Judges can be annoying creatures

The article I wrote for today's print edition deals with the American Supreme Court, but is really my contribution from Washington to the debate in Israel over the role of the Israeli Supreme Court. More on this debate here and these next couple of paragraphs:

Justice Minister Daniel Friedmann supports restricting the Supreme Court's ability to overturn laws passed by the Knesset, a meeting of the ministerial committee for legislation heard from the minister. Friedmann also said he favors granting the parliament authority to revise laws overturned by the court.

Supreme Court President Dorit Beinisch warned of a "campaign that has been going on for years which aims to erode the public's faith in the courts, which is being conducted by all kinds of elements." Beinisch addressed among other things Justice Minister Daniel Friedmann's proposed Basic Law on Legislation, which would reduce the Supreme Court's authority to overturn laws. The Supreme Court president said that while she is not opposed to the bill, which would anchor a nine-justice panel's exclusive right to overturn laws, she does oppose the clause granting the Knesset the right to re-institute laws which the court overturned.

Supreme Court President Dorit Beinisch accused Justice Minister Daniel Friedmann of sowing "disharmony and strife" with his proposed reform of the selection process for court presidents and deputy presidents. "It is clear that the proposals you are disseminating are another in a series of steps that sow strife and disharmony and are intended to crush the existing structure of the judicial system and demolish the institution of the Supreme Court president," Beinisch wrote in a letter to Friedmann.

And here's my article:

Tom Clark was a friend and a political ally of President Harry Truman. He also served as attorney general from 1945 to 1949. Nonetheless, Truman disparaged him behind his back with a torrent of nasty names. He called him "that damn fool from Texas," and also said Clark was "the dumbest man I've ever run across," adding that he was a "son of a bitch." In 1949 Truman appointed Clark to the United States Supreme Court, but three years later Clark joined the majority that handed the president an embarrassing defeat, blocking him from breaking a steel mill strike in 1952.

Through this experience, Truman discovered that judges can sometimes be annoying creatures, especially when they disagree with the person who appointed them. In any case, he remained friends for many more years with the man he had described as "my biggest mistake." Truman was an ornery Democratic president, who succeeded an even more ornery Democrat, Franklin Delano Roosevelt. The knight in shining armor for liberals, FDR, was so pugnacious that he tried to undermine the court structure and appoint judges who would heed his will. It was an arrogant attempt - the most blatant of its kind - to subvert the U.S. Supreme Court. Only a particularly bellicose president would behave this way. Perhaps someone like Justice Minister Daniel Friedmann.

Roosevelt and Truman were not the last presidents whose attitude toward the court was characterized by recriminations. The revolutionary court of Chief Justice Earl Warren disappointed President Dwight D. Eisenhower, who appointed him. The court of Warren Burger set precedents that are still contentious enough to stir up the political scene. The Supreme Court under William Rehnquist ruled that George W. Bush would be president.

Last week the PEW Research Center published a study that shows that most American liberals do not hold a favorable view of the Supreme Court. In June, the Gallup poll examined the level of trust Americans have in their ruling institutions: only 34 percent said they were very pleased with the Supreme Court. This is the lowest level since Gallup began following such issues in 1973. But here is a different, deceptive figure: last year, 43 percent of Americans expressed their satisfaction with the court's views, which is a lot more than the 21 percent who thought it was too liberal, or too conservative (31 percent). In other words, a large segment is satisfied - but the majority is not.

Figures disappear into an abyss with all other polls, but the Supreme Court is still standing. A few weeks ago it passed a series of rulings that further eroded the faith of liberals in the court. They are now fearful of a possible revocation of the Roe vs. Wade ruling, in which the Supreme Court ruled that any law banning abortions is unconstitutional. The skies will not fall if this happens, as they did not for the conservatives when the Supreme Court of chief justice Warren Burger ruled in favor of this right. In any case, a Democratic president succeed Bush at some point, and will attempt to affect the makeup of the court and bring it more in line with the president's views.

Moreover, it is interesting that the pollsters do not have a clear, uniform explanation as to why the public's faith in the Supreme Court has dropped at this time. Benjamin Wittes, a leading expert on the U.S. Supreme Court, concluded that this may be part of a broader trend - a drop in the faith placed in government institutions. But he also thinks there may be another possibility: a series of Supreme Court rulings passed on a single vote, and the judgments were full of "political-sounding rhetoric."

Any comparison to Israel must, of course, take into account the differences in system and culture. Nonetheless, there is significant similarity in the bellicosity of ministers and elected officials, there and here. Justices are no angels, especially when they do not share your point of view. They really are annoying creatures in their rulings, and in the sense of helplessness that their rulings, their detachment and their job security create. Even so, when we examine whether the public trusts them, it should be done comparatively. It would then become clear that in the U.S., like in Israel, the public believes in its annoying justices a lot more than it trusts its politicians. It turns out that the public is not stupid.