Eight out of 113 justices to have wielded the gavel in the United States’ highest court can also lay claim to membership in another club — the Tribe — and now, a new book is telling their collective story.
In “Jewish Justices of the Supreme Court: From Brandeis to Kagan, Their Lives and Legacies,” David Dalin provides an unprecedented assessment of all eight of the legal superstars. They are, in chronological order: Louis Brandeis, Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, Abe Fortas, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.
Some are well-known: the pioneer Brandeis through his namesake university; Cardozo with his eponymous law school at Yeshiva University; and Ginsburg, the court’s first Jewish female justice. But a book about all eight had never been written.
“There have been several biographies of Brandeis, Cardozo, Felix Frankfurter, even Abe Fortas,” said Dalin, a rabbi and historian who is himself a Brandeis graduate. “But there’s never been a book [that has taken it] up to the present, or the three Jewish justices — Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan — on the court now.”
The 350 page book, published appropriately enough by Brandeis University Press, interweaves the justices’ careers with their connections to Judaism.
“There are very good stories in the book that kind of humanize the justices and their Jewish background, which are not included in most of the books written about them,” Dalin said.
A historic precedent
The story of Jews on the Supreme Court began in January 1916, when Democratic president Woodrow Wilson made his historic nomination of Brandeis. But the Senate confirmation hearings lasted four months.
“It was one of the two most contentious [Senate confirmation hearings] in American history,” Dalin said.
He described much of the opposition as anti-Semitic — including from Harvard president A. Lawrence Lowell, who later pushed for quotas on Jewish students. However, there were others whose hostility was not anti-Semitic. For instance, former president and future chief justice William Howard Taft opposed Brandeis not out of anti-Semitism, but because he considered Brandeis a socialist, said Dalin.
Brandeis was ultimately confirmed, beginning a tradition of a “Jewish seat” on the court, a sign that Jews could overcome the anti-Semitism that Dalin said was an obstacle in the legal profession for much of the 20th century.
Brandeis — a progressive reformer nicknamed “The People’s Attorney” — set several other precedents for Jewish justices.
“All eight justices were essentially liberals in our understanding,” Dalin said. “Very much left-liberal or at least liberal Democrats. Seven of the eight were nominated by Democratic presidents.”
The exception was Cardozo, who joined Brandeis as the court’s second Jewish justice after being nominated by Republican Herbert Hoover in 1932.
“Hoover’s presidency was not one of the great [ones], but most historians and biographers say he had one very great achievement, appointing Benjamin Cardozo,” Dalin said.
‘All eight justices were essentially liberals in our understanding’
That same year, Hoover lost a reelection bid to Democrat Franklin Delano Roosevelt. After Cardozo died in 1938, FDR nominated Frankfurter in 1939. Frankfurter and Brandeis served together briefly before the latter retired.
“Felix Frankfurter was appointed as a very left-liberal Democrat,” Dalin said. “He was a champion of every liberal cause.” But, Dalin said, “he gradually became more and more conservative over 23 years [on the court]. When he retired in 1962, he was the most conservative member of the Warren Court.”
Frankfurter’s successors on the “Jewish seat” generally followed more liberal paths. Dalin writes that Goldberg paved the way for the court’s 1972 ruling that the death penalty was unconstitutional, while Fortas was influential in the development of Miranda rights.
And in 2009, as solicitor general, Kagan argued the Obama Administration’s brief in Citizens United v. Federal Election Commission, urging the court to oppose corporations spending unlimited funds on political campaigns. While she lost the case, future colleagues Ginsburg and Breyer supported her argument.
A towering trio
“Justice Brandeis, Justice Cardozo, and Justice Frankfurter were arguably the three most important of the eight Jewish justices who have served to date,” John Vile, a professor of political science at Middle Tennessee State University, wrote in an email.
“[Brandeis] was known even before being appointed to the court for developing the ‘Brandeis Brief,’ which mustered social and economic data for the court’s consideration. He often joined forces with Oliver Wendell Holmes, Jr. Justice Cardozo was one of the court’s greatest writers and was supported by both Republicans and Democrats. Despite his previous reputation as a liberal, Justice Frankfurter was one of the strongest advocates for judicial restraint,” wrote Vile.
Of the contemporary Jewish justices, Vile wrote, “Justice Ginsburg is, of course, only the second woman to have served on the court. [The first was Sandra Day O’Connor, who served with Ginsburg until O’Connor retired in 2006.] Justice Breyer has charted a relatively independent path on the court, and Justice Kagan was well known for her legal advocacy prior to being appointed.”
Dalin’s book addresses controversial aspects of some of the justices. Goldberg questionably resigned in 1965 to become then-president Lyndon Johnson’s ambassador to the UN (he helped negotiate an end to the Six Day War). Johnson appointed his confidant Fortas to the seat and later nominated him for chief justice in 1968; he would have been the first Jew in that position.
But Fortas’ pursuit of income beyond his court salary, including ties to convicted financier Louis Wolfson, sank his nomination and, in 1969, led to his resignation from the court and the end of the “Jewish seat” after 53 years. Not until 1993, with Ginsburg, would another Jewish justice be appointed to the court.
