Jew­ish Jus­tices of the Supreme Court, from Bran­deis to Kagan

  • Review
By – May 16, 2017

Bare­ly more than a cen­tu­ry ago, a Jew took a seat on the Supreme Court under high­ly con­tentious cir­cum­stances, with half a dozen past pres­i­dents of the Amer­i­can Bar Asso­ci­a­tion declar­ing Louis D. Bran­deis to be unfit for so con­se­quen­tial a post. He nev­er­the­less served with dis­tinc­tion, inau­gu­rat­ing what would come to be con­sid­ered the Jew­ish seat” on the nation’s high­est appel­late court. But, as David Dalin shows in this excep­tion­al­ly absorb­ing and infor­ma­tive por­trait gallery of Jus­tice Bran­deis and his sev­en suc­ces­sors, such an enti­tle­ment for a mem­ber of so tiny an eth­no-reli­gious minor­i­ty has been his­tor­i­cal­ly con­testable. For exam­ple, two Jews have served simul­ta­ne­ous­ly — in the 1930s, when Ben­jamin Nathan Car­do­zo joined Bran­deis; and now, when, remark­ably enough, a trio serves: Ruth Bad­er Gins­burg, Stephen Brey­er, and Ele­na Kagan. And dur­ing an era of Repub­li­can ascen­dan­cy, from Richard Nixon through George H. W. Bush (and when Jim­my Carter had no vacan­cies to fill), no Jews were added to the Supreme Court. Pres­i­dent Nixon and his attor­ney-gen­er­al, John Mitchell, even sneered at the very notion of nom­i­nat­ing a Jew to suc­ceed the dis­graced Abe For­t­as, accord­ing to John W. Dean’s The Rehn­quist Choice (2001), a book that Dalin cites in a bib­li­og­ra­phy that is admirably com­pre­hen­sive. So secure is the cur­rent sta­tus of Amer­i­can Jews — whether as cit­i­zens, or as mem­bers of the bar — that the very notion of reward­ing them with a slot on the Court seems rather quaint.

The span of a cen­tu­ry, as Jews reached such a pin­na­cle of pub­lic life, includes a bewil­der­ing num­ber of byways, and Dalin has a spe­cial flair for reveal­ing the pecu­liar­i­ties of each path that the eight Jus­tices took to the top. He is inge­nious in draw­ing bio­graph­i­cal com­par­isons and in mak­ing his­tor­i­cal gen­er­al­iza­tions about the com­po­si­tion of the Court; and lurk­ing in his book are many sur­pris­es. (For instance, Felix Frank­furter, for all of his brain­i­ness, had vir­tu­al­ly no schol­ar­ly cre­den­tials when he joined the fac­ul­ty of Har­vard Law School; nor did he become a more ded­i­cat­ed schol­ar in the two decades before join­ing the Court.) Dalin’s accounts of the major cas­es and deci­sions for which the eight were respon­si­ble are lucid and suc­cinct. A rab­bi as well as his­to­ri­an, he offers the great­est illu­mi­na­tion on the Jew­ish­ness of these Jus­tices. Some — like Frank­furter and For­t­as — start­ed out Ortho­dox but had com­plete­ly aban­doned obser­vance (and pre­sum­ably faith) by ado­les­cence. Bran­deis start­ed out bar­ren of any sort of Juda­ic prac­tice, and the only hol­i­day that he hon­ored in any way was Christ­mas. Besides Bran­deis, only Arthur Gold­berg played an active role in orga­nized Jew­ry, serv­ing as pres­i­dent of the Amer­i­can Jew­ish Com­mit­tee and of the Board of Over­seers at the Jew­ish The­o­log­i­cal Sem­i­nary. Though Brey­er, who start­ed out Reform, is a par­tial excep­tion, recent Jus­tices have been more will­ing than their pre­de­ces­sors to pay trib­ute to the ide­al of peo­ple­hood. What would Bran­deis have made of the mezuzah that Gins­burg nailed to the door­post of her cham­ber? What would Frank­furter, who refused to hire her as his clerk because of her gen­der, have made of Kagan, the only Jus­tice in Amer­i­can his­to­ry to have cel­e­brat­ed her bat mitzvah?

Discussion Questions