Like the Houses of Hillel and Shammai, the two Supreme Court justices understood how to have a deep and healthy relationship with their intellectual or political opponent. If only our politicians could do the same, it would unite our country, instead of dividing it.
...Scalia’s death prompted pundits to highlight his now-famous relationship with Jewish liberal justice Ruth Bader-Ginsburg. Despite their radically differing political philosophies, they remained close friends throughout their years on the court. They would attend operas together and their families would vacation together. Their off-the-bench friendship was so similar to a Romeo-Juliette bond that they even inspired an opera.
Yet there is also this beautiful sense of, almost Talmudic, dialectic in the way the two engaged in pilpul (back and forth) to help sharpen one another’s legal arguments. They scarcely agreed, and yet they had a healthy, mutual respect for one another’s intellect. When Ginsburg was voted one of TIME’s 100 most influential people this past year, it was Scalia who wrote that he could “attest that her opinions are always thoroughly considered, always carefully crafted and almost always correct (which is to say we sometimes disagree).” Over the years, Bader Ginsburg would pay similar compliments to her judicial foil. As the best of Talmudic hevrutot (Jewish study groups), they used one another to sharpen each other’s arguments and were the better for it. And they did not let their political disagreements affect their personal relationship.
In Jewish tradition we have our own Scalia and Ginsburg, who understood how to have a deep and healthy relationship with an intellectual or political opponent. They were named Hillel and Shammai. Living around the turn of the last century, Hillel and Shammai only disagreed five times, but the two set the precedent for the students from the Houses of Hillel and Shammai to disagree with one another a total of 316 times in rabbinic literature. Shammai’s school was generally viewed as more machmir, more stringent on matters of Jewish law, while Hillel’s was more meykil, lenient. In the end, we are told that in nearly every case, we are to side with the House of Hillel, who were viewed as more lenient. Yet, that is hardly the final word on Hillel and Shammai. For all of their disagreements on matters of Jewish law, the Babylonian Talmud Yebamot 14b teaches that “though those forbade what others permitted, Beit Shammai nevertheless did not refrain from marrying women from the House of Hillel, nor did Beit Hillel refrain from marrying women from the families of Beit Shammai.” Even though the followers of the two factions rarely agreed, they too had a healthy respect for each other. The idea of Jewish peoplehood transcended politics.
Watching the American political debates on television, I can only pray that someday the idea of American peoplehood will transcend politics. Rather than political, the differences currently feel like they are deeply personal: instead of saying he disagrees with her positions, Republican candidate Donald Trump called the Democratic Hillary Clinton, “in a certain way, evil”; and rather than sharpening one another in matters of policy, Trump and his rival for the GOP leadership Jeb Bush have gone back and forth calling one another “loser” and “jerk.” The relationship between Scalia and Ginsburg shows us a vision for a different direction that, instead of dividing the country, can bring us closer together. It is one where our sons and daughters would still marry, whether or not we disagree.
source: Haaretz, A Lesson in Scalia-Ginsburg’s Bond for U.S. Presidential Candidates by Rabbi Dan Dorsch
[CMJ's comment: Between Scalia & Gimsburg, who is Hillel and who is Shammai?]
Supreme Court Justice Ruth Bader Ginsburg (pictured with white fan) and Scalia (center) pose with members of the cast of "Ariadne auf Naxos" following a performance at the Washington Opera on Jan. 8, 1994. The justices, both opera lovers, appeared as extras during the performance.
Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: "We are different, we are one," different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve.
[CMJ's comment: What common institution were Scalia and Ginsburg serving?]
Scalia with his Talmud teacher, Adin Steinsaltz
[CMJ's note: In the following article the word yiddishkeit is used several times. *Yiddishkeit = Jewishness or Jewish essence especially in reference to (Talmudic) Orthodox Judaism, of or relating to Talmudical studies]
Though dubbed 'bad for the Jews' for his stance on religion and state, the fiery Italian Catholic judge was a friend of the former Israeli Chief Justice, and brought 'chutzpah' into the Supreme Court.
The late Justice Antonin Scalia, weighing 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, JJ 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.”
Thanks to Scalia, Chabad puts their menorahs up on government property. Here one of their menorahs is shown on the lawn of the White House. There is separation of Church & State in the United States but not of Synagogue & State which are joined at the hip.
Enthusiastic participant in symposia on Jewish and U.S. jurisprudence
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 attorneyNathan 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.”
“I recall a 2009 decision (Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 901),” continued Lewin, noting that Scalia occasionally cited the Talmud in his opinions, “where Justice Scalia concluded a dissent by quoting the English translation of ‘hafoch ba ve-hafoch ba, ki kulo ba’–‘Turn it over, and turn it over, for everything is in it,’(Avot 5:24).”
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 ChabadCenter 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, RabbiShlomo 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.”
Chabad loved Scalia and Scalia loved Chabad!