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Oral History of Nathan Lewin
This interview is being conducted on behalf of the Oral History Project of The Historical Society
of the District of Columbia Circuit. The interviewer is James Rocap, and the interviewee is
Nathan Lewin. The interview took place at Mr. Lewin’s home in Maryland, on Sunday, August
24, 2025. This is the seventh interview.
MR. ROCAP: Good afternoon, Nat. Nice to see you again. Just as an introduction, there
have been six prior interviews, back in 2017 and 2018. The last one was
November 27, 2018. As we were working on finalizing the oral history, I
suggested to you that it might be good to supplement your thoughts,
particularly on the Establishment Clause and the Free Exercise Clause and
the jurisprudence regarding that, because so much has happened in the last
almost seven years. So that’s what we’re going to do today. This will be the
final session. We might talk about a few other things, but that’s the primary
focus of it.
I just want to add on a personal note, and for posterity’s sake, you have
been a colleague, a partner, and a mentor of mine for many years, ever since
the mid-1970s, and I just want to express my appreciation for everything
you’ve done for me throughout my career. It’s been a pleasure.
MR. LEWIN: Well let me just put a footnote to that. It has been an amazing pleasure to
work on legal matters with you on cases and other things. I still recall you
stepping in when I undertook the Meese representation, and you did a
phenomenal job with regard to that. I always knew I could rely on you, not
just for substance, but for actual personal assistance. You were always
helpful, never trying to grab the limelight for yourself or anything like that,
but just always a team player and always with very helpful and productive
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ideas that I overwhelmingly used and exploited. It would not have been
possible for me to represent Ed Meese without you being at my side. So I
thank you for that and for all the other things that you did during the time that
we were partners in this great law firm that now has three alumni on the
Supreme Court.
MR. ROCAP: We’ll talk about that a bit later. It was a remarkable run, and I was very
fortunate to be part of it. So thank you. Let’s get started.
I noticed in the last session back in November 2018 that you were talking
a little bit about what’s come to be known as the Maryland Cross Case. I
believe it’s American Legion v. American Humanities. At that point, it had
not yet been decided. It was decided the next summer. You at the same time
were working on a dispute with the Pensacola authorities involving the
placement of a menorah. I thought it would be good to start with your
thoughts on how the decision in American Legion, the Maryland Cross Case,
has affected Establishment Clause jurisprudence, and how it changed it from
what you were facing throughout your career in this area.
MR. LEWIN: That case is a very small footnote in terms of the really amazing change in
the attitude of the Supreme Court after the last interview that I had, which
was in 2018. When I think back on the religion cases that I presented in the
Supreme Court, I’m totally convinced that I was presenting cases at the very
wrong time in the history of the Court’s attitude towards the religion clauses
of the First Amendment. The Cross case, American Legion v. American
Humanist Association, that you referred to that was before the Court at the
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time of the last interview, is another one in which the Jewish attitude with
regard to public crosses was that you have to oppose them. I did not. My
view was that a cross which was a historical recollection rather than a
religious symbol was certainly permissible.
Justice Alito wrote an opinion in which he agreed with that. That was one
of the turning points in terms of the Court’s history with regard to the religion
clause.
I argued religion clause cases at a time when the Establishment Clause
was the overriding guide to what the Court was doing. I lost a whole series
of cases, which I’m really convinced that if I presented them today to the
current Supreme Court, I would have won. That begins even with the
yarmulke case, Goldman v. Weinberger, which I lost, surprisingly, at the time,
and to a lot of academic criticism because nobody could see any great harm
in wearing a yarmulke together with a military uniform. The then-Secretary
of Defense Casper Weinberger, who was born Jewish, was totally opposed to
it.
The Supreme Court rejected my claim that you had a constitutional right
to wear a yarmulke in the military. At that point, and at that time until
recently, there was the absolutely disastrous opinion, written by Warren
Burger soon after he became Chief Justice, Lemon v. Kurtzman. I said in the
last interview I had, I was hoping would be overruled.
