The Supreme Court’s refusal on Monday to take on a case involving the right of American victims of terrorist violence in Israel to sue the PLO under the federal Anti-Terrorism was most disappointing. It is an unfortunate step backward in the effort to hold sponsors and financial backers of international terrorism legally responsible. Especially disturbing was the fact that the Trump Administration’s Justice Department urged the Court not to take the case.

The court refused to review decision of a U.S. appeals court, which threw out a $655.5 United States District Court jury verdict against the PLO. The lawsuit was brought by 11 American families whose relatives were killed in several terrorist attacks in Israel.

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It is not that the there were no reasonable arguments to be made for the notion that the Supreme Court should not get involved. There were some esoteric procedural issues to be considered and the Justice Department also typically argues that with respect to legal issues that have international and national security implications, or expose American interests to legal actions in other countries, there must ordinarily be deference to the executive branch even when congressional enactments say otherwise. And the Supreme Court usually goes along.

Yet what rankles is not only that in this case those possibilities were rather remote, and the DOJ was doubtless concerned about setting a precedent by going along with Supreme Court review. In the celebrated passport case of two years ago – which involved a law in which Congress authorized the State Department to stamp “Israel” on the passports of those Americans born in Jerusalem – the lawyers for the Plaintiff, Nat Lewin and Alyza Lewin, made a compelling case for the conclusion that the Constitution makes Congress and the President equal partners in the making of foreign policy.

In the case at hand, the equities were clearly on the side of the victim’s families. The DOJ shouldn’t have urged that the Supreme Court should not take the case. And the Court should not have listened.

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