I have spent the last three years studying the Israeli Supreme Court for my forthcoming book “Solomonic Justice.” I have studied the US Supreme Court for 50 years, writing four editions of “Black Mondays: Worst Decisions of the Supreme Court.”
Justice Thurgood Marshall wrote the foreword to “Black Mondays,” even though he did not like the title. Israeli Supreme Court Justice Eliezer Rivlin shepherded me through the minefield of Israeli Supreme Court decisions.
There are three striking differences between these two historic courts:
1. The US Supreme Court usually makes a winner takes all decision. The Israeli high court most often gives a little to both sides.
2. The US Supreme Court has difficult rules of standing causing some important cases never to get heard. The Israeli high court lets almost anyone challenge any law or policy, even military actions.
3. US Supreme Court Justices have life tenure, while Israeli justices must retire at age 70.
The majority opinion in Dobbs v. Jackson Women’s Health Organization demonstrates a winner-takes-all approach on the abortion issue. At issue is a Mississippi law that bans abortions after 15 weeks. The decision in Roe recognized that under common law abortion performed before “quickening” — the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy, was not illegal. Roe ruled during the first trimester, governments could not prohibit abortions at all. A trimester is 12 weeks. The US Supreme Court could simply rule that banning abortions after 15 weeks is constitutional. That would give every party a claim to victory. Instead, the Court overruled Roe unnecessarily, which will throw the entire country into turmoil and allow states to ban abortions even in the case of rape or incest.
In a recent case in Israel — one that is at least as contentious as abortion is in the United States — involved disputed land in East Jerusalem. Following Israel’s annexation of East Jerusalem after occupying it in 1967 — in an illegal move under international law — tens of thousands of Palestinian families in East Jerusalem were displaced and their homes threatened with demolition.
The properties in question were built on land that was owned by a Jewish community trust before the 1948 war at Israel’s creation, according to court documents. After the 1948 war, when East Jerusalem was controlled by Jordan, Palestinian refugee families were settled in houses on the property. Israel took control of East Jerusalem during the 1967 Mideast war and since 1972 Israelis have tried to claim their property and evict the Palestinian residents.
The case came before the Israeli Supreme Court this year. The Court ruled that the Palestinians could stay on the property while title to the land was disputed. The High Court had sought to find a middle ground: the Israelis would be recognized as the owners, but the Palestinians would not forfeit their right to seek to have the question of ownership reopened by the Justice Ministry, as their attorneys have long sought. While this dispute plays out, the Palestinians are allowed to remain tenants by paying a modest monthly rent.
The court’s compromise gave Palestinians extra protections beyond the letter of the law. Protected tenancy can be stripped for various reasons — such as urban renewal projects or should residents make changes to the homes. The decision specifically ruled out evicting Palestinians for those reasons. The Israeli Supreme Court made a Solomonic decision, where both sides could claim victory. This decision eased tensions and dampened Palestinian protests.
The US Supreme Court refused to hear any case challenging the constitutionality of the War in Vietnam. Congress, which is the only branch of government with the express constitutional power to declare war, did not do so. The Supreme Court refused in May 1968 to hear the case of Albert H. Holmes, a minister of the Jehovah’s Witnesses faith who had contested the war through a claim that the draft was invalid. Only one member of the court, Justice William O. Douglas, voted to hear Holmes’ appeal. Justice Douglas did that repeatedly as many Vietnam War cases reached the court.
I represented the United Steelworkers and the Made in the USA Foundation in a case challenging the constitutionality of the North American Free Trade Agreement. We challenged NAFTA because the constitution requires treaties to get a two-thirds vote in the Senate. NAFTA did not get two-thirds Senate approval. NAFTA was an end-run around the constitution, passed as simple legislation when it clearly was a treaty. Mexico passed NAFTA as a treaty under its constitution. However, the Eleventh Circuit Court of Appeals ruled that this case was not justiciable because it presented “political” questions and the Supreme Court denied review. It is interesting to note that the Supreme Court ducked challenges to the Vietnam War and NAFTA, yet accepts nearly all abortion cases.
In stark contrast to the US Supreme Court’s denial of review of major government actions, wars and treaties, the Israeli high court reviews nearly every action of the government, including military decisions. Concerning the controversial border wall, built between Israel and the West Bank, the Court made the government re-route the wall to allow Palestinians access to certain areas. The Israeli court’s policy of broad access to the courts has helped relieve some of the pressures in that society by giving all parties their day in court. The US Supreme Court’s unnecessarily strict standing and political question doctrine has frustrated millions of American citizens. The US Supreme Court should have at least heard arguments in the Vietnam War and NAFTA cases, cases that involved express Constitutional provisions that were being ignored.
Life expectancy was 38 years when the constitution was drafted in 1787. We should either get rid of life terms for federal judges or institute a maximum age of 75. Of course, many judges are mentally able beyond that age. However, I was arguing a case before an octogenarian federal judge who could not remember how he had ruled five minutes earlier. Such judges should be impeached but never are. US federal judges should be limited to a fixed term of 12 or so years, or face mandatory retirement.
The US Supreme Court should learn from the Israeli experience and try to be more Solomonic in its decision-making. While there are always winners and losers, it is a rare case where one side is 100% correct. Usually, both sides have a point. The US court should also open up standing requirements and get rid of the political question doctrine. China uses this same doctrine to lock up dissenters and deny access to its court system. If any question before the court is political, it is the abortion issue. The court has waded deeply into the abortion issue, yet ducks many other major issues that should be decided by the courts.
Joel Joseph is ans attorney and chairman of the Made in the USA Foundation, a non-profit organization dedicated to promoting American-made products. Email joeldjoseph@gmail.com. Phone 310 MADE-USA
From The Progressive Populist, August 1, 2022
Blog | Current Issue | Back Issues | Essays | Links
About the Progressive Populist | How to Subscribe | How to Contact Us