The Supreme Court has opened a new session of cases, and a number of them affect Jewish life in the United States. But there is one issue which is of great interest to a number of Jewish groups and which is not on the agenda: the credibility of the Court.
A series of bruise confirmation battles over the past several years and a pair of recent rulings – on the controversial Texas abortion law and President Biden’s proposed moratoria on deportations in the wake of the COVID-19 – have polarized public opinion on the court. Following last year’s rush by Republicans to secure Amy Coney Barrett’s confirmation as the Court’s sixth Tory Judge, following the death of Ruth Bader Ginsburg, left-wing groups have called for the Court to be reconstituted in adding more judges.
Sensing the growing criticism, several judges – liberal and conservative – have spoken in recent weeks. Barrett stressed that judges should not let personal biases influence their decisions. Samuel Alito dismissed claims that court conservatives formed a “shadow role” in pushing through decisions without the traditional debate sessions.
This has not appeased many Jewish organizations, which are concerned about how the erosion of the court’s reputation could possibly harm Jews.
“There will be a time when the prestige of the court will be necessary to protect the individual or collective rights or the institutional interests of the country, and the prestige should not be wasted,” said Marc Stern, general counsel for the centrist American Jewish Committee. .
Rabbi Jonah Pesner, who heads the Reform Movement’s More Progressive Religious Action Center, said recent court rulings set him on the path to sweeping changes, which severely restricted the right to abortion.
“We are concerned about the hyper-polarization of the court and the potential for it to be delegitimized as it is so out of step with thoughtful consensus issues, like access to abortion,” Pesner said.
Under this cloud, the Court’s judges will hear a series of hard-hitting cases this fall. These are the ones that Jews should know about.
The Threat Against Roe v. Wade
The Court agreed to hear Dodds v. Jackson Women’s Health Organization, pitting the state of Mississippi, which bans most abortions after 15 weeks, against an abortion clinic.
Lower courts, including those known to be conservative, have upheld the abortion clinic’s claim that the law violates the landmark 1973 ruling that upheld a woman’s right to an abortion, Roe. v. Wade, who argued that abortions are legal until the fetus is viable, between 22 and 24 weeks gestation.
The National Council of Jewish Women is running a friend of the court case on behalf of the clinic, with some 50 organizations signed on, and the Religious Action Center and the Anti-Defamation League have signed separate amicus cases.
The NCJW has launched an initiative, 73Forward (in reference to the year of the decision), which will educate women about abortion and facilitate access to abortion. It includes a section called Rabbis for Repro, which now has some 1,500 rabbis, to emphasize that for many Jews, access to abortion is a religious imperative.
The right place of a painting by Pissarro
In Cassirer v. Thyssen-Bornemisza Foundation, the descendants of a Jewish woman forced to cede a painting by Camille Pissarro to the Nazis for her freedom demand its return to its current owner, a state museum in Madrid.
The case depends on whether California or Spanish law applies here.
Spanish law allows an owner to keep stolen property if there was no reason at the time of purchase to believe it was stolen, and if no one shows up to claim it within a given time frame. In the United States, on the other hand, there is no time limit for the original owner to claim stolen property.
Stern said the AJC was considering an amicus brief, in part because he would like the court to consider a narrower than thorny issue of whether Spanish law replaces US law: whether the museum is lying.
Stern doesn’t believe the museum did due diligence when it acquired the painting in 1999 and may not be entitled to the painting, even under Spanish law.
“You could write a brief like ‘no literate person could believe it wasn’t stolen’,” he said.
Pay for religious schools
Accepting a case involving the separation of church and state is the only sure way to get Jewish amicus dueling briefs before the Supreme Court. Carson v. Makin does the trick.
In Maine, some parents want to use public funds to send their children to religious schools. Maine and Vermont are the only two states that allow parents of children in rural districts without high school to refuse to send their children to public school in a neighboring district. Instead, they can use public funds to send them to a private school in the district, unless that private school is religious.
The parents in Carson v. Makin say this ban is unconstitutional.
