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February 18, 2016 5:05 am

Supreme Court’s Antonin Scalia: a Look Back and Forward After His Death

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Justice Antonin Scalia, pictured, died at the age of 79. Photo: Wiki Commons.

Justice Antonin Scalia, pictured, died at the age of 79. Photo: Wiki Commons. – Conservative-leaning US Supreme Court Justice Antonin Scalia died on Saturday at the age of 79. His fellow judges have issued poignant condolence messages for the justice, including the Jewish justices on the panel.

“Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as working colleague and treasured friend,” said Justice Ruth Bader Ginsburg.

“Nino Scalia will go down in history as one of the most transformational Supreme Court Justices of our nation…I admired Nino for his brilliance and erudition, his dedication and energy, and his peerless writing. And I treasured Nino’s friendship,” said Justice Elena Kagan.

“Nino Scalia was a legal titan. He used his great energy, fine mind, and stylistic genius to further the rule of law as he saw it. He was man of integrity and wit. His interests were wide ranging as was his knowledge about law, this Nation and its Constitution…We benefitted greatly. His contribution to the law was a major one,” said Justice Stephen G. Breyer.

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What has been Scalia’s impact in Jewish-related cases, and what does his death mean for future cases?


According to, the Roman Catholic Scalia was particularly notable in past rulings on several Jewish-focused cases.

1. Scalia was the first one to use the Yiddish term “chutzpah” when writing the decision of the court regarding the 1998 case National Endowment for the Arts v. Finley. The respondent, Finley, was denied a federal grant to fund her performance art by the petitioner, the National Endowment for the Arts, on the grounds that the fund could offend a decency law. The case asked whether the decency law violated free speech, but court ruled the law was constitutional.

2. In June of 2015 the court struck down a law that enabled Americans born in Jerusalem—which the U.S. government does not recognize as a part of any country — to list “born in Israel” on their passports on the grounds that Congress overstepped the president’s authority on foreign affairs. Scalia was one of three judges who dissented from the majority decision in 2015’s Zivotofsky v. Kerry, arguing that the passport birthplace requirement “does not require the Secretary to make a formal declaration about Israel’s sovereignty over Jerusalem.”

3. Scalia was part of a majority of justices who ruled in 1989’s County of Allegheny v. ACLUthat menorahs could be displayed on public property, paving the way for the Hanukkah symbol to be displayed frequently in public places, often near Christmas trees, during the holiday season.


Now that Scalia has died, his absence could affect a number of pending cases. Among them, as relating to the Jewish community according to the Forward, are:

1. Zubik v. Burwell has to do with the Affordable Care Act’s “contraception mandate” requiring covered employers to provide employees with health insurance that includes contraception coverage. Many employees have argued that this would violate their religious liberty. The court ruled in 2014’sBurwell v. Hobby Lobby on the same issue with a five-Justice majority (including Scalia) that enforcing the mandate violates the Religious Freedom Restoration Act (RFRA). This decision led to an exemption from the mandate for many religious employers. The new case now challenges this exception itself on the grounds that it violates the RFRA. Which way this case is headed in the court after Scalia’s death is now a mystery.

2. Trinity Lutheran Church v. Pauley is a case questioning whether the state of Missouri’s decision to deny Trinity Lutheran Church’s grant application for funds intended to purchase recycled tires to improve the safety of its school playground was constitutional. The denial was based on a law prohibiting taking money from the public treasury in aid of “any church, section or denomination of religion.”

Similar laws known as Blaine Amendments exist in multiple states and their existence could be challenged on the grounds that the bans are beyond what is stipulated in the First Amendment. In a 2004 case involving a similar issue, Scalia dissented, arguing that the government should restrict funding “solely on the basis of religion,” which in his view constituted religious discrimination. With Scalia’s death a decision upholding Trinity Lutheran Church’s right for state funding – and by default the right of other religious institutions, including Jewish institutions, for such funding – is now less likely.

For more on Scalia’s relationship with the US Jewish community read “American Orthodox Jews Will Miss Scalia, Their Great Defender” in Haaretz.

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