When it comes to those who have been negatively impacted by Supreme Court rulings of late, the list is long. From women, to communities of color, to the LGBTQ+ community, there is no shortage of those who find themselves threatened by the highest court in the land.
This fact remains true for us here in the Jewish community as well.
This year saw the first full term since the rushed replacement of late liberal Jewish Justice Ruth Bader Ginsburg by Amy Coney Barrett, an adherent of a fundamentalist Catholic sect – which includes in its doctrine the idea of a divinely ordained subservience of women to men. The term’s final weeks saw not only the momentous Dobbs vs. Jackson Women’s Healthcare Organization decision overturn the right to abortion, but it also saw two more key rulings landing blows to the constitutional separation of church and state.
New York Times Supreme Court reporter Linda Greenhouse analyzed the language of the Dobbs opinion and the recent public statements of Justice Samuel Alito – who authored the majority opinion – and concluded, “It was not constitutional analysis but religious doctrine that drove the opposition to Roe.” Greenhouse pointed out that rather than continuing to uphold established principles of individual rights under law in the abortion ruling, the majority chose to frame the matter as a “moral” issue for which these anti-abortion justices –five of whom were raised in the Catholic church – drew on their own biases about what constitutes morality to make their determination.
Alito in particular has been outspoken about the idea that religion as such is somehow under attack. He has argued that religion therefore requires special protection from secular norms that prohibit the establishment of religion by the state.
But Jewish religious law and moral principles not only allow abortion – they command it to save the life of a pregnant woman. Any number of Alito’s other decisions, often at the behest of fundamentalist Christian believers, advanced similar themes. And his ally Justice Clarence Thomas has raised the prospect that the court could well move on to reconsider established legal rights for contraception, same sex relationships, and same-sex marriage, all anathema to the Christian right, but all widely, if not universally, supported by Jewish Americans.
Of course, it’s not accidental that the current court majority has come together to advance such opinions. Populating the Supreme Court with judges sympathetic to a backward-looking social agenda that includes outlawing abortion has been the project of a determined political alliance for at least the 50 years since the Roe decision. The presidency of Donald Trump, who ran on an explicit promise to appoint only anti-abortion minded members to the court, and the connivance of Republican Senate leader Mitch McConnell in gaming the judicial confirmation process to that end, only provided this movement with the opportunity it was waiting for.
It’s not only a reactionary culture war that’s on the court’s agenda, but democracy itself, including the right to vote. The upcoming court calendar includes a case that could allow state legislatures to disregard any checks on them by their own state court systems, a chilling prospect at a time when Trump’s Christian nationalist aligned MAGA movement already has attempted to manipulate swing state legislatures to interfere with the counting of presidential election ballots. Another upcoming case seeks to weaken existing protections for historically discriminated-against minorities under the Voting Rights Act.
Let’s say it bluntly: When in history has the truncating of individual freedom and the loss of democracy ended well for the Jews?
We can’t understand the position we are in with the current court without considering the broader cultural/political ecosystem that has empowered Justice Alito and his cohort, particularly the role of right-wing media like Fox News. In 2004, it was the now-disgraced Fox host Bill O’Reilly who spread the notion of a war on Christmas on the airwaves, reframing innocuous secular or ecumenical cultural practices like wishing a stranger a happy holiday season as some kind of hate crime against Christianity. The impact of such campaigns has reached the point that significantly more self-identified Republicans now tell pollsters they believe that “Christians” face more discrimination than either Black Americans or women. The MAGA movement’s hold over today’s GOP also has meant that the self-professed Christian nationalist Congresswoman Marjorie Taylor Greene, infamous for her conspiracy theory of Jewish space lasers starting forest fires, had her status in the House of Representatives defended by the same party leadership that forced out Liz Cheney.
It’s impossible to get into the minds of Justices Alito, Thomas, or their cohorts to determine if they personally fit the typical definitions of antisemitism – nor is it relevant. However, it’s clear that the direction they have been taking the high court may have the impact of setting back the legal and social standing of Jewish Americans in our own country by many generations if it continues to go unchecked.
This threat can’t be overcome by complacency. Complacency includes the ambivalence some have shown about maintaining the country’s commitment to separation of church and state. Complacency also includes the kind of mixed messaging some establishment leaders have indulged in about antisemitism, which has suggested that pro-Palestinian sentiment on college campuses related to the Middle East should be seen as a threat equal to or greater that of the domestic Christian nationalist movement that has promoted lethal violence and insurrectionism in our own country.
Our community, like so many other segments of U.S. society, is facing grave danger from the entrenched members of the Christian right and their allies on the high court and elsewhere. Yes, they are trying to crush everyone, and not just us. And yes, that certainly includes us.
When it comes to the high court, perhaps antisemitism isn’t the right word. Or is it?
Mark Lurinsky of Montclair is recently retired from a career in public accounting. He is an activist in local politics and a member of the steering committee of J Street’s New Jersey chapter.