The Orthodox Union has filed an amicus brief on behalf of the plaintiff parents, and the Anti-Defamation League is about to file an amicus brief on behalf of the state of Maine.
Steve Freeman, vice president of civil rights and director of legal affairs for the ADL, said case law allows public funds to be spent on religious schools as long as there is no religious instruction – for example, in the use of funds for a playground. . He said the ADL, in its amicus brief, will join the arguments that public money should not fund indoctrination in a faith.
Nathan Diament, director of the Orthodox Union in Washington, said the distinction the ADL hopes the court will uphold may be impossible to make: There is little a religious institution teaches that is not grounded in a religious belief, even if the subject is secular, he says.
In addition, he said, it is too late to stop public funding of religious institutions, citing as an example last year’s decision to provide pandemic assistance to religious institutions, which were benefiting bipartisan support.
The American Jewish Committee, once a reliable partner of the ADL and other Jewish civil rights groups in defending the separation of church and state, will not intervene, Stern said.
“There has been a provision within the agency to reconsider our position on helping parish schools,” he said.
The case of the Christian flag
The ADL and AJC are both considering voting on Boston’s rejection of a Christian group’s request to fly a Christian flag in front of City Hall, a case known as Shurtleff v. Boston.
The Christian group has sued on free speech grounds because the city makes the flag pole available to local groups for a limited period of time. The exclusion of a religious group is discriminatory, argues the group.
ADL’s Freeman said the case is “kind of a critical issue that waving a religious flag in front of city hall is not in line with what the editors had in mind when they adopted the first amendment “.
Stern of the AJC said it could be argued that waving a religious flag on public land amounts to an endorsement of the faith, but he was also concerned that the precedent was not on the side of the separatists of the Church and State: Courts have for decades upheld the rights of Jewish groups (most commonly the Chabad-Lubavitcher movement) to position menorahs on public property during Chanukah.
Listening to the children of Parkland
In New York State Rifle & Pistol Association v. Bruen, a gun group join two individuals challenging a New York State law that only allows concealed handguns to be carried outside the home if someone can prove “just cause” for a need for self-defense.
Pesner, of the reform movement, said his group had joined an amicus dossier, in part because young Reform Jews have focused on gun control since the deadly 2018 high school shooting in Parkland, Florida. There were a number of Jewish casualties killed in the attack, and local Jews in response defended the gun reform through groups affiliated with the Reformation.
This plea was in part also motivated by racial equity, Pesner said. “Our young people in Parkland say they have witnessed a horrific tragedy, but it takes place every day in cities like Washington DC and Chicago and does not receive the same attention.”
The Community College Crank Case
In Houston Community College System v. Wilson, a former community college board member sued the board for passing a resolution blaming him for his relentless opposition to the board’s agenda. He allegedly leaked confidential information, sued the system and trolled other members’ voters with robocalls.
Wilson said the censorship violated his right to free speech. A lower court said the censorship was nothing more than a statement and dismissed the case. Then a court of appeal restored it.
So why is this the only case, so far, that the AJJ deals with in an amicus brief?
Stern said a decision upholding Wilson’s claim – that the community college board was limiting his freedom of speech – could have dire consequences for Jewish groups who speak out against anti-Semitism. Government officials should have the freedom to call people out for bad behavior without being prosecuted, he argued, and also linked it to AJC’s efforts to get governments to adopt the definition of anti-Semitism of the International Holocaust Remembrance Alliance.
“If every time a government official spoke out against anti-Semitism he was guilty of violating free speech, it would be a serious setback,” Stern said.
Uphold the right of undocumented migrants to be heard
The Court heard two cases, Garland v. Gonzalez and Jonson v. Arteaga-Martinez, in which undocumented migrants in detention who face danger if deported to their home country argue they are entitled to a hearing after six months to determine if they can be released on bail .
HIAS, the leading Jewish immigration advocacy group, is following the cases closely, in part because the Supreme Court has argued for continued detention in recent cases, said Andrew Geibel, the group’s policy adviser.
Geibel said detainees are susceptible to infection with COVID, suffer from mental health deprivations and are unable to adequately prepare for their defense while in detention.