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At some early point during his Supreme Court service, Nino suggested that we have lunch. He invited me to join him at his favorite restaurant – an out-of-the-way dingy Italian joint called A.V. Ristorante Italiano. I accepted the invitation. While he had his favorite pizza, I could find only some raw celery and tomatoes to order from the menu. Noticing my discomfort (and recalling the days at Harvard when my diet for Law Review events was severely curtailed), he asked whether I’d prefer to meet for lunch elsewhere. And so began our custom of an annual end-of-the-Supreme-Court-Term lunch at a Washington kosher eatery.
There were occasional moments of personal disclosure during these meetings. The last was in mid-June 2015, soon after the Supreme Court rejected the argument presented by my daughter and law partner in Zivotofsky v. Kerry, the case in which we maintained that Congress could constitutionally direct that U.S. passports for American citizens born in Jerusalem say that they were born in “Israel.”
Scalia had written a compelling dissent in that case, as had Chief Justice Roberts and Justice Samuel Alito. At our lunch in Char-Bar, the kosher downtown restaurant, he autographed copies of his dissent and expressed great personal unhappiness over the Court’s decision. In typical Scalia-style rhetoric, he had described the majority’s reasoning as “a leap worthy of the Mad Hatter” and as “a rule that is blatantly gerrymandered to the facts of this case.”
Obviously despondent over the direction a majority of the Court was generally taking, Scalia asked us to guess which of the Supreme Court justices had not yet been in the minority that Term in any Supreme Court decision. It was a surprising question, and we didn’t know the answer. He reported, with a shake of his head, that it was Justice Stephen Breyer. “That tells you,” he added, “where the court is headed.”
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One of Scalia’s most brilliant and memorable dissents was in the case I argued on behalf of the school for handicapped children in Kiryas Joel – the Satmar community’s village – that was financed by New York State. Scalia’s opening sentences – dripping with the biting sarcasm and compelling reasoning that bore the Scalia trademark – deserve full quotation:
The Court today finds that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim. I do not know who would be more surprised at this discovery: the Founders of our Nation or Grand Rebbe Joel Teitelbaum, founder of the Satmar.
The Grand Rebbe would be astounded to learn that after escaping brutal persecution and coming to America with the modest hope of religious toleration for their ascetic form of Judaism, the Satmar had become so powerful, so closely allied with Mammon, as to have become an “establishment’” of the Empire State. And the Founding Fathers would be astonished to find that the Establishment Clause – which they designed “to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters” [citing Zorach v. Clauson] – has been employed to prohibit characteristically and admirably American accommodation of the religious practices (or more precisely, cultural peculiarities) of a tiny minority sect. I, however, am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion.
His one major misstep was a landmark decision in a case involving Native Americans’ ingestion of peyote during a religious ceremony. Scalia persuaded a majority of the court to join an opinion that eradicated the special protection that earlier decisions had given to religious observance. I heckled him at public sessions and in private meetings over that opinion. After one heated public exchange he said to me, “You’re the first person to have drawn blood on me in connection with that case.”
