When politicians lose political power, they at times try to use the courts to do their legislative bidding.
The Founding Fathers set up an amazing system of government. The checks and balances built into three branches allow for the prevention of one wing of the government becoming too dominant. The Congress can pass a bill; the sitting president can veto the same. The Congress can override his veto. Presidents, judges, and others can be impeached in extreme cases, while the courts can declare a law unconstitutional and thus limit Congress’ power. When all of the branches are working as the Founders envisioned, the system is about as good as it gets when compared to other forms of government all over the world.
As we have seen in recent years, our government can get far out of whack. A majority in Congress from a party not that of the president can impeach the president even if the actions in question do not rise to “high crimes and misdemeanors.” The massive waste being discovered by DOGE could only exist due to inadequate oversight from the Congress. Why weren’t the relevant committees going through budgets of executive offices to see how the people’s money was being used? Why did we have to wait for Elon Musk’s team to root out billions in wasted tax funds? The adversarial nature of the three branches of government is supposed to keep all three honest; we can see that the system today is not functioning as envisioned.
Here in Israel, there is a clear political trend that shows the weakening of Israel’s left. At the founding of the country in 1948, all seats in the Knesset belonged to the Mapai Party, the precursor of the Labor Party. During the last election, Labor barely got over the electoral threshold to remain in the Knesset. Since the second intifada ended in 2006, support for left-leaning parties has gone down significantly. Caroline Glick has written extensively about the demise of Israel’s left. They promised peace and brought bloodshed. There was no “partner” as they often described Arafat and his men. Israelis realized that the left had nothing to offer for either peace or prosperity. It was Binyamin (Bibi) Netanyahu who oversaw deregulation and the transformation of the Jewish state from a moribund socialist backwater to a technology and startup powerhouse.
As the left saw its power wane, it leaned on the one institution it still controlled: the courts. The method by which judges are appointed gave an enormous slant to the left in Israel's various courts, especially the High Court. What the reduced left could not accomplish from its seats in the Knesset, it did so via the High Court. The major fight prior to the October 7th pogrom dealt with the role of the court in Israeli society. A previous head of the High Court, Aaron Barak, intentionally expanded the scope of the court’s activities from being the highest appeals court in the land to the final arbiter of all questions, social, religious, military and political. In Barak’s famous words, hakol shafit: “Everything can be adjudicated.” If you were a disinterested observer and came to Israel to find out what was going on with the courts, you would get two answers. Those on the left would accuse Bibi of trying to neuter the court and thus concentrate all political power in his hands. Those on the right would say that the court is out of control and should not have the final word on treaties, appointments, IDF decisions, and laws passed by democratically-elected majorities in the Knesset. As Murphy said in one of his famous laws, “Where you stand on an issue depends on where you sit.” There is no question that those opposed to judicial reform received money from USAID and other foreign actors in order to blunt Bibi’s rule. USAID for years paid for billboards against Bibi in various elections when Democrats ran the White House.
In the U.S., the use or misuse of the courts is somewhat different. Those on the left who lost the White House and Senate while continuing to be the minority in the House see the courts as an alternative means of putting the brakes on Donald Trump’s agenda. In the past, Americans would have expected political compromise. But those days, when all of our representatives were more or less white Christian males of similar background and values, are long gone. We have more traditional Republicans sitting in the same building with people who believe that men can give birth and that typical climate variations will be the end of the world. As there is almost no room for compromise or even discussion on many critical issues, the courts are often approached to slow down the executive branch. Marco Rubio wants to deport a green card holder who has organized anti-Jewish protests at Columbia. A judge has stayed the deportation. In the end, the fellow and many others who harass Jewis hopefully will be booted for their visa violations, but the process is dragged out. Now multiply that same phenomenon by the dozens of cases brought by Democrats to slow down or thwart Donald Trump and Elon Musk.
Running to the courts to stop Elon Musk from cutting programs from the bloated U.S. budget or Donald Trump from enforcing an executive order is legal but disingenuous. Rather than work with the new administration as a sort of “loyal opposition” or recognize that the people have spoken and this is the government that they want, Democrats run to the court to either stop Trump or advance their own policies. While many of the efforts will fail at higher levels of judicial review, the practice prevents our elected officials from doing what the American people want: talk and compromise. Running to the courts may feel good, but Americans want those in the minority to either accept the will of the majority or work on compromises that allow for smaller victories. Running to the courts to stop an executive action is in place of doing what parliamentarians are expected to do: make deals. While Bill Clinton and Newt Gingrinch came from two ends of the political spectrum, in their day, they understood that they needed to work together. They did so, and much legislation was passed and America actually ran a budget surplus in Clinton’s final years as president.
The court system has a critical role in the success of the American experiment. One role it was not meant to have was that of an alternative legislative forum for minority legislators. Going to the courts to stop the new administration should be considered only as a last resort. The Democrats need to understand that the people have broadly rejected their DEI/climate/trans/inflationary program. Kamala Harris did not lose by a whisker. Work with the Republicans and get the people’s business done. Don’t use the courts to prevent the elected government from doing its job. The Democrats’ surprising agreement on the continuing budget resolution should be a model for all issues of the day. President Trump has a mandate from the people and the courts have full dockets. Settle differences in the halls of Congress and leave the courts to do their important judicial work.