Antonin Scalia Remembered as an Advocate for Religious Freedom

by Yaakov Ort and Menachem Posner – Chabad.org

U.S. Supreme Court Justice Antonin Scalia, who passed away on Feb. 13 at the age of 79, is being remembered as a champion of freedom of religious expression with a deep appreciation for Jewish law, who was a thoughtful and enthusiastic participant in legal symposia on Jewish and American jurisprudence during his tenure on the court.

“When there was no Jewish justice on the Supreme Court, I considered myself the Jewish justice,” Scalia once told legal scholar and attorney Nathan Lewin.

Lewin, a friend and classmate of Scalia’s at Harvard Law School, had argued a number of cases before the Supreme Court, including County of Allegheny v. ACLU in 1989, when Scalia was part of the majority in a landmark ruling that a menorah erected by Chabad-Lubavitch emissaries could stand on public property.

Lewin said that after Scalia’s appointment by President Ronald Reagan in 1986, he saw himself as “the guardian of the Jewish heritage within the Supreme Court” since no Jewish justice sat on the court between the resignation of Justice Abe Fortas in 1969 and the 1993 appointment of Ruth Bader Ginsburg by President Bill Clinton. Although diametrically opposed on most legal issues, Ginsburg recalled that she and Scalia remained “best friends” during more than 20 years of working together.

Scalia’s interest in Jewish law was longstanding. Lewin said Scalia believed that much of Lewin’s legal acumen was rooted in a lifelong study of theTalmud. He also pointed out that “the justice’s admiration for Jews and Jewish learning explains the frequent references in his opinions to the Talmud and other Jewish sources, and the significant number of Orthodox Jewish law clerks he hired.”

In his first public participation in a formal symposium on Jewish and constitutional law, Scalia was a panelist and keynote speaker in 1995 at the National Conference on Jewish and Contemporary Law in Los Angeles, attended by some 500 judges, attorneys, law professors and rabbis. Also on the panel and also delivering a keynote address was Rabbi Adin Even-Israel (Steinsaltz) of Jerusalem. Both scholars spoke of the contrasts between the two legal traditions. Earlier in the day, Even-Israel (Steinsaltz) and Scalia led a closed seminar for judges on “The Art of Judging.”

In later years, Even-Israel (Steinsaltz) and Scalia would participate in a number of joint symposia on Jewish and civil law, including a 2014 dialogue at the Museum of Jewish Heritage in New York.

‘The Unique Dynamics of Jewish Law’

As part of the 1995 symposium, Scalia began the main session with a story of the Baal Shem Tov, the founder of the Chassidic movement, recalled event organizer Rabbi Dovid Eliezrie, director of the North County Chabad Center in Southern California. “He arrived with a profound sense of inquiry and came to understand the unique dynamics of Jewish law. It was rooted in his deep sense of intellectual curiosity,” said Eliezrie.

Rabbi Nachman Levine, an academic and educator who attended the symposium, recalled that true to his reputation, Scalia was “very funny” and made it a point to speak in a booming baritone so that everyone could hear him during Shabbat, when there were no microphones as they could not be used by Jewish participants.

Levine recalled that since Scalia’s approach to constitutional law was rooted in understanding and not tampering with the original intent of its founders, a fair amount of discussion centered around the Oven of Akhnai. In this Talmudic lesson, the sages determined that even though miracles and heavenly voices supported the opinion of one rabbi, the final law followed the rule of the majority of sages.

“He was very clearly familiar with the story and how this Jewish legal principle of majority rule among expert judges—and not even Divine signs—serves as the foundation for Jewish jurisprudence,” said Levine.

“I asked one of the judges at the Shabbat table how many jurors would need to vote guilty for O.J. Simpson, who was then on trial for murder, to be convicted,” recalled Levine. “The Jewish judge said it would need to be unanimous. I said that in Jewish law, if the verdict was unanimous, then the plaintiff would walk.”

The judge called out, “Nino! [Justice Scalia’s nickname] You hear that? In Jewish law, if the jury is unanimous, he walks!”

“Scalia slapped the table so hard that the gefilte fish flew and said, “I like that! Let me think it through … of course: It’s a Jewish court. If everyone agrees, something is wrong!”

Scalia then asked if the Jewish judges could “see each other’s cards.”

“What if one person saw that everyone voted guilty, and he holds that the accused is innocent? Maybe he should vote guilty to get the guy acquitted?” mused Scalia. “He was so quick!” said Levine.

On Private and Public Rights

In 2002, Scalia spoke at the National Institute of Jewish Law’s inaugural event at the Supreme Court in Washington, D.C.

Rabbi Nosson Gurary, director of the Chabad House of Buffalo, N.Y., who then was a professor at the University of Buffalo Law School, recalled at the time speaking to Scalia about the importance of American jurists’ studying other systems, especially one as richly developed as Jewish law. “Knowledge of another legal system helped him to understand [the U.S. legal] system better,” said Gurary.

In 2009, Scalia participated in a daylong conference of the Institute of American and Talmudic Law, held at Chabad Lubavitch of Midtown Manhattan and chaired by Lewin and the dean of the institute, Rabbi Shlomo Yaffe.

In a session on “The Right to Privacy and Individual Liberties From Ancient Times to the Cyberspace Age,” Scalia argued that while there is not necessarily a constitutionally guaranteed right to privacy that protects every detail of a person’s life from being published on the Internet or elsewhere, that freedom should be used responsibly.

“The American right to privacy is a complex and obscure right that the judiciary should tread lightly when analyzing,” Scalia suggested. The justice system, he declared, is meant only to define the rights specifically declared in the Constitution and, if need be, to decide whether the legislature overreached in its interpretation of America’s foundational document of governance.

“The vast majority of [one’s] rights are not constitutional,” Scalia asserted. “Most of them can be taken away.”

Rabbi Yaffe recalled that “Justice Scalia’s intelligence, decency, passion for truth and respect of our Constitution are legendary. Many disagreed with his positions on a broad range of issues, but none doubted his sincerity.”

“Every human society must create a just and equitable legal system—governed not by the personal caprices of the powerful or the mood of the mob, but by the rule of law,” concluded Yaffe. “Justice Scalia devoted his life to this endeavor.”

‘The Flexibility of His Mind’

Scalia, who was married for 56 years and the father of nine children, was remembered by Lewin and Even-Israel (Steinsaltz) as a warm and engaging individual.

“He and his wife were guests in our sukkah,” recalls Lewin, “and he was kind enough to meet with law-school classes I brought to Washington to hear Supreme Court arguments.

“Zealously liberal students who claimed not to be able to tolerate Scalia’s judicial philosophy melted into personal fans after they met and spoke with the human being,” recalled Lewin. “Rather than meeting the cantankerous grouch they were expecting, they saw and heard from a funny, modest, gregarious and intellectually honest judge.”

Lewin said Scalia would readily accept recommendations to address Orthodox Jewish gatherings, such as colloquia run by Chabad; sessions and dinners with Agudath Israel of America; and a mass meeting at YeshivaUniversity, where he and Lewin discussed current issues of constitutional law and public policy.

Each event, said Lewin, was “thunderously successful.”

Even-Israel (Steinsaltz) recalled that “in our conversations, I understood something about his brilliance and his efforts to get to a permanent understanding of law. His stance on the Constitution seemed to do with the personality, with his belief in constant and permanent standards, and also with the flexibility of his mind.”

“In his death, America has lost one of its most prominent figures,” the rabbi concluded. “He was very straightforward and very courageous, pleasant, without losing his core. With all the brilliance of his mind, he was, in truth, a believing person and a good man.”