the supreme court under a blue sky, flag waving
The U.S. Supreme Court building. (Photo/JTA-Eric Thayer-Getty Images)

For Jewish liberals, high (court) anxiety

Roberta Kaplan is best known for winning a landmark case before the Supreme Court that granted same-sex married couples federal recognition for the first time and a host of benefits previously denied them — a 2013 ruling hailed by many as a victory for the country. It also led to the more expansive ruling two years later holding that same-sex couples had a constitutional right to marry anywhere in the country.

But those days couldn’t feel further away for Kaplan, a New York attorney and an adjunct law professor at Columbia University, who describes herself as having been in a state of panic the past few weeks and feeling even more fearful now.

The spate of recent Supreme Court decisions, topped by Justice Anthony Kennedy’s retirement, “have made things much, much worse,” said Kaplan in a recent phone interview.

“Now more than ever,” she said, “our nation faces imminent threats to our democratic system and the potential reversal of long-established fundamental rights for women, minorities, immigrants and LGBTQ Americans.”

As President Donald Trump is set to name his choice for a new Supreme Court Justice, Kaplan’s alarm is shared by much of the Jewish community, including legacy organizations like the Anti-Defamation League, the American Jewish Committee, the National Council of Jewish Women and the Jewish Council for Public Affairs, all of which issued statements concerning recent court rulings.

The rulings have included Trump v. Hawaii, in which the court upheld the travel ban barring immigrants and visitors from five majority-Muslim countries from entering the country; Janus v. AFSCME, which sided against public labor unions over their power to collect fees from non-union workers; and Masterpiece Cakeshop v. Colorado Civil Rights Commission, which ruled in favor of a baker who refused on religious grounds to make a wedding cake for a same-sex couple. Late last month the Supreme Court also ruled that religiously oriented “crisis pregnancy centers” — referred to as “fake” by reproductive-rights advocates — can’t be compelled to give patients information about state services regarding abortion.

All are cases that have been followed closely by large segments of American Jewry, most of which is on the other side of the fence. But others have counseled against seeing recent developments as a cataclysm, pointing to other periods of time in which the country faced similar challenges and bounced back.

Kaplan is among those fearing the worst, including a Supreme Court intent on overturning Roe v. Wade, the 1973 decision ruling that the 14th Amendment gives women a constitutional right to have an abortion, and rolling back rights for immigrants and minorities.

“If you can have a Muslim ban on travel to this country,” she said, “you can also have a Jewish ban on travel to this country — and there was one.”

Kaplan pointed to her involvement in a lawsuit against white supremacists over the violence a year ago in Charlottesville, Virginia. What she’s discovered as the case proceeds is that organizers of the demonstration “hate Jews” more than they hate any other group. “It’s too easy for Jews to forget” that not too long ago “the same kinds of laws, statutes and rules that hurt other minority groups today were also used against Jews in the past. I remember my grandmother telling me about trying to check into a hotel in the South on her honeymoon and being told that no Jews were allowed.”

Recent developments are also personal for Kenneth Wald, a political science professor at the University of Florida, whose upcoming book is titled, “The Foundations of American Jewish Liberalism.”

Wald believes that the Jewish community has had two different sets of priorities, both of which overlap but are not exactly the same. One is a broad-based commitment to social and economic equality, including civil rights, public education and access to health care. But the other priority, he said, is the overarching one: a devotion to “keeping the United States a secular state that doesn’t make distinctions based on religion.”

The country’s secular nature “is what’s made it possible for Jews, as a small group, to achieve what they have in the United States,” Wald said, asserting that that’s now “at risk based on the [court] appointments President Trump has made.” He added that those who have been alarmed in the Jewish community include not only liberals, but also conservatives, including William Kristol, David Brooks, Bret Stephens, Jennifer Rubin and the late Charles Krauthammer.

While disappointed by many of the same developments, Gil Troy, a history professor at McGill University, said he tends to be an optimist, rather than a “doom-and-gloomer.”

A self-described centrist who specializes in the American presidency, Troy nevertheless said that political tensions in the United States “have reached a peak,” with partisanship and ugly rhetoric growing more intense than they have been in a long time. He added that his focus right now is on which way this year’s midterm elections “will go and who will be the heroes and the big winners.”

A more conservative point of view came from Thane Rosenbaum, a law professor at New York University.

Rosenbaum believes this “is a confusing time for the children of Jewish socialists, red-diaper babies and Upper West Side liberals” who have been “party-line Democrats and faithful supporters of any progressive agenda.” Trump, he said, “has taken something many Jews took for granted” — the belief that being Jewish meant being left of center or that “repairing the world” should come before “taking care of ourselves” — and has turned it around.

“There’s a kind of reflex you’re seeing in this administration — a style of behavior — that’s obliterating every sacred cow.”

Meanwhile, mainstream Jewish organizations are struggling with how to respond effectively.

“We’re dealing with many challenges” to the traditional Jewish agenda, said David Bernstein, president and CEO of the Jewish Council for Public Affairs. “One moment you can be addressing a potentially significant cut in the health-care realm, and the next moment you’re hit by an immigration matter that seemingly comes out of nowhere. It feels like you’re playing a game of whack-a-mole.”

Bernstein said he “wouldn’t want to underestimate the level of resiliency of American institutions,” including an independent judiciary and the press, “but I wouldn’t want to underestimate the level of vigilance required to protect them.” First and foremost among the JCPA’s priorities, he added, is “protecting democratic institutions, such as freedom of the press.”

Commenting on how difficult the moment is for many Jewish organizations, Rabbi Jason Kimelman-Block, Washington director of the left-leaning Bend the Arc, said “groups that have operated within a consensus-built political process … have been slow to recognize the hyper-partisanship, scorched-earth policies we’ve seen” from Trump and his allies. “Many have been slow to recognize that our nation has been in a political crisis and a moral crisis.”

A version of this article first appeared in the New York Jewish Week on July 6.

Doug Chandler

Doug Chandler is a freelance writer based in New York.