There was also constant, casual antisemitism around me. My father would boast of how Adolf Hitler was a hero, his only failing being that he didn’t kill enough Jews.
What changed? In Waterstones one day I found myself in the Israel and Palestine section. To this day I don’t know why I actually pulled it off the shelf, but I picked up a copy of Alan Dershowitz’s The Case for Israel.
In my world view the Jews and the Americans controlled the media, so after a brief look at the back, I scoffed, thinking “vile Zionist propaganda.”
But I decided to buy it, eagerly awaiting the chance to deconstruct it so I could show why Israel had no case and claim my findings as a personal victory for the Palestinian cause.
As I read Dershowitz’s systematic deconstruction of the lies I had been told, I felt a real crisis of conscience. I couldn’t disprove his arguments or find facts to respond to them with. I didn’t know what to believe. I’d blindly followed for so long, yet here I was questioning whether I had been wrong?
I decided to visit Israel to find the truth. I was confronted by synagogues, mosques and churches, by Jews and Arabs living together, by minorities playing huge parts in all areas of Israeli life, from the military to the judiciary. It was shocking and eye-opening. This wasn’t the evil Zionist Israel that I had been told about.
After much soul searching, I knew what I had once believed was wrong. I had to stand with Israel, with this tiny nation, free, democratic, making huge strides in medicine, research and development, yet the victim of the same lies and hatred that nearly consumed me.19
Not all people were so positively influenced. A woman in England asked the manager of a large bookstore for a copy of The Case for Israel. He responded, “There is no case for Israel.”20
I have devoted much of my seventh decade to the defense of Israel (while continuing to criticize many of its policies, especially regarding settlements). This has earned me the titles “the Jewish State’s lead attorney in the court of public opinion”21 and “America’s most public Jewish defender.”22 It has also earned me the titles “Ziofascist,” “Jewish Nazi,” “Tool of the Likud,” and “Israel Firster.”23
It is these latter titles that have brought about the most recent change in my life, during my eighth decade. Until recently, I was always known as a liberal Democrat, aligned politically with the likes of Senator Ted Kennedy, President Bill Clinton, Secretary of State Hillary Clinton, Senator Hubert Humphrey, Justices Arthur Goldberg and William Brennan, the Reverend Martin Luther King, and Judge David Bazelon. The organization with which I have been most closely associated has been the American Civil Liberties Union, on whose national and local boards I have served. The causes with which I have been most often associated were freedom of speech; opposition to the death penalty; due process for criminal suspects and defendants; the separation of church and state; racial, gender, religious, economic, and sexual orientation equality; and political accountability. Indeed, when my name has been mentioned for judgeships and other government positions requiring Senate confirmation, I have been generally regarded as “too liberal” to be confirmed.
Today, my views on the above subjects remain essentially the same, but because of my support, critical as it may be, for Israel, I am now widely regarded as a “conservative,” a “right winger,” a Republican, a “sell-out,” even a fascist. Many college and university students have no idea of my views on the core issues that separate liberals from conservatives (inexact as those categories are). All they know is that I defend Israel, and that is enough for them to brand me as “politically incorrect” and worse. This is the way MJ Rosenberg, an anti-Israel blogger who used to work for Media Matters, a Democratic think tank, put it:
Dershowitz is not a Democrat. The only issue he cares about—and the only issue he ever spouts off about—is Israel. Unlike most Americans, say 99%, Dershowitz has no particular opinion on any issue that does not relate to Israel.
Rosenberg’s obsession over Israel’s imperfections has blinded him, and others of his ilk, to the fact that the vast majority of my books, op-eds, cases, and causes relate to civil liberties and criminal and constitutional law. Despite this reality, and because of my support for Israel, Noam Chomsky has absurdly called me “a passionate opponent of civil liberties.”24 And despite my longtime opposition to Israeli civilian settlements and to the “greater Israel” movement, Andrew Sullivan has mendaciously characterized me as a “greater Israel fanatic.”25 Whether these lies are a result of ignorance, willful blindness, or malice, they have spread widely across the Internet and have changed my image among some thoughtless Israel haters.
My centrist views regarding Israel have also resulted in calumny from the pro-Israel hard right, many of whose adherents are appalled at my support for a two-state solution and my opposition to some Israeli settlement policies. I have been called a “traitor to the Jewish people,” a “vapid, doctrinaire leftist,” a “willfully blind hypocrite,” “a liberal first, a Zionist second,” and someone who “would never offer an opinion which could remotely be perceived as politically incorrect.”26
This last change—the effort by the hard left to erase my long history and continued espousal of liberal policies coupled with the effort by the hard right to erase my long history and current espousal of centrist Zionism and support for Israel—is not one that I have brought about by changing my views or actions, as was the case with the earlier changes. I have done nothing different. My views about Israel, the two-state solution, and the settlements have remained relatively constant over the past forty-five years. It is the world around me that has changed with regard to Israel, and attitudes toward me have changed because of this. I will continue to live by my principles. I’m probably too old and too set in my ways to change even if I wanted to, which I don’t. I will not adapt my principles to changing attitudes, when I believe that these changing attitudes are wrong and bigoted. But I must recognize that the perception of me by many others has changed. So be it.
