O.U. on Souter: Sometimes kosher, sometimes not
The Orthodox Union's D.C. office has a rapid response reaction to reports that Justice Souter plans to step down. Here's an excerpt:
In brief, the Orthodox community's unique interests are most directly affected by the Supreme Court by its rulings in cases falling under the First Amendment's religion clauses (guaranteeing the "free exercise" of religion and barring the "establishment" of religion). In these, Justice Souter's record is mixed from our point of view - with him typically voting for the strictest separation of church and state - in manner which, in our view, often meant state hostility (as opposed to neutrality) toward religious institutions, but with strong support for individual religious liberty.
Perhaps most prominently, Justice Souter authored the high court's opinion in Board of Education of Kiryas Joel v. Grumet, invalidating a school district designed to serve the needs of learning-disabled hasidic children; he dissented from the court's ruling in Mitchell v. Helms upholding the right of nonpublic schools to receive federally funded instructional materials as he did in other aid to all schools cases; he dissented from the court's ruling finding school vouchers constitutional in Zelman v. Harris.
On the Free Exercise front, in the case of Church of Lukumi, we did appreciate Justice Souter's questioning the validity of the court's earlier decision in Emp. Div. v. Smith gutting the Free Exercise clause; his dissent in Boerne v. Flores which struck down the Religious Freedom Restoration Act; and his joining in other key Free Exercise case majorities.
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Alan Jay Weisbard
05/01/09 08:10 PM
David Souter has brought enormous integrity, intellect, and wisdom to his performance on the Court. While sometimes categorized as a “liberal” on a very conservative Court, he has demonstrated prudence and moderation in his jurisprudence, reminiscent of some of the best qualities of John Marshall Harlan--like Souter, a Republican appointee.
American Jews have been uniform in their strong support of the religious “free exercise” clause, of which Justice Souter has been a champion. Jews are far more divided in their approach to the (non-) establishment cause, with many favoring a strong separation of Church and State. Indeed, the American Jewish Congress supported much of the most significant establishment clause jurisprudence over the past half century. While segments of the Orthodox community have pursued a different stance in recent years--and there is room for reasonable discussion on the issue--Souter’s performance on these cases has won approbation from much of the Jewish community here as well.
Given Republican nominations to the bench in the years since Eisenhauer’s presidency, Justice Souter’s service on the Court has been an unanticipated blessing for the Jewish community and for all Americans who believe in the promise of our country. May he enjoy a vigorous and satisfying retirement.
--The Wise Bard