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When the Personal Is Judicial: What's So Jewish About Justice Kagan's Opinion in Town of Greece?

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Co-authored with Lila Corwin Berman, Murray Friedman Chair of American Jewish History, Temple University.

Her historical error aside, U.S. Supreme Court Justice Elena Kagan's decision to close her dissenting opinion in the case of Town of Greece v. Galloway with the exchange between the Jewish community of Newport, Rhode Island and George Washington makes good sense.

In her rendering of this oft-repeated tale, Kagan omits reference to what may well be the most important point of her story: Jews' communal and historical experience rested at the heart of their ideals about the civic realm. "Deprived as we have hitherto been of the invaluable rights of citizens," the lay leader in Newport explained, Jews were particularly motivated to define those rights.

In Kagan's a withering dissent, the personal animates her judicial commitment to American pluralism. The majority opinion locates its historical precedent in the 1776-story of American history, explaining that from its very founding, our country gave sanction to specific religious expressions in the civic realm. Kagan selects a different historical pathway, one explicitly rooted in her heritage, toward her decision.

Kagan's dissent allows us to perceive the existence of a distinctively, though not exclusively, American Jewish tradition of political thought that rejects the vision of a mono-cultural universalism in favor of cultural and religious pluralism. It embraces differences in personal identity, and interprets the principle of religious liberty espoused by George Washington not as a requirement that the state be blind to group differences, but rather as a demand that group differences be recognized and protected.

The link between the pluralistic philosophical position and what might be called judicial personalism is clear, though not always direct.

Jewish Justice Felix Fankfurter began his dissent in the landmark first amendment case, West Virginia v. Barnette (1943), with a personal revelation: "One who belongs to one of the most vilified and persecuted minorities in history is not likely to be insensible to the freedoms guaranteed by our Constitution." He then, however, insisted, "[A]s judges we are neither Jew nor Gentile, neither Catholic nor agnostic" and denied the claim of a Jehovah's Witness to be exempt from a requirement to salute the American flag in public school on the grounds that the Constitution made no allowance for special treatment of minority religions.

Indeed, American Jews have stood on both sides of the contest between universalism and pluralism, often grounding both in narratives of Jewish history. In the early part of the twentieth century, renowned Harvard scholar Horace Kallen stood at the forefront of a movement to reject the "melting pot ideal" in favor of cultural pluralism that embraced difference. Though his most famous rendering of this ideal mentioned Jews only in passing, his larger corpus of thought makes clear the connection between his pluralist ideal and his personal, albeit complicated, connection to Jewish history and identity.

For Kagan, too, her ability to render the experience of outsiderhood with deeply personal empathy provides the pathos and the logos of her dissent. In a series of hypotheticals, she explores the psychological pressure of the religious outsider forced to be a party to government-sanctioned Christian prayer: "Perhaps she feels sufficient pressure to go along--to rise, bow her head and join in whatever others are saying.... Or perhaps she is made of stronger mettle, and she opts not to participate in what she does not believe.... She then must make known her dissent from the common religious view, and place herself apart from other citizens...." Through these hypotheticals, Kagan takes the majority to task for its blindness to the experience of religious minorities.

If a Jewish political tradition undergirds a pluralist vision, such a vision is not unique to Jews. U.S. Supreme Court Justice Sonia Sotomayor, whose recent dissenting opinion in Schuette v. Coalition to Defend Affirmative Action relied on her highly personal description of racial discrimination, operates in a similar space of judicial personalism as Kagan. The two dissents share similarities of substance as well as style, not only reflecting a personal perspective born of membership in a minority (for Sotomayor, an "intersectional" identity, both Puerto Rican and Catholic), but drawing on that perspective to make palpable the way that actions taken by members of a majority culture make minorities feel "like I do not belong here" even when they are not intentionally or coercively discriminatory.

Too often, the pluralist interpretation is found in the minority, in the dissenting opinions that make spirited pleas for the diversity and multiculturalism repudiated by the Court's conservative, Catholic, and male majority. Today's Supreme Court is entirely composed of Catholics and Jews, testament to the insiderhood of these once outsider groups. Yet we would be mistaken to ignore the weight of these minority traditions, and the struggles within them, in shaping the opinions rendered from the bench.

Even with this most recent decision, we can be grateful that the fight within each group over how best to interpret its political heritage in a changing world, where race and religion intersect in new ways, where religious diversity within traditions is often as pronounced as religious diversity among traditions, and where history is ripe for reinvention, is not over.