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Joint Tikvah/Senior Emile Noël Fellow
Academic Year 2011-2012
Pierre Birnbaum is an emeritus professor from University of Paris I where he taught political sociology. He begun his research by working in this field and has been publishing several books on Tocqueville, democracy, political elites and above all, a comparative approach of the State. He then moves toward a comparative approach of contemporary jewish history by using the state as an independent variable explaining different paths of emancipation but also the birth of political antisemitism as a reaction of the presence of Jews within the strong state institutions.
Jewish Supreme Court Judges and the "Wall of Separation"
We propose an analysis of the careers of Louis Brandeis, Benjamin Nathan Cardozo, Felix Frankfurter but also of other Jewish "Scorpions" including Arthur Goldberg, Abe Fortas, Ruth Ginsburg, Stephen Breyer and Elena Kagan, focusing on the positions they took as members of the Supreme Court during the New Deal and latter on, in the sixteeth and the more contemporary period. We would like to look at the meaning of a "Jewish judge" in the US . Whereas previously, some of the Jewish Supreme Court applied the principles of common law, once on the Supreme Court they turned their attention to public law, and the role of the State became fundamental in their decisions during this crucial New Deal period but also later on. We would like to emphasis their decisions dealing mainly with the public space, the State, the State/ Church relations and the question of secularization but also their conflictual relations with some orthodoxes rabbis like Menahem Schneershon, their vision of what it means to be a good American (and Jewish) citizen), their vision of patriotism, for instance, in the famous Gobitis case.
A crucial dimension of this research will be to outline the way those "Scorpions" played a quite unknown but crucial role in the "dechristianisation" of the "Christian nation" dear to Judge Brewer. For instance, from Everson to McCollum, McGowan, Torcaso and even Engel, Frankfurter was able to raised an "absolutist" interpretation of the "wall of separation," helped from outside by some Jewish lawyers like Leo Pfeffer and many Jewish organization like the American Jewish Congress, the American Jewish Commettee but also the ADL and other important organizations in which Jews are quite active in accordance with other non-‐Jewish groups. One main point of this research would be to show that, like in France, a quite different country with a strong state in which many Jews were able to act through the state and its public law, in the US, it is thanks to the Supreme Court, hence in a more recent time, that they have greatly influenced the process of secularization of the "christian nation" which could result in a kind of "naked public space." Frankfurter, the Jewish immigrant, for instance, is the leading actor in the quarrel against the released time, an important one in process leading to the end of the prayer and the Bible reading in the public school. Quite similar in his behavior and values to the french "State Jews," like them he favors a kind of "laïcité" in another time period when, as during the New Deal, we saw an "activist state building."