US Supreme Court decisions negative for Israel

Dr. Norman Bailey

Israel's positions on Jerusalem and against BDS have been weakened.

Last week the Supreme Court of the United States issued a series of split decisions which will be long remembered and, I fear, long regretted. Two are especially important to Israel:

The court, by a vote of five to four, struck down state laws prohibiting same-sex marriage, thereby fundamentally shifting the balance of authority from the states to the federal government. The constitution reserves all powers not specifically granted to the central government to the states and to the people. That constitutional principle has now been ignored again in a process that began with the abortion decision Roe vs. Wade. Several states have prohibited or are considering prohibiting BDS movements. It can now be confidently assumed that such laws will be challenged in the Supreme Court and that the latter will likely uphold the challenge.

The court also backed the federal government in its refusal to implement the Congressional mandate to acknowledge on official documents the manifest fact that Jerusalem is in Israel, on grounds that the constitution gives principal responsibility for foreign relations to the executive branch. The problem with that reasoning is that the Congressional order has nothing to do with foreign relations. In this case the balance of power between the executive and legislative branches of government has been significantly affected by a decision of the judicial branch. The US government has for years refused to implement the law passed by Congress ordering it to move the US embassy in Israel from Tel Aviv to Jerusalem, using a provision of the law which permits it to delay any such action due to considerations of "national security".

In the Jerusalem case, the six to three vote supporting the government's position is interesting. Jews are about two percent of the population of the US, but make up one-third of the Supreme Court, i.e. three justices out of nine. All three of the Jewish justices voted to uphold the position of the government that Jerusalem is not in Israel. This is, in fact, the most significant aspect for Israel of the court's decision. Support of American Jewry for even the most obvious of causes, such as the fact that Jerusalem is not only in Israel but is its capital, can any longer be assumed.

It also means that, by and large, and with exceptions, the Republican Party is and will remain much more favorable to Israeli interests than the Democratic Party (all three Jewish justices are democrats), but it can also be assumed that American Jews will continue overwhelmingly to support the democrats.

Norman A. Bailey, Ph.D., is Adjunct Professor of Economic Statecraft at The Institute of World Politics, Washington, DC, and teaches at the Center for National Security Studies and Geostrategy, University of Haifa.

Published by Globes [online], Israel business news - - on June 30, 2015

© Copyright of Globes Publisher Itonut (1983) Ltd. 2015

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