The Supreme Court announced on Friday that it will get involved in a longstanding dispute between the families of Americans killed in Israel and the government of some parts of Palestine in a case called Fuld v. Palestine Liberation Organization.
The Supreme Court wades into the Israel-Palestine conflict
What could possibly go wrong?
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
Realistically, whatever the justices decide, they are unlikely to have much of an impact on the broader conflict between Palestine and Israel. But the case could reshape the rules governing who can be sued, and where, here in the United States.
Right now, if someone wants to bring a lawsuit, they can’t just file it in any court they’d like. They have to bring the suit in a court located in a place where the person or entity they are suing has ties. In legal terms, this idea is known as “personal jurisdiction.” Typically, personal jurisdiction operates on a sliding scale, with local courts gaining more and more power over a defendant as that defendant builds closer ties to that jurisdiction.
So, for example, a company that has multiple retail outlets and dozens of employees in the state of Texas could likely be sued for virtually anything in Texas’s courts. But a company based in Nebraska that only occasionally ships a product to a Texas customer would be less vulnerable to suit in Texas.
That company could probably still be sued in Texas court over a dispute arising out of that product. But the company probably could not be sued in Texas over a matter that had nothing to do with its business in Texas, such as if its CEO was accused of sexually harassing a subordinate at the company’s headquarters in Nebraska. Instead, the sexual harassment lawsuit would likely need to be filed in a court in Nebraska.
If the Court were to side with the plaintiffs in Fuld, it could upend personal jurisdiction, at least in cases that interest Congress or a state legislature. Americans might be forced to defend themselves in courts in distant states, and potentially in states with draconian laws and hostile judges.
The issue before the Supreme Court involves several Americans who were killed while abroad in Israel or Palestine. One of these Americans, Ari Fuld, was fatally stabbed during a 2018 attack outside a shopping mall in the West Bank.
The identity of the attacker is not mentioned in the lower court’s decision or in the Supreme Court briefing, but Fuld’s family sued the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA), claiming that these two organizations “encouraged, incentivized, and assisted” the attack. (The PLO is the national representative of the Palestinian people, and it runs the PA, a governmental body that manages Palestinian territories in the West Bank.)
Fuld’s family, and other family members of those killed, all brought similar lawsuits in federal court. The problem is that neither the PLO nor the PA have any legally relevant connection to the United States. The attacks took place nearly 7,000 miles from the United States. Federal law largely forbids the PLO from conducting business of any kind in the United States, beyond maintaining a mission to the United Nations.
Accordingly, federal courts have repeatedly dismissed lawsuits claiming that the PA and the PLO may be sued in US court.
However, the families in Fuld have a powerful ally in their fight: the United States Congress.
Congress has passed two statutes seeking to revive the lawsuits after they were dismissed.
The most recent of these statutes was included in a broader appropriations bill that President Donald Trump signed into law in 2019. It provides that the PLO and the PA “shall be deemed to have consented to personal jurisdiction” in federal court if they continue to engage in activities that the two organizations have reportedly engaged in for a long time, such as paying salaries to Palestinians convicted of terrorism offenses in Israeli court.
How Fuld could scramble all Americans’ constitutional rights
The Fuld case could potentially reshape the rights of many Americans, who currently enjoy broad protections against being sued in a faraway court located in a state they’ve never visited. The Supreme Court has long held that the rules of personal jurisdiction are grounded in the Constitution, specifically the guarantee that no one shall be denied “due process of law.”
As the federal appeals court that heard Fuld explained, moreover, “the ‘due process analysis’ in the personal jurisdiction context ‘is basically the same’” regardless of whether someone is sued in federal or state court. That means if the Supreme Court rules that two foreign organizations with few, if any, relevant ties to the US can be “deemed to have consented” to being sued in federal court by an act of Congress, a state legislature could also potentially deem that people who’ve had few contacts with that state may be sued in its courts.
Texas’s legislature, for example, could potentially pass a law stating that abortion providers and clinics throughout the United States are deemed to have consented to suit in Texas courts — where they might be sued for violating a Texas law allowing bounty hunters to collect money from abortion providers, especially if the state legislature also amended that law to specifically provide for such out-of-state suits.
Congress, meanwhile, might allow any abortion provider to be sued in federal court in Amarillo, Texas — home of the notoriously anti-abortion judge Matthew Kacsmaryk.
It should be noted that the Supreme Court ordinarily agrees to hear any case where a lower federal appeals court declares a federal law unconstitutional, and the appeals court’s decision in Fuld effectively neutralized Congress’s 2019 law. So the fact that the Supreme Court took up this case is not necessarily a sign that most of the justices are eager to rewrite the law governing personal jurisdiction.
Still, any issue involving Israel and Palestine inflames passions among US policymakers. So the same sympathy for the Fuld plaintiffs that inspired Congress to enact the 2019 law could also shape the justices’ decision. But a decision in favor of the Fuld plaintiffs could have sweeping implications that stretch far beyond the fraught politics of Israel and Palestine — and that potentially leave all Americans vulnerable to lawsuits before hostile judges.
