VOL.5 NO. 10 (OCTOBER, 1995) PP. 251-254

TO BUILD A WALL: AMERICAN JEWS AND THE SEPARATION OF CHURCH AND STATE by Gregg Ivers. Charlottesville: University Press of Virginia, 1995, Pp 272. Cloth $37.50.Reviewed by Susette M. Talarico (University of Georgia)

At the beginning of his study of American Jewish interest groups and their efforts to impact establishment clause litigation, Ivers outlines two major objectives. More generally, he seeks to "describe and explain how organized interests view the litigation process" (30). In this regard Ivers is especially interested in examining the internal and external factors that help to shape the policies and strategies of interest groups and, in the process, to learn more about how such groups practice public interest law. In a more specific sense, Ivers also wants to draw attention to what he describes as a "heretofore neglected chapter of the Jewish experience in America" (31). Ivers, then, looks at the experiences of major 20th Century American Jewish organizations and chronicles not only their involvement in public interest law but also their development and organizational cultures.

Since I have limited familiarity with contemporary scholarship on the American Jewish experience, I am not in the best position to consider the degree to which Ivers succeeds with respect to his more specific objective. But as a study of the practice of public interest law, it is clear that Ivers achieves his first and most general objective. To be sure, TO BUILD A WALL does not represent the last word in this line of inquiry. And, as I shall consider later, Ivers' analysis does contrast with other recent research in this field. But he offers an interesting, provocative, and important analysis, and in the process makes a real contribution to the particular study of public interest law and to the more general law, courts, and judicial process field. Not incidentally, it is, in popular parlance, a very good read.

With sustained attention to three American Jewish organizations (the American Jewish Committee, the American Jewish Congress and the Anti-Defamation League of B'nai B'rith) and related umbrella associations, Ivers tells a fascinating story. Much of this story is, in the final analysis, an account of the work of one individual, Leo Pfeffer. Ivers' scrutiny of Pfeffer's personal files and papers, then, is central to the research underlying the qualitative analysis that he provides. In addition to these sources, the author also draws on the archival records of the three organizations, newspaper and magazine coverage, and interviews with many of the principals. All of these sources are included in the bibliography and frequently referenced in chapter endnotes. From case and amicus brief citations to interview quotations, the analysis is carefully documented.

After a brief overview in the introductory chapter, TO BUILD A WALL starts with a historical account of the development of the American Jewish Committee, the American Jewish Congress, and the B'nai B'rith Anti-Defamation League. This chapter is a fascinating piece in its own right and offers an interesting description of the origins and development of these associations. Particularly illuminating is the degree to which the political posture of these groups was affected by the experiences and backgrounds of their founding members. As Ivers emphasizes, for example, the AJ Committee was established by early Jewish immigrants who came from Germany and Austria and who initially wanted to help Jews who were the victims of pogroms and other persecutions in foreign countries. Undemocratic and elitist, the founders of the AJ Committee advocated discreet lobbying. As Ivers describes it, this general strategy was more compatible with the ADL's emphasis on education and more incompatible with the AJ Congress' preference for litigation, organizational perspectives that also owed a lot to their historical origins and founders. Ivers' account of these organizations and their political association constitutes a rich profile of the American Jewish experience and helps the reader to appreciate his later conclusion on the ad hoc character of public interest law. It also should serve to dispel the sometimes popular notion that there is a single Jewish lobby that dominates American politics. As Ivers points out, there are not only different conceptions of Judaism (religious and ethnic) but also different religious traditions (orthodox, conservative, reform) that have had some dramatic implications for political action generally and public interest law specifically. Although the Holocaust served to solidify the efforts of many different Jewish organizations and helped to prompt cooperation in establishment clause litigation, differences persisted and these affected decisions about both policy and strategy.