In the Bremerton case, about the coach who kneeled on the 50-yard line,
the Supreme Court essentially overruled Lemon v. Kurtzman. It said it’s
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burying that opinion. It had long ago been buried according to the opinion
written in Bremerton. Lemon v. Kurtzman, which was a leading light and
authoritative ruling that not only a majority of the Supreme Court justices,
but judges in state courts all over the country, assumed was established law,
with the three-part Establishment Clause test, has now been junked.
Therefore, when I said at the end of the last interview in 2018 that I hoped
the Court overrules Lemon v. Kurtzman, well, it did overrule Lemon v.
Kurtzman.
A retired judge of the New York court of appeals, who was a classmate of
mine at Harvard Law School, Albert Rosenblatt, in a recent Zoom
conversation we had, was surprised to hear that Lemon v. Kurtzman was no
longer the law.
So, I ended the last interview saying I hoped Lemon v. Kurtzman would be
overruled, and in fact, it was. I also ended the last interview saying I hope it
overrules Justice Scalia’s outrageous opinion in Oregon v. Smith. Well, in a
case called Fulton v. Philadelphia in 2021, the magnificent concurring
opinion by Justice Alito essentially demonstrated conclusively that Oregon v.
Smith was clearly wrong. Unfortunately, that opinion did not get a majority
vote, but it was an opinion that appears in the U.S. Reports, Fulton v.
Philadelphia, and it is totally convincing. It’s a magnificent opinion really
destroying Scalia’s Oregon v. Smith opinion.
I don’t know whether this is the only place this will appear, but the last
time that I had lunch with Nino Scalia, when we sat down, he muttered
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something that sounded to me like he was saying that he had second thoughts
about his decision in Oregon v. Smith. I’ve always felt that that decision was
foreordained from the time that Nino Scalia and I were classmates at Harvard
Law School. We had very strong disagreements over the application of
Sunday laws to Sabbath-observing stores. Stores of people who were
Orthodox Jewish had to be closed on Saturdays for religious reasons, and
therefore had a substantial disadvantage if they were also closed on Sundays.
Scalia, who was Notes Editor on the Harvard Law Review, supported the
proposition that was ultimately printed in the Harvard Law Review, and that
was accepted by a majority of the Court, that there was no free exercise right
to be open on Sunday. He had that opinion consistently and tried to
implement it, and ultimately implemented it, in Oregon v. Smith. If Alito’s
opinion in the Fulton case had been joined by the more junior justices of the
time, Oregon v. Smith would also have been overruled, which was my other
wish expressed at the end of the interview in 2018.
MR. ROCAP: That’s a lot about the Establishment Clause. Have there been cases since
then that deal more with the Free Exercise Clause that you also think would
have been, if you had brought those cases back when you were doing this
litigation, they might have gone the other way?
MR. LEWIN: Yes. Free Exercises cases, cases that grant rights of free exercise to
individuals, include the most recent opinion in Mahmoud v. Taylor, in which
parents of public school children had a free exercise right not to have their
children exposed to materials in their public schools that were religiously
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offensive to them. This free exercise right, which dates back to the famous
Amish case, was really vindicated in Mahmoud v. Taylor.
In other recent cases, the Court has upheld the rights of churches and
church properties not to be excluded from generally available public facilities
and funds. When I raised that position in various cases, going back even to
the early decisions of the Supreme Court in which I wrote briefs, the Court
rejected it. Estate of Thornton v. Caldor was a surprising decision by the
Court rejecting the right of a Sunday-observing Presbyterian to be able to
take off and not work at Caldor Department Stores on Sundays. The Court
rejected the position that I and the late Joe Lieberman, attorney general of
Connecticut at the time, took, that said a religious minority should be
recognized as having rights not to be violated by even private parties, and
therefore a law that gave you the right to take off on your Sabbath should be
constitutional. I think today’s Court would recognize that.
In the same vein, the Kiryas Joel case in which the Supreme Court
invalidated a system under which the Hasidic community of Kiryas Joel was
able to have a publicly-financed school for handicapped children within its
own geographic area, even though that was not provided, but it was justified
by an accommodation for their religious needs.
The cases that I had like that included Kiryas Joel, Goldman v.
