Is Netanyahu’s judicial reform needed in the US after Trump immunity ruling?

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‘When the president does it, that means that it is not illegal.” That quote, uttered by former US president Richard Nixon in an interview with journalist Nick Frost in 1977, can be viewed as the archetypical “Gotcha!” moment of the interview, a damning sound bite that condemned the legacy of a president shrouded in hubris and scandal.

The quote was not referring to Watergate, but to Nixon’s efforts to crack down on anti-war movements and left-wing radicals. This is arguably more significant, as these efforts, known as the Huston Plan, would have seen widespread violations of the Bill of Rights. This was described as authoritarianism, and Nixon defended it, claiming that the president can do whatever is necessary in the name of national security.

While he was criticized for this view, the US Supreme Court did rule that presidents had immunity to civil suits over damages caused by their official actions as president in Nixon v. Fitzgerald.

Nixon believed he was more than a mere president but a “sovereign.” In their July 1, 2024, ruling in Trump v. United States, the Supreme Court has come close to making this belief a reality, making presidents – starting with former US president Donald Trump, who has already been convicted on felony charges and is facing a further litany of criminal charges for acts committed while in office – immune to all prosecution for acts done within their constitutional mandate.

Exactly how much power a US president may have now is still debated, but the dissenting opinions in the court ruling paint a bleak picture: The president – if immune to prosecution – could order Seal Team 6 to assassinate a political rival, or launch a coup to stay in power, or take bribes in exchange for pardons.

The ruling is incredibly divisive, with many critics pointing to it being the latest example of the politicization of the US federal government’s judicial branch, and the latest blow to American democracy.

US political tension mirrors Israel

But this situation has some understated parallels to much of the political tension occurring here in Israel, both in terms of the nation’s leader being shrouded in controversy and criminal allegations and in terms of criticism being directed at the Supreme Court.

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While it’s been heavily overshadowed by the war with Hamas, judicial reform not too long ago threatened to unravel the very fabric of Israeli society.

The proposed judicial reform would have seen, among other things, rulings by the Israeli Supreme Court subject to being thrown out by a vote in the Knesset, as well as changes to how judges get appointed.

AT FIRST glance, the proposed Israeli judicial reform may seem like something that could apply to the US, where partisanship seems to have thrown a wrench into the idea of an independent judiciary.

But not all legal experts agree.

“I don’t think we as Israelis can offer any kind of democratic reform to the United States,” explained Hiddai Negev, head of policy and lawmaking in the legal NGO the Movement for Quality Government in Israel, one of the primary organizations spearheading protests against Israeli judicial reform. “We have to be honest, our democratic regime has no checks and balances like in the US.”

Despite the many recent controversies surrounding US politics, Negev claimed that the United States is still inherently more democratic than Israel is. And, as he stated, it all has to do with checks and balances.

American politics indeed functions on a system of separation of powers, with the founding fathers designing the government with this in mind. The legislative branch, Congress – itself divided into the House of Representatives and the Senate – creates law; the executive branch, the president and cabinet, executes the law; and the judicial branch interprets the law.

Granted, in the US, the executive branch has considerably more authority than just executing the law, with the president also being commander-in-chief of the armed forces, being able to represent the US diplomatically, being able to veto and sign laws, and being able to give out presidential pardons.

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Different presidents have interpreted these abilities in different ways, ranging from Nixon’s idea of a “sovereign president” to Thomas Jefferson setting the precedent of military action without congressional approval during the Barbary Wars.

Theoretically, Israel has these three branches, too, but being a Westminster parliamentary system, they manifest themselves differently.

The executive and legislative branches are fused together, and while this has seen success in many places, like in the United Kingdom, there have been some issues here. Not only that, but Israel also lacks a constitution like the US, instead being governed by Basic Laws.

“In Israel, the administration controls the Knesset,” Negev explained. “We don’t have a president who can veto the legislature. The only checks and balances we have is the Supreme Court, which can sometimes check the legislature and government, but it doesn’t do it enough, because it’s a long process and because it doesn’t want to interfere.”

Even with just the judicial systems, there are some big differences between the American and Israeli versions.

On the one hand, Israel’s judicial system is truly independent – something that proponents of judicial reform have taken umbrage with, as they feel the court oversteps with what they call “judicial activism” in how it strikes down legislation or interferes with the workings of the Knesset.

The Israeli judiciary has also been accused of prioritizing protecting the rights of minorities, compared to the US, where the top court is accused of prioritizing protecting the interests of the executive branch.

Israel top court also has one other point in its favor over the US Supreme Court: forced retirement for judges. This ensures turnover in the court and keeps power from being centered in the hands of a few judges for too long.

On the other hand, the Israeli judicial system is lacking in two very key aspects: a more thorough appeal system and a jury.

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