Today, US Supreme Court Justice Souter let it be known that he intends to leave, what he called “the best job in the worst city” capping off quite a week in political news (Specter’s switch, Obama’s 100th day, and now this).
While the focus and discussion will be upon who President Obama may pick to replace Justice Souter we will take a moment to reflect in a brief, unscholarly way on what Justice Souter’s tenure meant for the Orthodox Jewish community’s interests.
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.
These decisions by Justice Souter are, in the main, consistent with the philosophical and historical approach he took to religion clause questions and laid out in his concurrence in Lee v. Weisman.