Minorities in High Office: The Case of the Jewish Justices

 
 

A new book by David Dalin tells the fascinating stories of America’s Jewish Supreme Court justices.

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My grandfather died when I was six, but I still remember him well. He was the fifth of ten children, five of whom immigrated here in 1904 from what was then Hungary (today their native town is in Slovakia). The other five remained in the old country.

All five were gassed and incinerated at Auschwitz in late 1944. For the extermination of my great uncles and aunts, it turns out that Felix Frankfurter bears solemn responsibility.

I acquired that troubling insight, along with others, from David Dalin’s Jewish Justices of the Supreme Court: From Brandeis to Kagan, a fascinating and overdue survey of the eight Jews who have figured among the 113 occupants of our highest judicial office. Jewish Justices, the latest publication in Brandeis University’s “Series in American Jewish History, Culture, and Life,” is copiously end-noted and dispassionately recounted. Yet it remains so readable that it is digestible in a weekend.

For each of the eight Jewish justices—and for the dozens of prominent Jewish attorneys who missed getting a shot at the Supreme Court, sometimes because of their Judaism—Dalin examines their careers and describes the political machinations that led to their being, or not being, in the “right place at the right time” for SCOTUS confirmation. He proceeds to describe the eight justices’ most famous rulings while on the Court, their attachment (or lack thereof) to Judaism and Israel, and the broader impact he believes their jurisprudential outlook had or will have. Also discussed is the historically anti-Semitic structure of the American legal profession, including American legal education. The fact that, despite this structure, 7.1 percent of those who have served on the Court have been Jewish is a validation of America’s meritocratic and egalitarian ideals.

Although the full book is worth a read, I’ll present here, in chronological order, a synopsis of each justice’s life and career, as recounted by Dalin. As their stories illustrate, America’s Jewish justices have been poor and rich, northern and southern, Ashkenazim and Sephardim, judicially liberal and (in one case) conservative. But there seems to be one sad constant: with rare exceptions, their rise in prominence was accompanied by (and was perhaps due to) a decline or even abandonment of their religious practice.

Louis Brandeis

Louis Brandeis, born in 1856 and the nation’s first Jewish justice, was the second Jewish Supreme Court nominee (after Judah Benjamin, a US Senator and future Secretary of State of the Confederate States of America who declined Millard Fillmore’s appointment because he wanted to retain his high salary as a practicing lawyer). Brandeis’s favorite uncle, Louis Dembitz, was an Orthodox Jew and prominent abolitionist who founded Kentucky’s Republican Party. His uncle so impressed Brandeis that he changed his middle name from David to Dembitz.

Louis Dembitz Brandeis switched parties to support Woodrow Wilson, who nominated him to the Court. But the uncle’s Judaism evidently did not rub off on the nephew. Louis grew up with no Jewish observance, and after he moved to Boston to study and then practice law, he was delighted to receive regular deliveries of hams from his brother back in Louisville. He and his wife (who was his second cousin) were married in a civil ceremony, and he never had anything to do with Jewish religious life. Later in life, he did become a Zionist, though, and perhaps this is what incurred the wrath of Harvard President A. Lawrence Lowell, a vile anti-Semite who played a prominent role in the campaign opposing Brandeis’s Supreme Court appointment. Lowell House and Lowell Dining Hall remain on Harvard Yard, signs that our recent anti-racist un-naming spree has not run its course.

Brandeis made a fortune as an attorney (over $1 million per year in today’s dollars), and while sincerely espousing social reform efforts, he was happy to receive massive payments as a rainmaker at his corporate firm. While on the Court, Brandeis engaged in behavior that would surely be ethically condemned today. He remained a regular Democratic political consultant, despite being ordered to cease and desist political activity by then-Chief Justice White. Justice Brandeis also used his wealth to keep his former clerk, Felix Frankfurter, on retainer as a “paid political lobbyist and lieutenant” to promote Brandeis’s progressive legislative goals.

