for judicial reform in Turkey and the US Republican primaries.
These three examples provide different cases of a similar trend in intentional conservative assaults on the courts. In Turkey PM Erdogan has consolidated power by pushing more conservatives, including some Muslim clerics, into positions of greater judicial power. In Israel the focus has been mostly on barring “non-Zionist” judges and punishing courts for unpopular rulings. Most Republican primary candidates have proposed judicial reforms comparable to Israeli and Turkish legislative efforts to weaken the courts, but Gingrich’s belief that the president can unabashedly ignore Supreme Court rulings threatens to discredit the institution. Conservatives, including a majority of the Republic party, largely support efforts to limit the independence of the courts and politicize the appointments of judges, which open the courts up to the same undue influences—including popular organizations and special interests—that so often compromise the integrity of our political system. Support for these types of judicial reforms is one of the most disturbing trends in Republican party to emerge from the campaign so far.