In recent years, the United States and Israel have witnessed eerily similar patterns in how certain segments of the political Right respond when judicial appointees deemed conservative show independence from political expectations.
The cases of Justice Amy Coney Barrett in the US and Justice Noam Sohlberg in Israel illustrate a troubling dynamic: the expectation from some political quarters that judicial philosophy should translate to political loyalty. This, at a time when there are calls for the impeachment of judges in the US who rule against Trump’s executive orders; and in Israel, with the justice minister boycotting the president of the Supreme Court, refusing to recognize his appointment.
While traditional conservatives value judicial restraint and the rule of law, accepting unfavorable rulings as the price of constitutional governance, today’s right-wing populists merely cloak authoritarian impulses in conservative rhetoric.
A dangerous coalition has formed: Genuine judicial conservatives lend intellectual credibility to populist movements that ultimately aim to dismantle the very separation of powers that conservatism historically defended. By the time traditional conservatives recognize this distinction, the institutional damage may already be irreversible.
When Trump nominated Barrett to the Supreme Court in 2020, conservatives celebrated her devout Catholicism and originalist judicial philosophy. Similarly, in Israel, Sohlberg, a religious Zionist who lives in a Judean settlement, was welcomed to the Israeli Supreme Court in 2012 as a reliably conservative voice with support across the right wing of Israeli politics.
In a particularly absurd moment, some critics labeled her a “DEI hire” – a bizarrely ironic characterization for a white, deeply Catholic woman with strong academic credentials. This slur is normally used to attack progressive institutions and the promotion of minority appointments under the principles of diversity, equity, and inclusion – the claim being that color or race are more important than competence or qualifications.
The double irony is that Barrett joined other justices in the June 2023 Supreme Court ruling against affirmative action in US colleges, a landmark hearing against DEI. This politically motivated slur reveals how quickly the cloak of principles is abandoned when rulings don’t align with partisan expectations.
Sohlberg has faced similar treatment in Israel, most notably only weeks ago, after joining a unanimous Israeli Supreme Court decision against the government in the high-profile case involving the dismissal of Shin Bet head Ronen Bar.
The backlash was so severe that there were public calls for Justice Minister Yariv Levin to boycott Sohlberg’s swearing-in ceremony as vice president of the Supreme Court, an (almost) unprecedented attack on judicial norms and institutional respect.
The reaction from hardline elements in both countries has been swift and severe. Some in Israel’s ruling coalition, particularly Justice Minister Levin, have suggested that Sohlberg cannot be considered truly “conservative” because he ruled against government interests. This reveals a fundamental misunderstanding, or perhaps deliberate misrepresentation, of what judicial conservatism means.
In the American context, we see similar dynamics at play. Members of the Trump administration have called for the impeachment of judges who rule against executive orders. Trump himself has targeted leading law firms representing challengers to administration policies.
The Financial Times’s chief foreign affairs commentator, Gideon Rachman, does not mince words in describing the response of the US legal profession: “Like respectable members of the professional classes, unexpectedly threatened by the mob, Trump’s targets paid up quickly in the hope that all the unpleasantness would swiftly go away.”
The beating heart of civil society is made up of independent lawyers and judges. Without them, there is little to constrain the power of the executive branch.
This pattern exposes a dangerous conflation: confusing judicial conservatism with political loyalty. True judicial conservatives – whether they embrace originalism, textualism, or judicial restraint – aim to interpret law according to established legal principles, not partisan preferences. Sometimes this leads to outcomes that disappoint their political allies.
A growing trend: Judicial independence at risk worldwide
The US and Israel are not alone in this politicization. In 2017, there was a concerted attack on the senior British judiciary after a high-profile ruling on Brexit. The popular press and certain politicians launched a series of ad hominem attacks on the presiding judges, alleging without basis that the politics of the judges, and not their interpretation of the law, determined their decision. The then-justice minister did not defend the judges, leading the judges to feel exposed in a media arena they were wholly unequipped to navigate.
In countries with weaker democratic roots (Turkey, Hungary, and Poland), undermining the judiciary is predictable. When it happens in democratic stalwarts, like the UK and US, then the world takes note. When it happens in the only Jewish country, we need to take note.
What we’re witnessing is not legitimate disappointment with judicial philosophy but rather frustration that judges aren’t acting as rubber stamps for executive power. This represents a fundamental threat to judicial independence and the separation of powers that undergirds democratic governance.
The judiciary functions as democracy’s failsafe – the branch that ensures governmental power remains within constitutional boundaries regardless of which party holds power. When political figures demand loyalty rather than principle from judges, they reveal authoritarian tendencies that should alarm citizens across the political spectrum.
A diverse judiciary reflecting various interpretive philosophies strengthens our legal systems. But demanding political fealty from judges, whether in Washington or Jerusalem, undermines the very foundations of representative democracy.
The attacks on Barrett and Sohlberg signal something profoundly concerning: certain political factions don’t want conservative judges; they want compliant ones. They have stopped believing in the separation of powers and are seeking increasingly unlimited power.In preserving or even reforming our democratic institutions, we must recognize and resist this distinction before independent courts become merely another partisan battleground.
The writer, a founding partner of Goldrock Capital, is the founder of The Institute for Jewish and Zionist Research. He is a former chairman of Gesher, World Bnei Akiva, and the Coalition for Haredi Employment.