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).