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How Antonin Scalia Brought Chutzpah to the Supreme Court

(Haaretz) – The late Justice Antonin Scalia, weighing in on one of his final Supreme Court cases, made it quite clear where he stood on the issue of Jerusalem as Israel’s capital.

When the ruling in Zivotofsky v. Kerry was issued last June, Scalia made the unusual move of reading his dissenting opinion out loud in court – a sign to court-watchers that a justice’s disagreement is particularly strong.

That 6-3 decision struck down a law which would have allowed American citizens born in Jerusalem to list “Israel” as their birthplace on their U.S. passports instead of “Jerusalem.” The State Department had fought the law fiercely, defending its passport policy as necessary to maintain a U.S. position of neutrality on the question of Jerusalem’s sovereignty.

In the oral arguments that preceded the ruling, Scalia’s political leanings were evident in his statements from the bench. Opposition to putting “Israel” on passports does not imply sovereignty, he said, addressing Zivotofsky’s attorney, it “just has an effect on the State Department’s desire to ­­ to make nice with the Palestinians, and your position is Congress has no compulsion to follow that.”

Then, in the written dissent he read in court, he strongly attacked the majority’s ruling which placed the power to recognize foreign governments exclusively with the president, thus giving the White House the right to require passports to state “Jerusalem.”

But Scalia argued that Congress “has the right to decide that recording birthplaces as ‘Israel’ makes for better foreign policy. Or that regardless of international politics, a passport or birth report should respect its bearer’s conscientious belief that Jerusalem belongs to Israel.”

It happened that Aliza Lewin, the attorney who represented 12-year-old Jerusalem-born Menachem Zivotofsky, was the daughter of attorney Nathan Lewin, the lawyer in a key decision Scalia participated in only a few years after he joined the Supreme Court, that rocked the American Jewish community – Allegheny v. ACLU in 1989.

In that decision, the court’s majority, including Scalia, ruled that a Chanukah menorah, when placed alongside a Christmas tree displayed on government property, did not violate the U.S. constitution’s Establishment Clause, which forbids official government endorsement of a religion, and was permissible. That decision opened the doors to a plethora of Chabad-Lubavitch menorahs in public spaces across America every holiday season.

Though Scalia’s positions warmed the heart of Chabad, the vast majority of American Jews, who are liberals, sharply disagreed with his church-state positions and wide berth for religion in public life and too-lax interpretation of the Establishment Clause.

In 2009, J.J. Goldberg wrote in the Forward that Scalia was “bad for the Jews” pointing to his defense of an eight-foot metal cross erected as a war memorial on federal parkland as evidence of what Goldberg felt was his troubling “radical Christian majoritarianism.”

On a personal level, though, Scalia had a disarmingly warm connection with individual liberal Jews, most famously his Supreme Court colleague and ideological opponent Ruth Bader Ginsburg, whom he befriended when they worked together on the on the United States Court of Appeals for the D.C. Circuit, bonding over their shared love of opera and sparking a tradition of spending New Year’s Eve together with their respective families and friends.

“As annoyed as you might be about his zinging dissent, he’s so utterly charming, so amusing, so sometimes outrageous, you can’t help but say, ‘I’m glad that he’s my friend or he’s my colleague,’” Ginsburg was quoted as saying of Scalia in the Washington Post.

He also had a close relationship with former Israeli Chief Justice Aharon Barak, although the two disagreed sharply on fundamental principles of jurisprudence.

When Barak was awarded the American Association of Jewish Lawyers and Jurists 2007 Pursuit of Justice Award, it was Scalia who publicly presented the prize to the man he called a “good friend.” The Forward reported that in Scalia’s introductory remarks, he was “quite comfortable on his home turf, quickly dispensed with one element of incongruity: He was not Jewish, he conceded, merely the most senior justice available. Yet he contended that his Queens upbringing provided him with a sufficient endowment of Yiddishkeit to justify the selection.”

He acknowledged his differences with Barak but “went on to celebrate his fruitful and long-standing relationship with the Israeli judge, and to affirm a profound respect for the man, one that trumped their fundamental philosophical, legal and constitutional disagreements.”

Another impressive claim to fame for Scalia among the Jews was the fact that he – an Italian Catholic – turned out to be the first Supreme Court Justice to use the word “chutzpah,” which he included in a 1998 decision.

The case, National Endowment for the Arts v. Finley, was one in which a group of artists sued the federal body claiming that being denied grant applications violated their constitutional rights. This prompted another withering Scalia dissent to the majority opinion saying, “Congress … was not constitutionally required to fund programs encouraging competing philosophies of government ” and that therefore “it takes a particularly high degree of chutzpah for the NEA to contradict this proposition, since the agency itself discriminates … in favor of artistic (as opposed to scientific or political or theological) expression.”

One commentator attached greater meaning to Scalia’s introduction of the word into the Supreme Court’s vocabulary, saying that “although Justice Scalia felt the need to define the words ‘decency’ and ‘respect’ and called on the use of the American Heritage Dictionary to do so, he did not define ‘chutzpah,’ no doubt because the word is so obviously a part of the English lexicon.

“What does increasing use of the word chutzpah signify?” the analysis continued. “Perhaps it reflects the developing mosaic of the United States. American Jewish lawyers initially faced discrimination in the United States. Large law firms were closed and bar associations turned a cold shoulder. But now a Yiddish term is used in a U.S. Supreme Court decision with hardly any notice.”

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