Supreme Court appears undecided on PLO lawsuit
The Fuld v. PLO case is set to determine whether American victims of Palestinian terrorism can sue the PLO and PA over their payments to terrorists and their families

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United States Supreme Court
The Supreme Court heard oral arguments on Tuesday in Fuld v. Palestine Liberation Organization, a case that aims to determine — after decades of litigation and legislation — whether American victims of Palestinian terrorism can sue the PLO and Palestinian Authority for their payments to terrorists and their families.
The justices extensively questioned lawyers for the families of terror victims, the U.S. government and the PLO, giving few hints as to how the final ruling in the case would land.
“I think there’s a lot of ways the court could skin the cat and I think there will be multiple opinions written, and it’ll be a really interesting decision,” Mark Pinkert, an attorney with Holtzman Vogel, who filed an amicus brief on behalf of a slew of Jewish organizations in the case, told Jewish Insider.
Key issues that justices focused on at the hearing included whether the PLO and PA enjoy any due process rights under the Constitution, the extent to which the courts should defer to the executive and legislative branches on national security matters and the particular rules and tests that should be applied to determine whether the PLO and PA should be subject to U.S. jurisdiction for actions that take place outside the U.S.
The legislation underlying the case dictates that the PLO and PA subject themselves to U.S. jurisdiction under either of two conditions: first, that they continue the terror payments, and second, that they conduct activities within the United States.
The justices, Pinkert noted, seemed skeptical of the first condition as sufficient to provide American jurisdiction, and the U.S. government appeared to concede that issue during oral arguments. He said the justices may remand the case to the Second Circuit court to further deliberate on the second condition. Pinkert noted that the Second Circuit has not ruled in the plaintiffs’ favor in the past, so that outcome may not produce a favorable result for them.
Pinkert said he views the Court as unlikely to fully adopt the petitioners’ argument that there should not be any limits on Congress’ ability to assert jurisdiction in foreign policy matters, and that the Court will have to decide where to place those limits. He said those questions remain unclear.
Pinkert said that Justice Clarence Thomas’ questioning indicated that he may believe that the PLO and PA do not have due process rights, given that they are not a state recognized by the U.S. government, nor do they fit the original definition of “persons” under jurisprudence.
Justice Brett Kavanaugh appeared inclined to give broad deference to the executive branch and Congress and rule in the plaintiffs’ favor, Pinkert added.
On the other side, Pinkert said that Justice Sonia Sotomayor seemed particularly skeptical of the underlying legislation and that Justices Neil Gorsuch and Samuel Alito also appeared dubious of the effort to assert broad federal power.
“I think you’ll see some interesting splits in this case,” Pinkert said. “I think … the justices were really trying to wrestle with the correct standard, and trying to pin down the government and the petitioners … I don’t think that means they’re going to rule against them, but I do think they’re trying to wrestle with those questions so that they can write an opinion that is clear enough and that is correct.”
Ultimately, he said, the decision could have implications well beyond this case, with “pretty sweeping and broad impact on how personal jurisdiction is understood.”