Noting Elena Kagan’s remarkably well-written opinions, The New Republic’s Jeffrey Rosen cited this following quip from the newbie Supreme Court justice. “They are making a novel argument: 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,” she said in her minority opinion of the winners of one case. “Some people might call that chutzpah.”
Is this the exasperated Yiddish word’s first appearance at the highest court in the land? It is not, and close court-watchers could actually guess which justice was the first to use it. It’s not Brandeis or Ginsburg or any of the Supreme Court’s other eight Jewish justices past and present. Rather, the feisty, Queens-born, extremely Catholic Antonin Scalia first deployed “chutzpah” in 1998, and in much the same way that Kagan did: “It takes a particularly high degree of chutzpah for the [National Endowment for Arts] to contradict this proposition,” he complained, “since the agency itself discriminates—and is required by law to discriminate—in favor of artistic (as opposed to scientific, or political, or theological) expression.” In both cases, “chutzpah” is negative; more precisely, it is a specific form of hypocrisy.
Yet, as Jack Achiezer Guggenheim quoted a New Jersey federal court soon after Scalia’s c-bomb in a fabulous article on the intersection of U.S. law and Yiddish, “Legal chutzpah is not always undesirable, and without it our system of jurisprudence would suffer.” In other words, that Brown fellow who sued the Topeka, Kansas, Board of Education certainly had chutzpah, too.