Interactions between Scalia, and Jews and Judaism were not always predictable
By RON KAMPEAS
WASHINGTON (JTA) — It’s a matter of dispute as to whether Antonin Scalia, who died Saturday, was the Supreme Court’s most conservative jurist. Some think Clarence Thomas deserves the title, while others say Samuel Alito may soon claim it.
Scalia was, however, the conservative jurist likeliest to stir passions with his acerbic, slashing style apparent both in his opinions and his speaking appearances. Conservatives adored him as a truth-teller upholding the Constitution; liberals derided him as an ideologue trashing the founding document.
That also was generally reflected in Jewish reactions to Scalia: Orthodox Jewish groups praised many of his parsings of church-state separations; non-Orthodox groups critiqued them.
A typical instance of divided reactions was in 1992, when he referred to Rabbi Joel Teitelbaum, the Satmar rebbe who had fled Nazi-occupied Hungary, in his dissent to the ruling that said New York State had overreached in creating a separate school district for the Hasidic enclave of Kiryas Joel.
“The Grand Rebbe would be astounded to learn that after escaping brutal persecution and coming to America with the modest hope of religious toleration for their ascetic form of Judaism, the Satmar had become so powerful, so closely allied with Mammon, as to have become an ‘establishment’ of the Empire State,” he wrote, mocking the majority’s assertions that New York State had violated the Establishment Clause.
Other interactions between Scalia and Jews and Judaism were less predictable. Here’s a roundup: Scalia argued against making compliance with the Arab boycott illegal.
As an assistant attorney general under President Gerald Ford, Scalia in 1975 told Congress, which was then considering anti-Arab boycott legislation, that the practice of denying Jews travel visas to Arab countries did not contradict U.S. anti-trust laws because the scope of such denials was narrow.
“There is a question whether a boycott of this sort, which, in effect, requires an American company to choose whether it wishes to have certain types of business relations with Israel or to have dealings with the Arab countries, has a sufficient impact upon U.S. foreign commerce to come within the Sherman Anti-Trust Act,” he said. “The act only proscribes activity which has a ‘material adverse affect’ upon our foreign commerce.”
Scalia also argued that the refusal to hire Jews to do the work was not in of itself discriminatory; the companies could argue it was against their interest to hire someone unable to obtain a visa, whatever the reasons were for that inability.
Scalia was arguing administration policy and was not yet a judge, when his opinions would be his own. Scalia overruled the FBI, allowing a civil rights rabbi to buy his first computer.
Rabbi Arthur Waskow, who founded Philadelphia’s Shalom Center, wrote in an email Monday that he remains amazed that Scalia was one of three federal appeals court justices who in 1986 upheld a lawsuit that he and eight other activists had brought against the FBI a decade earlier for violating their right to assembly through wiretapping and other illegal means.
“When the FBI appealed, we won again. The DC Circuit Court of Appeals’ unanimous decision in 1986 included then Judge Antonin Scalia — a fact that astonished me then and still does,” Waskow wrote three years ago, recounting the case.
“The damages I received were $8,000. With $2,000 I bought my first computer, for use in the Shalom Center’s work. To each of my two children I offered a $3,000 grant to support them for a year if they chose to do political activist work of their choice.”
Waskow’s son, David, used the money to advocate for tenants’ rights, and his daughter, Shoshana, worked for a year at a shelter for battered women. Jews were anything but trippy when Scalia ruled against the use of a hallucinogen.
Scalia wrote the majority opinion in a 1990 ruling against a Native American church that used peyote as part of its sacrament. A number of Jewish groups had backed the church in friend-of-the-court briefs.
“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate,” Scalia wrote.
The effort to overturn the court’s ruling through legislation, in this case the Religious Freedom Restoration Act first passed in 1993, was the rare occasion when there was wall-to-wall Jewish organizational agreement on a church-state issue. Scalia was a big fan of Aharon Barak, Israel’s famously liberal chief justice.
Conservatives attacked Justice Elena Kagan during her 2010 confirmation process for the Supreme Court over her admiration of Aharon Barak, the longtime president of Israel’s high court who spearheaded an activist role for Israel’s judiciary.
Kagan said her expression of admiration in 2006 was a matter of courtesy in introducing Barak when he visited Harvard, where she was dean of the law school, and applied to a country where there was no constitution, so there was no comparison to the role of a U.S. Supreme Court justice.
Scalia did not directly speak on Kagan’s behalf, but those who knew him made it clear at the time that he also admired Barak, and that he had defended Barak from conservatives who decried his activism.
“I mean they don’t even have a constitution over there,” he once told the late journalist David Twersky. Scalia was a big fan of the female Jewish justices on the Supreme Court.
Ruth Bader Ginsburg wrote Monday of her shared love of opera with Scalia and called him her “best buddy.”
David Axelrod, President Barack Obama’s top political adviser in his first term, wrote Monday on CNN that Scalia made it clear in 2009 that if Obama was going to appoint a liberal to the court, it should be a “smart” one. Concerned that Axelrod was not getting his drift, he named his preferred candidate: “Send us Elena Kagan,” he said.
And whereas Ginsburg was a fine opera companion, Scalia preferred taking Kagan hunting. He also had the jump on her in terms of supreme judicial use of the word “chutzpa”: He used it in a 1998 decision, apparently the first such use, whereas Kagan used it in a 2011 dissent. Scalia was a big fan of Jews, period.
Supreme Court justices are sparing in when and where they speak outside the court’s confines; they dread opportunities for their remarks to be taken out of context. Scalia was no different.
Yet he appeared to enjoy appearing in Jewish forums, addressing Agudath Israel of America, Chabad, the Jewish Council for Public Affairs and the Conservativemovement over his career, some of the groups multiple times. Together with fellow justices Ginsburg and Stephen Breyer, who is also Jewish, he inaugurated the National Institute for Judaic Law in 2002.
Only one incident appeared to end on a sour note: Sammie Moshenberg, who then directed the Washington office of the National Council of Jewish Women, remembers Scalia cutting short his appearance at the 1999 JCPA plenum. She had just asked him a question about diversifying the court’s staff. He said he preferred the “best and brightest” for his staffers; she countered that the standard did not preclude women and minorities.
Immediately Scalia turned on his heels and said “‘no more questions’ and left,” she recalled.
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