Chapter One

Overview

“If you see oppression of the poor, and justice and righteousness trampled in a country, do not be astounded.”

“Your own soul is nourished when you are kind; it is destroyed when you are cruel.”

“Whomever stubbornly refuses to accept criticism

will suddenly be broken beyond repair.”

—King Solomon

 “Justice cannot be for one side alone,

but must be for both.” 

—Eleanor Roosevelt

        Israel and I were both born on May 14, 1948.  As a Jewish-American, I have always felt a strong kinship with the Jewish state. Many of my relatives fled Eastern Europe because of pogroms, some of them perished in Hitler’s death camps and some sought refuge in Israel and the United States.

Just before my bar mitzvah, I saw the movie Inherit the Wind, about the Scopes Monkey Trial.  Tennessee high school teacher B.T. Cates is arrested for teaching Darwin’s theory of evolution. Famous lawyer Henry Drummond defends him; fundamentalist politician Matthew Brady prosecutes. The movie is a rendition of the 1925 trial with debates between Clarence Darrow and William Jennings Bryan taken largely from the transcripts of the case.

Spencer Tracy starred as lawyer Henry Drummond and inspired me to study law.  At Georgetown, I focused on constitutional law, voraciously reading hundreds of Supreme Court cases.  I have often represented those who promote free speech or are a member of a minority group that is being dis-criminated against.  I have represented Jews who were discriminated against, atheists, as well as Muslims, women who were denied fair pay and others whose rights were trampled upon.

My work has been focused on the U.S. court system.  I have written extensively about the United States Supreme Court, in books and articles.  I wrote Black Mondays: Worst Decisions of the Supreme Court, with the first edition published in 1987.  Justice Thurgood Marshall wrote the foreword.  I am now working on the fifth edition of this book.

The U.S. Supreme Court has been a supreme disappointment.  Even one of my favorite justices, William O. Douglas, failed me when he ruled that it was constitutional to imprison Japanese-American citizens in war camps. 

Over the past decade I have been reading as many Israeli Supreme Court decisions as possible.  I have come to the conclusion that the Israeli Supreme Court is one of the finest, most fair, just and approachable courts in the world.  Unlike the U.S. Supreme Court, the Israeli High Court does not duck many issues. Even though Israel is a very small nation, the Israeli Supreme Court hears many more cases than the U.S. Supreme Court.  The U.S. Supreme Court has cut its caseload in half even as petitions to the court have increased. 

U.S. courts have put up many barriers denying access to justice for many reasons.  Two of the primary methods used to deny plaintiffs their day in court are standing and justiciability.  The U.S. has a high bar for standing, requiring detailed allegations that the plaintiff was injured in fact.  In Israel, the Supreme Court has allowed virtually any public interest group to challenge the legality of government actions.

American courts have also created a doctrine called justiciability. In one of my cases, challenging the con-stitutionality of the North American Free Trade Agreement (NAFTA), the courts found that it was not justiciable for the court to hear a challenge to the treaty.  The courts have allowed an unconstitutional treaty to go without judicial review claiming that it is a political decision.  We argued that NAFTA was a treaty under the constitution and that its passage required two-thirds approval in the United States Senate, which it did not have.  Congress passed NAFTA as ordinary legislation.  The Israeli Supreme Court would have heard a similar case because it has not adopted the justiciability doctrine.

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The Israeli Supreme Court, established soon after Israel declared its independence in 1948, has been a beacon of justice the Middle East, and for the entire world.  Despite a nearly constant state of war, the high court has provided due process to Palestinians and other minorities under its jurisdiction.  The court has also allowed cases challenging military orders that would not have been heard in courts in the United States or many other countries.

According to George Barton’s book, “Temple of Solomon,” King Solomon was a fabulously wealthy and wise king of the United Kingdom of Israel who succeeded his father, King David.   Solomon reigned as king for nearly forty years from about 970 to 931 BCE.

According to the Talmud, Solomon is one of the 48 prophets. In the Quran, he is considered a ma-jor prophet, and Muslims generally refer to him by the Arabic variant Sulayman or Soleiman, son of Dawud or Daud. Solomon was traditionally con-sidered the author of several biblical books, including not only the collections of Proverbs, but also of Ecclesiastes and the Song of Solomon and the later book the Wisdom of Solomon.

The Old Testament recounts the story for which King Solomon is known.  1 Kings 3:16-28.  Two pros-titutes came to the king and stood before him. One of them said, “Pardon me, my lord. This woman and I live in the same house, and I had a baby while she was there with me. The third day after my child was...Continue Reading