July 5, 2007

Following a string of conservative rulings in the closing weeks of this year’s Supreme Court session, some Jewish officials are suggesting that they may be forced to abandon their decades-long strategy of relying on the courts to protect liberal gains on a host of issues.

For decades, many Jewish groups counted on the top court to correct what they saw as the excesses of legislatures and chief executives across the country. But with the close of the court’s first full term with two recent conservative arrivals, Chief Justice John Roberts and Justice Samuel Alito, Jewish groups say the situation has reversed itself.

Not only has the Supreme Court thoroughly abandoned a decades-old tradition of upholding the liberal gains of the 1950s and 1960s, it has become the premier bulwark of conservatism now that Democrats have retaken Congress and the White House is weakened to the point of impotency.

“To put it in historical perspective, we were quite sanguine when cases would come up, with the sense we would get a decision in our favor,” said Jeff Sinensky, legal counsel to the American Jewish Committee. “Looking forward, it’s likely that the majority, now headed by Justice John Roberts and with Justice Samuel Alito coming on the court, have a fundamentally different perspective than the Jewish community.”

Sinensky and others cite four decisions that have especially roiled the community over the last year since Alito replaced Sandra Day O’Connor, who carefully hewed to the center, as the court’s swing vote on several hot-button issues:

• The court ruled in April that a ban on late-term abortions did not violate a woman’s right to privacy, rolling back in part the gains of the 1973 Roe v. Wade decision.
• In May, the court imposed a tough 180-day limitation on an employee’s right to claim pay discrimination.
• Last month, a 5-4 majority of the justices ordered school districts in Seattle and Louisville, Ky. to end voluntary busing programs that sought to integrate schools that had become segregated through demographic trends.
• Also last month, the court ruled that taxpayers have no standing to stop the executive branch from spending federal funds on faith-based programs, a decision that would hamper efforts by Jewish groups to wage legal challenges on such matters.

Not every Jewish group was unhappy with those decisions. Two Orthodox groups, the Orthodox Union and Agudath Israel of America, praised the ruling on faith-based programs. In fact, Agudath argued that it didn’t go far enough, saying it should have eliminated challenges to congressionally mandated religious spending as well.

“There’s not a whole lot of logic for the distinction between executive branch decisions and congressional decisions,” said David Zweibel, Agudath’s general counsel.

Agudath also praised the abortion decision, but Zweibel stressed that the Orthodox community was not necessarily embracing a more conservative court. He noted that Orthodox lawyers in the past had been on the “liberal” side of arguments, for instance in expanding laws combating discrimination.

“To say we’re conservative or liberal is wrong,” Zweibel said.

For most of the Jewish communal stalwarts on jurisprudence, “disappointment” was the term that kept cropping up to describe the recently completed Supreme Court term.

“We were 0-for-3 this term,” said Michael Lieberman, the Washington counsel for the Anti-Defamation League (ADL), referring to the ADL’s three friend-of-the-court briefs: the abortion case, the taxpayer case and the desegregation case.

According to Lieberman, the significance of the cases ran deeper than the losses. In each of the three cases he cited, the Supreme Court had gone out of its way to reverse lower court rulings.

“It’s really going to be important going forward to pick our forums,” Lieberman said. “The court system may not be the best way to vindicate rights going forward.”

That prospect, of an activist conservative court seeking to correct what it perceives to be a liberal taint on jurisprudence, led other Jewish groups to the same conclusion.

“There’s a concern about finding the right cases to bring to the court,” said Mark Pelavin, the associate director of the Reform movement’s Religious Action Center. He cited the faith-based funding case, Hein v. Freedom From Religion Foundation.

“The Hein case is a great example of how a case is not necessarily one that the litigators would have chosen as the first case on the president’s faith-based initiative,” Pelavin said.

Jewish groups signed on as friends of the court in the case because of the potential that the justices would overturn precedent, Lieberman said, but generally believed the case was not worth the risk — a sense vindicated by the court’s finding. As a result of the decision, Lieberman said, only those people directly affected by funding for faith groups could challenge the law.

“What you’re asking for is someone who is among the least, the lost, someone with an alcohol addiction, a drug addition, someone who has no job, to come forward,” he said. “It’s so unlikely that someone falling through the safety net is going to say, ‘I need that methadone treatment program, but I resent saying a prayer for it.'”

Another strategy is to advocate for legislation on the local, state and federal levels tailored to circumvent the court’s reasoning. “It may be that a local ordinance is the next way to protect the workplace,” Lieberman said. “It may be state law, it may be Congress or the executive branch.”

Rep. Jerrold Nadler (D-N.Y.), a Jewish liberal who represents parts of Manhattan and Brooklyn, said he expects to take a legislative-based approach to dealing with the court’s ruling that employees seeking to file lawsuits charging discrimination in pay, must do so with the 180-day period.

“Congress must make its intent clear: Anti-discrimination laws must be strengthened — not weakened,” said Nadler, the chairman of the civil liberties subcommittee in the U.S. House of Representatives, in introducing legislation last week that would expand the 180-day limit.

Sammie Moshenberg, who directs the Washington office of the National Council of Jewish Women, said her organization’s strategy of directly opposing some judicial candidates has been vindicated.

Despite their concerns about the direction of the court, some other Jewish groups opted not to oppose President Bush’s judicial nominees, arguing that a president deserves leeway in placing his or her preferences on the court.

In 2001, according to Moshenberg, when NCJW first started opposing judicial nominees, “We said these people serve for a lifetime [and] make incredibly important decisions that affect us for the rest of our lives.'”

The federal bench and the Supreme Court, Moshenberg said, “have really been the backstop for our constitutional rights throughout history.”