Blackmun’s Retirement from Court Means Loss of Staunch Friend of Jewish Causes

Justice Harry Blackmun’s retirement later this year from the Supreme Court means that the Jewish community will lose a strong supporter of abortion rights, religious liberties and church-state separation.

Blackmun, who announced Wednesday that he would retire at the end of this year’s court term, is best known for authoring the landmark 1973 Roe vs. Wade decision legalizing abortion. Most Jewish groups support a woman’s right to choose abortion to terminate a pregnancy.

But the liberal Blackmun, 85, was also a strong backer of church-state separation and religious liberty issues, causes high on the priority list of most Jewish groups.

Legal experts at Jewish organizations praised Blackmun upon hearing of his imminent retirement.

Overall, “he was very much a friend on the court on church-state issues,” particularly in the area of free exercise of religion, said Steven Freeman of the Anti-Defamation League. “We’ll miss him.”

Among the cases in which Blackmun took a position in line with that of the Jewish community was in the 1990 case Employment Division vs. Smith, known as the “peyote” decision.

Blackmun dissented from the majority opinion which upheld a law barring Native Americans from using the hallucinogen peyote in religious rituals. Jewish groups had opposed the law, out of concern for the possible banning of other religious practices.

It was the Smith decision that brought a broad coalition of Jewish and other religious groups together to lobby successfully for the Religious Freedom Restoration Art, signed by President Clinton earlier this year. The act was designed to overturn the effects of the Smith decision.

“He shared and took very much to heart the concern over free exercise of religion” that unifies the Jewish community, said Richard Foltin of the American Jewish Committee. “Justice Blackmun has been our friend on these issues.”

Foltin said that AJCommittee had presented Blackmun with its most prestigious award, the American Liberties Medallion, at the group’s annual meeting in 1992. The award is presented to someone who makes a significant contribution to human rights, Foltin said.

On the “establishment clause” issues dealing with separation of church and state, Blackmun provided a solid vote for strict separation, experts said.

Blackmun wrote a dissenting opinion to last year’s 5-4 court decision allowing a deaf student enrolled in a parochial school to have access to a sign language interpreter paid for with public funding.

The justice argued that “until now, the court never has authorized a public employee to participate directly in religious indoctrination. Yet that is the consequence of today’s decision.”

That case, Zobrest vs. Catalina Foothills School District, sharply split the Jewish community.

Blackmun stood with the bulk of the Jewish community on other issues. “He reflected the consensus position of the Jewish community” on issues including abortion rights, women’s rights, civil rights, the free exercise of religion and church-state separation, said Rabbi Saperstein of the Religious Action Center of Reform Judaism.

David Zwiebel, general counsel for Agudath Israel of America, a group representing the positions of fervently Orthodox Jews, said that for his group, Blackmun was “a friend on some issues, and a reliable opponent on others.”

Many Orthodox Jews oppose abortion, and take a different, less strict position from the rest of the Jewish community on separation of church and state.

Zwiebel said that he expected Blackmun to take a position in the controversial Kiryas Joel school case, now before the court, opposite to that of Agudath Israel. “He is not likely to support the establishment of the school district,” Zwiebel said.

Kiryas Joel vs. Grumet, argued last month before the Supreme Court, questions the constitutionality of a special New York public school district set up to serve handicapped Chasidic children.

Last June, Blackmun was the lone dissenter in a court decision upholding the U.S. policy of intercepting Haitian refugees at sea and returning then to Haiti without holding asylum hearings. A number of Jewish groups disagreed with the majority ruling in that case.

Appointed to the court in 1970 by President Richard Nixon, Blackmun was expected to provide a reliable conservative vote. But over the years, he became more liberal and the court more conservative. At this point, Blackmun is viewed as one of the staunch liberals on a somewhat conservative court.

Clinton, who spoke warmly of Blackmun on Wednesday at a joint appearance with the retiring justice, is expected to pick a replacement soon.

Most legal experts at Jewish groups said they expected Clinton to select a nominee whose views are similar to those of Blackmun. Thus, the experts do not expect Blackmun’s departure to affect greatly the composition of the court. Some wondered, however, whether the new nominee would be a successful consensus-builder who could offset the conservatives on the court. Blackmun was able to build coalitions, Saperstein said.

Marc Stern of the American Jewish Congress said he expected Clinton to focus more on reproductive rights than on church-state issues when choosing a new justice. “There’s no (political) mileage” in focusing on church-state issues, Stern said.

Blackmun’s retirement affords Clinton his second Supreme Court selection. Clinton’s first pick, Justice Ruth Bader Ginsburg, who joined the court last year, was praised by Jewish groups. Ginsburg, viewed as a moderate, is the first Jew to sit on the court in 25 years.

Names circulating in Washington for Blackmun’s successor include Senate Majority Leader George Mitchell (D-Maine), who plans to retire from the Senate after this year; Interior Secretary Bruce Babbitt; and U.S. District Judge Jose Cabranes of Connecticut, who would be the first Hispanic appointed to the court.