What the U.S. Can Learn from
the Israeli Supreme Court
by Joel D. Joseph
I have spent the last three years studying the Israeli Supreme Court for my forthcoming book Solomonic Justice. I have studied the U.S. 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 U.S. Supreme Court usually makes a winner takes all decision. The Israeli high court most often gives a little to both sides.
2. The U.S. 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. U.S. Supreme Court Justices have life tenure, while Israeli justices must retire at age 70.
Overturning Roe
The leaked draft 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 U.S. 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 plans to overrule Roe unnecessarily which will throw the entire country into turmoil and allow states to ban abortions even in the case of rape or incest.
Jerusalem Evictions
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.
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