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The Supreme Chutzpah
Jack Achiezer Guggenheim


Jack Achiezer Guggenheim

Last term something novel occurred at the nation's highest court. A decision of the U.S. Supreme Court used the word "chutzpah" for the first time. The decision was written by Justice Antonin Scalia in National Endowment for the Arts v. Finley, and addressed the interaction between government funding and free speech. Chutzpah is a Yiddish word connoting brazenness. A federal court in the Northern District of Illinois noted in a decision a couple of years ago that chutzpah means shameless audacity; impudence; brass. Leo Rosten's The Joys of Yiddish defines chutzpah as a Yiddish idiom meaning "gall, brazen nerve, effrontery." But neither English translation can do the word justice; neither definition can fully capture the audacity simultaneously bordering on insult and humor which the word chutzpah connotes. As a federal district court in the District of D.C. noted in 1992 that chutzpah is "presumption-plus-arrogance such as no other word, and no other language can do justice to.''

Perhaps the classic "legal" definition of chutzpah is the closest; a person who kills his parents and pleads for the court's mercy on the ground of being an orphan. However, in defining chutzpah in the context of American jurisprudence it is also important to note, as a court in the federal district of New Jersey did in 1995, that "Legal chutzpah is not always undesirable, and without it our system of jurisprudence would suffer.''

Part of the uniqueness of Yiddish words like chutzpah is that their meaning varies depending on context and degree. In the right circumstances and to the right degree chutzpah may intimate spunk. But in the wrong situation or to an improper degree, chutzpah implies insolence. In fact chutzpah can have such negative connotation that the word itself has occasionally caused litigation. For example, Senator Charles Schumer was sued, unsuccessfully, on the basis that his statement, "In Brooklyn, we have a word for something like that - chutzpah" was false and defamatory.

The unique shades and subtleties that Yiddish allows has made it a language of choice in recent American jurisprudence when English fails to provide a word with the proper connotation. The Seventh Circuit noted in 1995, Yiddishisms such as chutzpah "have become absorbed into standard English and are now applied to members of all racial and ethnic groups." According to Judge Alex Kozinski of the Ninth Circuit, Yiddish is quickly supplanting Latin as the spice in American legal argot. The earliest reported case that uses a Yiddish word is believed to be a New York surrogate court's decision of 1929. As Judge Kozinski has noted, more recently the U.S. Court of Appeals for the Second Circuit incorrectly defined a bagel; the word "kibbitz" has appeared in at least 10 decisions; the word "maven" has appeared in at least four decisions; the word "klutz" has appeared in at least three decisions; and the word "schmooze" in at least one decision.

Chutzpah made its federal debut in a 1973 opinion. Since then the Court of Federal Claims has created a "Chutzpah Championship;" the D.C. Circuit a "Chutzpah Award," and the Federal Circuit a "Chutzpah Doctrine." It was only a matter of time until the U.S. Supreme Court invoked its own chutzpah. National Endowment for the Arts v. Finley, a case that addressed the government's right to choose which expression to sponsor, provided the perfect forum for the Court to exercise its own right to express itself.

It was especially apropos that Justice Scalia used the term. Justice Scalia has been admired even by his ideological dissenters for his appropriate sense of humor in discussing deeply important subjects such as religion and politics. Furthermore, Justice Scalia, a devout Catholic raised in Queens, has repeatedly called for more expressions of tradition and religion in American society. The use of the word chutzpah, with its historical roots and association with Judaism, may fulfill such a role. It also comports with his legal philosophy. He favors the "nonpreferentialist" view which posits that government may support religion in general but not in a way that prefers any particular religion. For Justice Scalia to use a term of a Jewish cultural language in a Supreme Court decision could be viewed as in keeping with the nonpreferentialist legal doctrine.

In National Endowment for the Arts, a number of performance artists and an artists' organization brought an action against the NEA, claiming that the denial of grant applications violated the artists' constitutional rights. Justice Scalia felt exasperation for both the artists' challenge to the statute and the NEA's interpretation of the statute, and even Justice Sandra Day O'Connor's majority decision. In his concurrence, he agreed with the majority that the statute was constitutional. However, he apparently found that the NEA's interpretation of the statute as merely instructional and not mandating viewpoint based discrimination was truly chutzpah, writing: "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."

It is interesting to note that although Justice Scalia felt the need to define the words "decency" and "respect" and called on the use of the American Heritage Dictionary to do so, he did not define "chutzpah," no doubt because the word is so obviously a part of the English lexicon.

What does increasing use of the word chutzpah signify? Perhaps it reflects the developing mosaic of the United States. American Jewish lawyers initially faced discrimination in the United States. Large law firms were closed and bar associations turned a cold shoulder. But now a Yiddish term is used in a U.S. Supreme Court decision with hardly any notice. The salad bowl has replaced the mixing pot, and the cucumbers, tomatoes, and even the avocados are becoming accepted. And maybe this is the most fantastic chutzpah of all; while the world has an unfortunate history of prejudice, in America tolerance and pluralism are becoming traditional values.

Jack Achiezer Guggenheim, a graduate of Columbia Law School and Yeshiva University, is a clerk for Judge Lawrence M. Baskir, U.S. Court of Federal Claims. This essay was adapted from an article in the Kentucky Law Journal, Volume 87 Book 2, and is reprinted with the permission of the author.

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