Fundamentally Freund: On the US (Supreme) Court jesters and Jerusalem

America’s ham-handed approach to its closest ally in the Middle East was on full display earlier this week.

By MICHAEL FREUND
US passport [Illustrative] (photo credit: INGIMAGE)
US passport [Illustrative]
(photo credit: INGIMAGE)
America’s ham-handed approach to its closest ally in the Middle East was on full display earlier this week when the US Supreme Court sided with the Obama administration and struck down a Congressional law permitting Americans born in Jerusalem to record Israel as their country of birth.
As a result, the Jewish state remains the only country on the planet whose capital city is snubbed and affronted in such a manner. This diplomatic absurdity is not only offensive, it is discriminatory, and it is a slap in the face to the entire Jewish people.
Various commentators have already pored over the court’s decision to assess its constitutional probity and political implications, but few seem inclined to touch upon a particularly sensitive aspect of it, one that speaks volumes about the state of American Jewry today.
Consider the following: of the three Jewish justices on the US Supreme Court – Stephen Breyer, Elana Kagan and Ruth Bader Ginsburg – not a single one voted in favor of Jerusalem. Not one! Without exception, they all toed their private liberal political line, giving the decision a 6-3 majority.
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Had just two of them voted differently, the Congressional law would have been upheld, as would Jerusalem’s dignity.
Sure, the Supreme Court is intended to deal with constitutional intricacies rather than Jewish loyalties, and no one expects its deliberations to resemble those of the Sanhedrin. But how is it possible that not even one of the justices was moved to stand with Jerusalem? Don’t believe all that balderdash about how judges rule solely based on their dry reasoning and the letter of the law. Judges are human beings, not robots, and like anyone else they are subject to any number of subjective motivations, interests and other factors.
Thurgood Marshall, the civil rights activist, was chosen to serve as the first black Supreme Court judge in October 1967. His grandfather and great-grandfather had been slaves, a sad fact that helped to shape who he was and how he viewed issues of injustice and basic human freedoms. Would anyone expect otherwise? Or take Justice Antonin Scalia, who has been on the court since September 1986. Scalia, whose parents were immigrants from Sicily, raised him in a devout Catholic environment which included attendance at a Jesuit-run high-school. His strong conservative bent is clearly rooted in the religious and cultural values that he imbibed while young. No one would argue that he should shunt these aside in his decision-making process.
So why should it be any different when it comes to the Jewish justices? Don’t we have a right to expect that at least one of them would look in the mirror and remember that in addition to his oath to the US Constitution, he also has an oath to uphold as a member of the Jewish people? The fact that all three Jewish judges failed in this regard is a stinging reminder of just how far American Jewish liberalism has essentially morphed into something that is far more liberal than it is Jewish.
In many cases, it seems that US Jewish liberals are more concerned with the separation of powers than they are with separating themselves from the Jewish people and its collective hopes, dreams and destiny.
Had they wanted to, the Jewish judges could surely have found a way to uphold the Congressional law.
After all, whenever the court has wanted to see a particular policy prescription followed, it has often gone to great lengths, including inventing theories or explanations, to justify its stance.
This includes the 1973 Roe v Wade decision, which ruled that the right to privacy under the due process clause of the 14th amendment to the Constitution included a women’s right to have an abortion. Or the 2012 Obamacare ruling which upheld the program’s requirement that individuals pay a financial penalty for not obtaining health insurance. The court, by a 5-4 majority, characterized such a penalty as a tax, believe it or not.
But the bottom line is that none of the three Jewish judges apparently cares enough about Jerusalem or its centrality to our people to have worked up a constitutional sweat in an effort to espouse her dignity. And what shame that is.
For I suspect that for most of the past 1,900 years, the ancestors of justices Breyer, Kagan and Ginsburg all turned to face Jerusalem when they prayed. How sad that instead of continuing this tradition, the Supreme Court’s Jewish judges, like many liberal American Jews, have chosen instead to turn their backs on what our forefathers held dear.