As Dalin chronicles each justice’s tenure, he also examines their relationship to Judaism.
Sometimes, that relationship was complex. Brandeis, whom FDR called “Old Isaiah,” was a connoisseur of hams from his native Kentucky and had “the least Jewish background of any” of the justices, Dalin said.
Others were more traditional — Goldberg’s family recipe for charoset, a Passover staple, is written on Supreme Court letterhead in one of the book’s 38 photos. Still others found new ways to practice their religion, including Kagan, who pushed to become the first Orthodox bat mitzvah at the Lincoln Square Synagogue in New York — at a service performed by now-chief rabbi of Efrat, Shlomo Riskin.
Dalin addressed further issues regarding Brandeis and Frankfurter.
‘Brandeis, a few short times, seriously considered resigning from the court to devote himself to Zionist activities’
“Brandeis was instrumental in persuading Woodrow Wilson and the administration to support the Balfour Declaration,” Dalin said. “Brandeis, a few short times, seriously considered resigning from the court to devote himself to Zionist activities.”
Instead, Dalin said, “he did a lot of behind-the-scenes work for the Zionist movement,” — including sending his friend Frankfurter, who was then a Harvard professor, to the Versailles peace conference as a legal adviser to the Zionist delegation.
A generation later, Frankfurter failed to urge the Roosevelt administration to intervene against the Nazis and the Holocaust.
“[Frankfurter’s] beloved uncle in Austria, in his 80s, was arrested by the Nazis,” Dalin said. “He did not lobby FDR on his uncle’s behalf.” [Though he did lobby Nazi sympathizer Lady Nancy Astor, who successfully intervened, Dalin writes in the book.]
Also, Frankfurter did not ask his friend and neighbor, Assistant Secretary of War John McCloy, to support a 1944 proposal to bomb the Auschwitz death camp or railroads leading to the camp. Dalin said the proposal — which McCloy vetoed — would have saved Hungarian Jews who had been sent to Auschwitz starting in the spring of that year.
“Felix Frankfurter never lobbied or spoke of it to McCloy or [War Secretary Henry Stimson,] one of his mentors,” Dalin said. “It’s certainly a critique of Felix Frankfurter.”
Dalin also noted that while Jewish justices from Brandeis onward started a tradition of hiring Jewish law clerks, Frankfurter declined to set another precedent.
In the late 1950s, Dalin said, “Frankfurter’s law clerks were recommended to him by Albert Sacks, a Jewish law professor at Harvard and later the first Jewish dean of Harvard Law School. [Sacks] recommended a brilliant [student], one of his star pupils, to Frankfurter: Ruth Bader Ginsburg. [Frankfurter] refused to meet with her or interview her. He told Sacks, ‘I’m getting on in life.’ He was set in his ways, he could not imagine a woman as a law clerk.”
“He had appointed so many Jewish law clerks. He broke a barrier when he appointed the first African-American law clerk. He would not appoint a woman as a law clerk,” said Dalin.
A stake in national progress
Times are different today.
“Jewish justices have certainly been quite influential on the court, and the current court has more Jewish justices than any previous one,” Vile wrote. “No longer do presidents appear to assure that there is only a single ‘Jewish seat’ on the court.”
And, he wrote, “It is interesting that two of four women appointed to the US Supreme Court are Jewish.”
He cautioned against applying too broad a brush to members of any particular group.
‘Fortunately, we are beyond the days when the public might oppose a justice because of his or her religious or ethnic background’
“I’m certainly not saying that the author has done this, but I am always a bit concerned that we come to view judges according to whether they are Roman Catholics, Jews, women, Latino, Democrats, Republicans, or the like,” he wrote, noting that there are “many varieties” of Jews and other demographic groups and adding that members of the same group may differ in other ways, such as female justices O’Connor and Ginsburg.
What has become clear, though, is that the court has become welcoming for all groups.
“Fortunately, we are beyond the days when the public might oppose a justice because of his or her religious or ethnic background or when a justice (James McReynolds) could decline going to a ceremonial function because ‘I am not always to be found when there is a Hebrew [Justice Brandeis] abroad,’” Vile wrote.
Brandeis ultimately befriended his old adversary Taft. And Dalin discussed Ginsburg’s more recent friendship with the late conservative Justice Antonin Scalia, with the opera-loving duo even donning powdered wigs and 18th-century garb to appear in a stage production of Strauss.
The book might have required a revision had then-president Barack Obama’s nominee Merrick Garland been confirmed. In its pages, Dalin does speculate on what might happen if and when Ginsburg and Breyer retire. (“The Notorious RBG” — whose fitness regimen is the subject of another new book, “The RBG Workout,” and who will be played by Jewish actress Natalie Portman in an upcoming film — is on track to break Brandeis’ record for longest tenure by a Jewish justice.)
While the future may be uncertain, the past and present achievements of Jewish justices have helped ensure a current climate of acceptance on the Supreme Court.