Two Democracies, One Playbook

Last Thursday, the Supreme Court of the United States did something unremarkable by the standards of any healthy democracy: it told a president no. In a 6-3 ruling authored by Chief Justice John Roberts — a jurist Trump himself appointed — the court held that the president had exceeded his constitutional authority in imposing sweeping tariffs through emergency powers, arrogating to himself the taxing prerogatives that the Constitution reserves exclusively for Congress. The justices ruled that Trump’s aggressive approach to tariffs was not permitted under a 1977 law called the International Emergency Economic Powers Act, finding that it would give the president unconstrained power to unilaterally impose tariffs of unlimited amount, duration, and scope.

Trump’s response was instructive. He denounced the justices who ruled against him as a “disgrace.” He called the decision “terrible” and “totally defective.” Then — having been told he lacked congressional authorization to act as he had — he immediately searched for another legal vehicle to do largely the same thing. Trump used a different law to impose a 10 percent across-the-board tariff just hours after the ruling.

Israelis watching from afar might be forgiven for experiencing a sense of déjà vu.

Three years ago, the Netanyahu government launched what it called “judicial reform” — a suite of proposals that would have allowed the Knesset to override Supreme Court decisions with a simple majority, stripped the court of its ability to review the “reasonableness” of government decisions, and handed politicians near-total control over judicial appointments. Proponents argued it was about correcting an imbalance, restoring democratic accountability, reining in an “activist” court that had strayed beyond its mandate.

What it was really about — as hundreds of thousands of Israelis understood when they poured into the streets — was power. The ability to govern without meaningful legal constraint. The ability to declare an emergency, invoke sweeping authority, and dare the courts to stop you, knowing they couldn’t.

The parallel with Trump is not superficial. It goes to the marrow of what democratic backsliding actually looks like.

In both cases, the judiciary did exactly what it was designed to do: it checked an executive branch that claimed the authority to act without adequate legislative sanction. In both cases, the political leader in question responded not by accepting the limitation — not by going to the legislature and building a proper legal foundation — but by attacking the legitimacy of the institution that ruled against him. And in both cases, the underlying message to the public was the same: the courts are the obstacle; if only we could remove the obstacle, I could deliver for you.

This is the authoritarian bargain in its purest form. It doesn’t require jackboots or tanks. It requires only that people become convinced that the rules were made by elites to protect elites, that the judges are political creatures anyway, and that the leader’s will — backed by electoral majorities — should be unencumbered. Once that conviction takes hold deeply enough, the institutions that constrain power stop being seen as protections and start being seen as provocations.

Chief Justice Roberts, in his majority opinion, articulated something the Israeli judicial reform movement’s architects seemed unable or unwilling to accept: that the power to tax is foundational — “the one great power upon which the whole national fabric is based” — and that it cannot simply be conjured into existence by executive declaration. Roberts noted that Trump’s reading of the law would “give the President power to unilaterally impose unbounded tariffs,” “unconstrained by the significant procedural limitations in other tariff statutes and free to issue a dizzying array of modifications at will.” The court’s function, in striking down the tariffs, was not to obstruct a policy agenda. It was to enforce the principle that power requires authorization.

That is precisely what Israel’s Supreme Court was doing when it struck down the reasonableness amendment last year. It wasn’t playing politics. It was insisting that power — even majoritarian power, even power granted by election — requires a legal foundation. The moment that principle is abandoned, you don’t have democracy. You have elected autocracy: the same thing, only slower.

Trump’s tantrum after the tariff ruling is clarifying precisely because his court was not some liberal holdover establishment. Three of the justices in the majority were his own appointees. The ruling was authored by Roberts, joined by three liberal justices and two fellow conservatives, Justices Neil Gorsuch and Amy Coney Barrett. When even a conservative-dominated court, staffed substantially by a president’s own picks, rules against him on constitutional grounds, and his response is to call them a disgrace and look for workarounds — that tells you the dispute was never really about judicial philosophy. It was about whether the leader accepts any limits at all.

This is the question that was really at stake in the Israeli judicial crisis, and it is the question that hangs over American democracy today. Not: are the courts sometimes wrong? They are. Not: should judicial appointments be reformed? Perhaps they should. The question is: do you accept that someone, somewhere, has the legitimate authority to tell you no?

Netanyahu’s coalition, at its most extreme, answered that question with a barely concealed no. Trump, calling his court’s ruling a “disgrace” before the ink had dried, is answering the same way.

There is one crucial difference between the two stories, and it should give Americans pause rather than comfort. Israel had hundreds of thousands of citizens mobilize in defense of judicial independence with a consistency and a duration that shook the political system. Reserve pilots threatened not to report for duty. The business community spoke in one voice. The streets did not empty for months.

American civil society has shown admirable pockets of resistance. But the tariff ruling has already faded from the top of the news cycle, overwhelmed by the next outrage, the next maneuver, the next executive order. The president called the highest court in the land a disgrace, announced plans to circumvent its ruling the same evening, and the republic moved on to other things.

Israel’s judicial reform movement failed — at least in its most extreme form — because Israeli citizens understood with visceral urgency that the independence of the courts was not an abstraction. It was the one institutional guarantee standing between them and the unchecked use of state power against minorities, dissidents, and inconvenient truths.

Americans would do well to internalize the same lesson before they need to learn it the hard way.

© The Times of Israel (Blogs)