Weinberger, the yarmulke case, and then ultimately, a case called Hardison,
in which I argued as an amicus curiae on behalf of someone who was being
harmed by not being permitted to take off on religious holidays. The Court
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said that because of the Establishment Clause, you didn’t have a right to an
exemption, and an employer only had to make a minor accommodation –
nothing that would really be substantial – because the requirement to make a
substantial accommodation would violate the Establishment Clause.
So there have been big changes in the attitudes of the Court towards both
the Establishment Clause and the Free Exercise Clause. Those changes were
not controlling when I presented to the Supreme Court a number of religious
liberty cases.
MR. ROCAP: I remember one of the discussions that you had with Susan McMahon, who
conducted the first six interviews, involving the funding of religious schools
or even the funding of particular classes within religious schools. There has
been some recent case law on that, including of course the charter school
case that was ultimately either dismissed or affirmed by a 4-4 vote. It might
be helpful to talk a little big about that. If I’m correct, Carson v. Macon in
2022 involved tuition assistance of some sort, and I wondered if you might
reflect a little bit on your thoughts on where the Supreme Court might be
headed with respect to tuition assistance, whether it’s for charter schools or in
some other factual setting.
MR. LEWIN: I think that the Supreme Court now would be much more sympathetic to the
notion that religious institutions, church-related institutions, should be
permitted to be given financial assistance to put them on a par with the public
facilities. I argued, when I first began my private practice legal career after I
left the government, that the cost of educating students in parochial students
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on subjects that were required under state law, and that were taught to
students whose parents did not have to pay for them in public schools, should
be available free of charge as a constitutional matter to the parents of students
in parochial schools. I continue to believe that. The Court has not yet held
that explicitly, but I think the direction that the Court has been going
indicates that that’s what they ultimately would hold.
MR. ROCAP: Interesting. There have been a number of changes in the Court’s makeup
over the last few years, and they do have a connection to Miller, Cassidy,
Larroca & Lewin. I wondered if you might want to reflect a little bit on that.
I think there are three Supreme Court justices who were at our firm at
different times, beginning with Justice Kavanaugh back in 1989, and then
Justice Ketanji Brown Jackson, being followed immediately by Justice Amy
Coney Barrett.
MR. LEWIN: Justice Barrett, I think, spent the most time at Miller, Cassidy, Larroca &
Lewin. As a matter of fact, I recently found the brief in which the two of us
signed on together in a criminal case that we lost, but nonetheless, her name
is under mine in the court of appeals brief.
The fact is Miller, Cassidy, Larroca & Lewin was the ideal forum and the
ideal place for a young lawyer who wanted to try out his or her abilities in
litigation, and that’s why we attracted such very high-caliber young lawyers.
They were given opportunities to appear individually in cases where large
firms would never give them that chance. This was noted in Justice Jackson’s
recent autobiography, where she spoke very glowingly about her time at
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Miller, Cassidy, Larroca & Lewin. Justice Kavanaugh also in personal
meetings, the very few that I had with him, recognized how formative the
time at Miller, Cassidy, Larroca & Lewin had been. It ended up being a
pioneering firm in terms of opportunities for young lawyers.
MR. ROCAP: I think that even goes back before I came to Miller, Cassidy, Larroca &
Lewin in 1974. Ray Randolph, who later became a judge on the DC Circuit,
was an associate there and I think worked with you and others on various
matters.
MR. LEWIN: Ray Randolph came with me out to Springfield, Illinois, for what was a
major client of the firm. An individual was charged with tax violations, and
he was acquitted by the jury in a case in Springfield. The jury came back not
guilty on all counts. It was a major victory. Ray and I commuted out to
Springfield every week. I would come back for weekends, and the judge
permitted me to come back because I was a Sabbath observer. We had this
extended trial.
