Scalia And Lewin: From Harvard To High Court

They were on either side of the legal divide — the feisty attorney pressing his case during oral arguments before the Supreme Court, and the sharp-witted justice, in his black robes, sitting in judgment.

But when the high court’s term ended, Nathan Lewin and Antonin Scalia, both Harvard Law School guys, Class of 1960, would meet for lunch at a kosher restaurant in the nation’s capital.

“I did not want to do it while I had cases pending before him,” Lewin told The Jewish Week as he remembered his longtime friend who died suddenly last Saturday at age 79. And more times than not, Lewin found a sympathetic ear in Scalia as he often argued cases defending the role of religion in the public square, a position strongly advocated by the justice.

“At the lunches,” which until last year always took place at Eli’s on N Street, “I would usually bring him a Jewish item, and on one occasion I had a baseball cap from Harvard Hillel that had the word Harvard in Hebrew,” Lewin said. “I said, ‘Nino, I bet you can’t read it. It says Harvard in Hebrew.’ He took the cap and within an hour my secretary said Justice Scalia is calling. I pick up the phone and he says, ‘That cap you gave me — I went down the hall to Elena [Kagan] and I said, if you can read it, it’s yours.’

“I said, ‘You gave it away — she had a bat mitzvah.’ He said she struggled with it and then said, ‘Harvard.’ I said, ‘I will give you another one.’ A couple of days later I got a nice letter from Elena. I wrote back and told her she had won it fair and square.”

Scalia, Lewin recalled, “had a great sense of humor.”

“I would take my Columbia Law School students to hear Supreme Court arguments and afterwards they would meet with him,” he said. “At the beginning of the class, students would recoil, believing he was a terrible guy. But after they met him, they loved him. He was a fantastic, open, modest and funny human being.”

Lewin and Scalia lost touch after Harvard, but renewed their friendship after Scalia became a judge on the U.S. Court of Appeals for the District of Columbia Circuit and Lewin began arguing cases in front of him.

Over the years, Lewin recalled, he and Scalia agreed on all church-state issues except one. The “one blemish,” he said, was when Scalia wrote for the majority in the peyote case that an individual’s religious affiliation did not exclude him or her from complying with valid laws. Scalia argued that to permit exceptions to state laws for religious purposes would potentially allow people to sidestep taxes or mandatory vaccinations.

“It cut the heart out of the First Amendment,” Lewin said.

He noted that the decision caught him by surprise given Scalia’s earlier decision to allow the entire Court of Appeals to re-hear the case concerning the right of an Orthodox Jewish Air Force psychologist to wear a yarmulke while on duty.

“I was shocked that he, a very religious Roman Catholic, would write an opinion like that,” Lewin said of the peyote decision. “We had many debates about it in private and public. I asked Scalia how he could vote in favor of the yarmulke and still write an opinion that denied constitutional rights to other observers. He answered honestly that when the yarmulke case came up, he was on the Court of Appeals and had to follow Supreme Court precedent. When he had to decide the peyote case, he was on the U.S. Supreme Court and he was writing opinions that set the precedent.”

In an op-ed he wrote for JTA, Lewin recalled Scalia saying that during the seven years he was on the bench, when there were no Jewish justices on the Supreme Court, he considered himself the “guardian of Jewish heritage.”

Thus, Lewin said, Scalia told his colleagues how to pronounce “yeshiva” and “even told them what a yeshiva is.”

“Scalia’s admiration for Jews and Jewish learning,” he wrote, “explains the frequent references in his opinions to the Talmud and other Jewish sources, and the significant number of Orthodox Jewish law clerks he hired.

stewart@jewishweek.org