Samuel Alito, the Supreme Court and Shabbat

Nathan Lewin, who teaches Supreme Court litigation at Columbia Law School,
writes in The Jewish Press on “The Supreme
Court Nominee and the Shomeret Shabbat.”

Lewin tells “the tale of a concurring opinion by Judge
Alito that provides an insight into the kind of Supreme Court Justice
he will be.”

The story concerns Trudy Abramson, an Orthodox Jew
teaching at William Paterson College in New Jersey, who brought a civil-rights
lawsuit against the College, accusing it of religious discrimination and retaliation
for her unavailability on Friday nights and Saturdays, when meetings and
conferences were scheduled by her department knowing she could not attend.

The federal district court dismissed her complaint, on grounds
the College provided nondiscriminatory explanations for scheduling meetings and
conferences at those times.

In 2001, the case came before a three-judge panel of the Third
Circuit Court of Appeals, including Judge Alito.  Lewin filed an amicus brief on
behalf of the National Jewish Commission on Law
and Public Affairs (COLPA), supporting Dr. Abramson, and the court ruled
unanimously in her favor:

Judge Alito saw fit to
issue a short concurring opinion that . . . quoted the following paragraph from
the COLPA brief that I had written:

When an employer deliberately reschedules important meetings for Friday
afternoons, the message to an Orthodox Jewish employee is clear as a bell.  Such rescheduling tells the employee that
continued observance of his or her faith will be viewed as incompatible with
adequate job performance.  Repeated
requests that work be done on Saturdays or Jewish holidays — or telephone
messages left on a Jewish religious holiday demanding an “immediate” response —
are aimed directly at an employee’s religious observance.  Criticism of an employee’s effort to
reconcile his or her schedule with the observance of Jewish holidays delivers
the message that the religious observer is not welcome at the place of
employment.

 . . . On the day after
Judge Alito’s nomination was
announced, I received a call from the Justice Department seeking further
details on the Abramson case and
asking how Dr. Abramson might be
contacted.

Judge Alito’s succinct
separate recognition of the right of an Orthodox Jew to practice her religion
free of “cruel choices” [between livelihood and religion] may turn out to be an
important indicator, in the public examination of his record, of his
sensitivity to individual rights.

 Indeed (as another law professor once said).