THE CHANGING LAW
How will our legal system change over the next half century? I began my career during the golden age of law. The Supreme Court was the most respected, indeed revered, institution of government, at least among my peers, teachers, and family members.27 The justices had ended segregation, helped to constrain McCarthyism, kept high the wall of separation between church and state, protected the rights of those accused of crime, and applied the rule of law fairly, without taint of partisanship.
The United Nations was viewed as the protector of universal human rights. It was going to replace war with law.
Young people were flocking to law school in order to do good and repair the world. The legal profession was respected.
Of course this idealized image was, in reality, far from perfect. Law firms remained largely segregated. Judicial corruption was rampant in many parts of the country. The remnants of McCarthyism still constrained freedom of expression. Racism, sexism, and homophobia were still common among lawyers in many places. And human rights were absent throughout most of the world. But the important trends were all pointing in the right direction—toward equality, justice, and the rule of law.
In which direction are today’s trends pointing? What do they tell us about the rule of law over the coming half century?
These questions do not allow for simple, single directional answers, but some disturbing trends are discernible.
THE AUTHORITY OF THE SUPREME COURT WILL DIMINISH OVER TIME
The Supreme Court was never intended, by our framers, to have the power it has assumed since the ratification of our Constitution.28 The judiciary was expected, according to the Federalist Papers, to be “the least dangerous” branch of our government, because it lacks “the sword” of the executive and “the purse” of the legislative branches. “It may truly be said to have neither force nor will, but merely judgment.”29 In other words, whatever authority the Supreme Court is to enjoy must be earned by the soundness of its “judgment” and
the public’s perception of the justices as fair and above the partisan politics expected of the “popular”—that is elected—branches of government.
This authority was—with some striking exceptions—well earned from the time of Chief Justice John Marshall through the end of the twentieth century. It was never without controversy, whether in the years leading up to the Civil War, to the New Deal, or to the “activist” Warren court. But never before the beginning of this century have the justices been accused of playing partisan politics—of engineering outcomes that favor their own political parties and candidates. Yet that is precisely what many, if not most, Americans believe the Supreme Court did in Bush v. Gore,30 and in the Citizens United case.31 In Bush v. Gore, as I wrote in my book Supreme Injustice, the five Republican justices voted inconsistently with their own prior decisions to assure that a Republican was elected president. In Citizens United, they did much the same thing. According to reporting by Jeffrey Toobin in the New Yorker, Chief Justice John Roberts, in deciding how to resolve the complex and contentious issues raised by the Citizens United case, had a single criterion: What would be best for the Republican Party? If this is true, it reminds me of my grandmother’s single-mindedness. When I came home from a Brooklyn Dodgers game and reported that the home team had won, my grandmother asked, “Yeah, but is it good or bad for the Jews?” The difference is that my grandmother was not the chief justice of the United States, whose job description includes a commitment to be nonpartisan when deciding cases.32
In previous eras of controversy, the divisions among the justices were less along partisan and more along ideological lines. The New Deal was opposed by justices appointed by both parties. Earl Warren (a liberal Republican) and William Brennan (a liberal Democrat), who generally voted for liberal outcomes, were appointed by a Republican president.
It is inevitable that an activist Supreme Court—whether activist on behalf of the left or the right—will eventually lead to a more partisan judiciary. When courts limit themselves to deciding narrow legal issues that affect only the particular litigants before them, the general public is less interested in who serves as judges. But when the courts become involved in highly controversial political issues that affect everyone—abortion, presidential elections, gay rights, and so forth—then the general public begins to care who is deciding their fate. The nomination and confirmation of judges become more contentious and partisan. Politicians do not want to buy “a pig in a poke.” They want to be sure they know what they are getting, and they want judges who will vote their political preferences.
This change has occurred all over the world, beginning with the United States.
Even before the Supreme Court’s self-inflicted wounds cut into its credibility, the power of the justices was somewhat overstated by many academics, media analysts, and members of the public. The Supreme Court is, after all, just a court. It decides only issues presented to it by litigants in actual cases. It does not initiate policy changes. It is a reactive, rather than proactive, institution—even when it is in an “activist” mode. Justices such as Arthur Goldberg, William O. Douglas, Warren Burger, and Antonin Scalia may have brought proactive agendas with them to the high court, but they soon came to realize how difficult it is to implement those agendas through an institution that has neither “sword” nor “purse” nor the ability to ensure that its policy preferences are carried out by the other branches.
Nor are the justices all paragons of virtue. Some are petty, others bigoted, and still others not particularly learned in the law. As Justice Jackson eloquently put it: “We are not final because we are infallible, but we are infallible only because we are final.”33
As I demonstrated in Chapter 6, the Supreme Court adamantly rejected my approach to “vicarious offensiveness”—people being offended by the mere knowledge that others might be viewing pornography—as a matter of constitutional law. But the public accepted that approach, which has now become the law in action throughout the nation. The same can be said about the death penalty, which—if one were to read only Supreme Court decisions—should be increasing in its application. But the law in action has reduced the frequency of executions dramatically since the justices restored the death penalty, as a matter of constitutional law, in 1976. This phenomenon may also be in evidence with regard to race-specific affirmative action, which will likely continue to matter, no matter what the justices say. It may also be in evidence in cases in which the Supreme Court upholds the wall of separation between church and state only to see it eroded in practice by school administrators and other bureaucrats who believe that a little religion never hurt anyone. Nor could the high court reverse the trend toward equality for gays, regardless of how it decides particular cases.