The heart of TO BUILD A WALL consists of the three chapters where Ivers analyzes Supreme Court litigation on released-time programs, school prayer, the use of public funds in private, religious schools, and other issues that have featured in establishment clause litigation. These cases are, of course, familiar to any constitutional law scholar. In each of these chapters, then, Ivers does not concentrate on case opinions or related, legal doctrine, per se. Rather, he offers a decidedly political analysis and focuses on the nature of the involvement of the three American Jewish organizations in litigation and their impact on court decisions. As Ivers dramatically details, the interest group activity was neither consistent nor uniformly successful.

As noted earlier, the driving force in most of this litigation was Leo Pfeffer. This, of course, will come as no surprise to public law scholars as Pfeffer's experience, expertise, and writings are well known to many who, with Samuel Krislov, regard him as a "one-man repeat player." But both the constitutional law scholar and student will be fascinated by the detail that Ivers brings to bear on Pfeffer's role in establishment clause litigation. Illustrative is Ivers' account of Pfeffer's initial association with the American Jewish Congress and the accidental character of his early released-time litigation assignment. Also fascinating is his explanation that Pfeffer was not entirely pleased with the strategy adopted in the ZORACH litigation.

After chronicling the politics of this century's most important establishment clause litigation from the 1940s through the 1980s and the role of American Jewish organizations, Ivers considers the implications of all of this for our understanding of public interest law. Here, he takes particular issue with Epstein and Kobylka's (1992) analysis of capital punishment and abortion litigation and "their argument that, more than any other factor, litigants and the arguments they make before the Court determine doctrinal outcomes" (215). Rather, Ivers argues that both organized interests' approach to litigation and their actual impact have a more ad hoc quality. With specific reference to the American Jewish organizations under scrutiny here and with particular attention to the establishment clause decisions of the 1980s, he concludes that "few individuals or organizational litigants, no matter how experienced, skilled and accomplished as practitioners of public interest law, possess the power to overcome the hostile reception their views may command in the Court during a particular moment" (215). In short, Ivers rejects Epstein and Kobylka's thesis that the organized interests involved in and responsible for litigation ultimately determine the Court's decision. Although he does not argue that organized interests are irrelevant in constitutional litigation, he emphasizes that their influence is affected by forces beyond their control. Moreover, even within a particular group (i.e. American Jewish organizations) the social forces that shaped the original and independent organizations persist in sometimes incompatible philosophies, approaches, and, ultimately, degree of cooperation.

To some degree, I think that Ivers overstates both his and Epstein and Kobylka's general arguments about the role of interest groups in litigation. Although he acknowledges that it is dangerous to generalize from what may be considered a case study, he does not devote much attention to the fact that the differences in their respective analyses may be, in part, a function of the different areas of litigation (capital punishment and abortion versus the separation of church and state) under scrutiny and the different mix of interest groups. Regardless, I think that Ivers' conclusion that group advocacy in constitutional litigation may be a "more subtle and complex mosaic of social forces" than previously acknowledged is reasonable and logically derived from the evidence he reports. Certainly, one cannot quarrel with his argument that historical origins, organizational culture, individual personalities, and external events affect both interest group behavior and litigation success.

Whether Ivers' more ad hoc characterization of public interest law prevails in subsequent research, however, remains to be seen. A potentially interesting avenue for research may be to investigate why some interest groups' use of the courts seems more rational and predictable and others less so. In this and other studies of the interplay between law and politics, it is clear that more research on the origins and development of interest groups and more qualitative analyses of their role in constitutional litigation will be needed. The interesting political narrative that Ivers offers in TO BUILD A WALL and the qualitative research that underlies it comprise the author's more general contribution to the study of law, politics, and judicial process. With his specific contribution to the study of public interest law, this constitutes, in baseball parlance, at least an inside-the-park home run. Here's hoping that the Atlanta Braves whose earlier successes, the author notes, marked the beginning of his scholarship in this area are as successful in the 95 World Series!

References:

Epstein, Lee and Joseph F. Kobylka 1992. THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY. Chapel Hill: University of North Carolina Press.

ZORACH V. CLAUSON, 343 U.S. 306 (1952).