The fact is, the firm from the very beginning was able to attract very highquality lawyers. The late Marty Minsker, who was incredibly gifted and
articulate, was one of our first associates, as was Bill Jeffress, who ultimately
became a leader in the Washington, D.C. litigation bar and was very much
sought after. They both came to Miller, Cassidy, Larroca & Lewin at a time
when bonuses were not given to Supreme Court law clerks. We didn’t pay
Minsker or Jeffress anything, not one penny more, than we paid other
associates simply because they had been Supreme Court law clerks. It’s just
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the experience that they got. Jeffress worked with me very early in a case in
federal district court in Virginia. Marty Minsker worked with me on a couple
of cases, one in the D.C. district court and another in the Eastern District of
New York, which were extended trials, and he benefited substantially from
the exposure to the trial practice that he got in those cases.
MR. ROCAP: Other names that I remember of people who went on to have very illustrious
careers included Tom Rowe, who went on to Duke Law School and other law
schools as a professor and leader in the law schools. Do you remember how
Tom came to the firm? This again would have been in the early 1970s. I
think he was there when I got there.
MR. LEWIN: I really don’t remember. There was another former Supreme Court law clerk
who was one of our very first associates, never really meshed with the firm,
and ended up being a leading partner in a Chicago law firm. I’ve forgotten
his name.
MR. ROCAP: His last name was McLean, I believe. And then of course non-judges. Seth
Waxman came shortly after I did.
MR. LEWIN: Seth Waxman and Jamie Gorelick. Jamie Gorelick came with us very much
because of my wife. I taught at Harvard Law School. She was a follower of
Alan Dershowitz, who thought very highly of her and recommended that
maybe we should hire her. We had not had a woman working in the law firm
before, and on Rikki’s advice, I persuaded my partners that we should make
an offer to Jamie Gorelick, who was then in the Harvard Law School and
never went on to be a law clerk. She went straight from the Harvard Law
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School to Miller, Cassidy, Larroca & Lewin because we had the kind of work
that she really wanted to do, and she fit in perfectly into the firm as what was
then our first female lawyer at the law firm.
MR. ROCAP: There are just a couple of other names. We’re going to leave people out
when we shouldn’t, but in terms of former Miller, Cassidy, Larroca & Lewin
partners or associates who went on to illustrious careers elsewhere, that
includes Christopher (Casey) Cooper, who is a district judge here on the
district court. He was there in the early 1990s.
MR. LEWIN: How about Sri Srinivasan, Chief Judge of the DC Circuit?
MR. ROCAP: Correct. He was there for a summer. Mike Gerhardt was there for a few
years as an associate before he went on to become a law professor. You had
also mentioned Rory Little.
MR. LEWIN: Rory Little. Right. He went out to the west coast and taught there.
MR. ROCAP: What was your relationship with Rory when he was at the firm?
MR. LEWIN: I don’t recall the precise details, but we worked together on briefs, and he
credited me with having taught him how to write a brief. I learned how to
write a brief from a line lawyer in the DOJ Criminal Division, Appellate
Section, a fellow by the name of Moynihan. He wrote brilliant briefs for the
Supreme Court in criminal cases, and I followed his model. I learned from
him how to write a brief.
MR. ROCAP: I remember one of the things that you taught me early on, back in the 1970s,
was that a brief reader should be able to understand the brief from the table
of contents.
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MR. LEWIN: That’s true. I see the tables of contents in the briefs that I’ve gone through
recently, and they’re really recitations of the arguments.
MR. ROCAP: They’re very helpful.
MR. LEWIN: The argument headings are really arguments.
MR. ROCAP: It’s been a pleasure. We have had a short session today, but still a pleasure.
Anything else that you recall or would like to add to your oral history?
MR. LEWIN: No. I think that pretty much covers the things I remember as of today. I
grieve for the people who I learned so much from and I worked with and who
are no longer with us, from the other name partners, Jack Miller, John
Cassidy, Ray Larroca, and also from Marty Minsker and other lawyers who I
admired while working with them and for them and in certain ways may be
helping to advance their legal careers.
MR. ROCAP: I will comment that you are at this stage, I think in your 89th year, and you
are just as on top of everything as you were many years ago, at least
mentally.
MR. LEWIN: I wish that were true, but I’m glad you think so. I’ve managed to fool you.
MR. ROCAP: I don’t think so. Well thank you again.
[END RECORDING]
[END OF ORAL HISTORY]
