Opening Statements

Chutzpah: Yiddish Term Makes a Showing at the Supreme Court

Posted Oct 1, 2011 4:30 AM CDT
By Richard Brust

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Spencer Platt (Scalia), Brendan Smialowski (Kagan) / Getty Images

So this guy walks into a lawyer’s office and asks how much he charges. “A thousand dollars for three questions,” the lawyer says. “Wow,” the guy says, “isn’t that kind of expensive?” “Yes, it is,” says the lawyer. “What’s your third question?”

That shtick is played by Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals at San Francisco and UCLA law professor Eugene Volokh in their 1993 Yale Law Journal article, “Lawsuit, Shmawsuit.” It’s an example of chutzpah, the Yiddish word that fits lawyering like mustard on a hot pastrami sandwich.

In the 1968 book The Joys of Yiddish, author Leo Rosten translates chutzpah as nerve or unmitigated gall. (Rosten retells the exemplary fable of a person charged with killing his parents who pleads for mercy because he’s now an orphan.)

But Harvard law professor Alan Dershowitz, in his 1991 book called (what else?) Chutzpah, is more upbeat, describing it as “boldness, ... defy[ing] tradition ... rais[ing] eyebrows.” The word has both the tang of a dill pickle and the comfort of a bagel with a schmear of cream cheese.

So what was the mishegoss over U.S. Supreme Court Justice Elena Kagan’s use of the word in her dissent in last term’s Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett? It was as much about her first reading of a dissent from the bench as it was being the first Jewish justice to use the word.

“In the usual First Amendment subsidy case,” wrote Kagan, who was raised on New York City’s Upper West Side, “a person complains that the government declined to finance his speech while bankrolling someone else’s. ... But the candidates bringing this challenge [instead claim] that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.”

But it wasn’t the Supreme Court’s first use of the word. That happened in 1998 with Justice Antonin Scalia—educated, no less, in a New York Catholic high school and at Georgetown University.

“Congress ... was not constitutionally required to fund programs encouraging competing philosophies of government,” he wrote in National Endowment for the Arts v. Finley. “It takes a particularly high degree of chutzpah for the NEA to contradict this proposition, since the agency itself discriminates ... in favor of artistic (as opposed to scientific or political or theological) expression.”

So maybe religion has less to do with it than a Big Apple pedigree?

“It has the air of a fun word,” Volokh says. “It brings up all sorts of jokes. Scalia strives for a colorful writing style, and so does Kagan. What you are seeing here is less of an ethnic division and more the style of the author.”

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