On the basis of what I have observed over the past fifty years, I predict that the Supreme Court’s moral authority will be further diminished over the next fifty years. The golden age of the rule of law has become tarnished by the partisan politicization of law, especially by the Supreme Court in Bush v. Gore, a decision that administered a self-inflicted wound on our judiciary.
At the same time, the power of the legislature will continue to diminish and the authority of the executive continues to expand. The imperial presidency has taken on new powers as the perceived need for quick and efficient action has increased The result is a weakening in our system of checks and balances as process becomes subordinated to outcome, and outcome becomes more dependent on money.
THE AUTHORITY OF THE UNITED NATIONS WILL DIMINISH OVER TIME
A similarly destructive process has diminished the moral authority of the United Nations and its constituent bodies, most especially the Human Rights Council and the International Court of Justice. This process will continue unless the United Nations makes considerable structural changes, which is highly improbable. The diminishing credibility of the UN will also affect nongovernmental “human rights” organizations, especially those that are seen as biased either against or in favor of the West. The International Criminal Court, which has up to now resisted any show of bias, will be tested over the coming years. Human rights around the world will continue to suffer, as organizations refuse to follow the correct priority of dealing with the worst first.
THE FUTURE OF ISRAEL
The nation-state of the Jewish people will remain an endangered democracy. It is the only nation in the world today whose very existence is challenged by other nations and by hundreds of millions of people. Since much of the hatred directed against Israel is religious, irrational, and deep-seated, the usual rules of deterrence that maintained a cold peace between the United States and the Soviet Union and between Israel and secular Arab regimes, such as Mubarak’s Egypt and Assad’s Syria, are not as effective and do not guarantee rational decision making. The unpredictable outcome of the Arab Spring, Iran’s quest for nuclear weapons, Turkey’s movement away from secularism, and the thus far unsuccessful efforts to resolve the Israeli-Palestinian conflict make predictions even more daunting. But the likelihood of Israel becoming a “normalized” Middle Eastern country, accepted by its neighbors, is slight. Nonetheless, Israel will continue to thrive scientifically, economically, militarily, and in every other way that depends on its own human capital and innovative character.
Anti-Semitism, often disguised as anti-Zionism, will increase in Europe and other parts of the world as the Holocaust fades from memory. It will soon return to pre-Holocaust levels among many Europeans, even if Israel makes peace with the Palestinians.
INTERNATIONAL LAW WILL BE LARGELY REPLACED BY TRANSNATIONAL LAW
International law—that is, law applied by international bodies such as the International Court of Justice—is on life support and may be headed toward an unceremonious death. Transnational law—that is, the law applied by domestic courts to crimes and transactions that cross national borders—is thriving, and may well replace much of what has traditionally been called international law. The reasons for the likely demise of international law is
similar to the reasons why the United States Supreme Court and the United Nations will likely suffer a decline in authority. The institutions that apply international law have become partisan and biased. Moreover, because there is no international “legislature” (aside from the United Nations), academics have played a disproportionate role in defining the substance of international law. This too has resulted in ideological bias against Western nations. As a result, international law itself, to the extent that law is defined by the precedents of the courts and the writings of academics, has been skewed by partisan and ideological considerations. Most reasonable people do not take seriously the pronouncements of courts or other institutions associated with the United Nations. They also recognize the bias of the academy. They do take seriously the pronouncements of credible domestic courts or arbitration boards in resolving disputes that are multinational in nature.
An exception to this trend may be the International Criminal Court, which is not a creature of the United Nations but rather of a multinational treaty. Its credibility will depend on whether or not it succumbs to pressures from its constituent governments and ideological staff members, or whether it can administer justice in an independent and neutral manner.
THE FUTURE OF FREE SPEECH: MORE SPEECH AND MORE CENSORSHIP
There will be both more and freer speech throughout the world, but at the same time there will be more attempts to regulate speech, especially on the international level. Every new technology—from the printing press to the Internet—has made the job of the censor both more challenging and, in the eyes of the establishment, more important. From the time humans were first able to communicate with one another, the establishment—whether it be tribal leaders, religious leaders, or the state—has tried to limit their speech through censorship. In the beginning, the censorship was ad hoc and somewhat informal, but as the threats to the establishment became greater through the democratization of speech, censorship became more formalized and structured. Before the advent of the moveable-type printing press, which made the mass production of books more easily accessible, censorship was not deemed as essential to the survival of powerful institutions like the Church, the monarchy, and the state, because only the educated and affluent elite had access to the printed word, and most such establishment figures (with some striking exceptions, such as Martin Luther and Erasmus) sought to preserve the status quo.
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