No Jewish prayers or psalms were recited at Brandeis’s funeral, at which no rabbi officiated.

Benjamin Cardozo

Benjamin Cardozo, born in 1872 to a prominent New York Sephardic family of Portuguese descent that had settled in America before the Revolution, was one year old when his father resigned as a New York trial judge under a cloud of suspicion of Tammany Hall corruption. Cardozo’s own probity while in office was perhaps a natural reaction to the shame occasioned by his father’s disgrace.

Religiously, Cardozo was raised in an Orthodox family and retained membership in New York’s preeminent Sephardic synagogue, though he ceased all attendance after his Bar Mitzvah. Unlike Brandeis, Cardozo retained an admiration for Jewish customs and complied with dietary rules. Dalin goes into detail explaining how crass anti-Semitism, including by three sitting Justices, prevented Cardozo (then seen as the smartest state judge in America) from ascending to the Court until late in life. He served actively for fewer than six years, and for that reason had a limited impact on federal jurisprudence.

His funeral was an Orthodox service conducted entirely in Hebrew.

Felix Frankfurter

Felix Frankfurter, born in Vienna in 1882, arrived at Ellis Island in 1894 unable to speak any English. This Ashkenazi immigrant’s origin was a world away from Cardozo’s. Frankfurter’s father “sold linens, silks, and furs, sometimes out of their apartment, sometimes door-to-door, and never to much profit.” He was educated at PS 25 on the Lower East Side and graduated (third in a class of 775) from City College, though his real university was the extraordinary Cooper Union, where he spent four afternoons a week reading.

Frankfurter all but eliminated his connections to Jewish life. After Harvard Law, he signed on at a firm that previously had never hired a Jew. Indeed, he did not apply to any Jewish firms. His friends were almost all members of Boston’s Protestant establishment, and he clearly aspired to become an integral part of this society. His mentor was the American aristocrat Henry Stimson. Frankfurter married Marion Denman, the daughter of a Protestant minister, whose family had arrived before the Revolution and who was “as Yankee as Yankee could be,” “a fact that enhanced her appeal for Frankfurter.”

As a Harvard law professor (subsidized by Brandeis, as we have seen), Frankfurter became an acquaintance, then a confidant and advisor, to Franklin Roosevelt when the latter ran for governor of New York. His impact on FDR’s New Deal policies was so strong that the first director of the National Recovery Administration claimed Frankfurter was “the most influential single individual in the United States.” He became Roosevelt’s third (of nine!) Supreme Court appointment in 1939. Vociferous opposition to this immigrant’s nomination came from old-line German Jews such as New York Times publisher Arthur Sulzberger, whose “Jewish protest against Frankfurter” argued that appointing a second Jew to the Court (Cardozo was already there) “would only intensify charges that Roosevelt’s New Deal was actually the ‘Jew Deal’ and that, as Nazi propaganda would have it, Jews were seeking to control the world by dominating FDR’s administration.” But confirmed he was, and like his mentor Brandeis, Frankfurter continued while in office to closely advise Roosevelt in ways that, as Dalin concedes, “blatantly violated judicial ethics and propriety.”

As part of this regular advice, Frankfurter initially urged the President to help European Jews settle in the USA, but “did not press the president unduly” when FDR resisted. Dalin’s book unfortunately fails to mention the May 1939 tragedy of the MS St. Louis. Why did Frankfurter not intervene with FDR to counter Secretary of State Cordell Hull’s recommendation that 900 Jewish refugees not be allowed to dock in Miami? Hull’s decision sent the Jewish passengers back to Europe on the eve of the Holocaust. Many were ultimately slaughtered.

Perhaps Frankfurter could have pleaded ignorance of the refugees’ plight in 1939, though that seems doubtful. In any case, to me, the pièce de résistance of Jewish Justices is Dalin’s detailed report on Jan Karski’s 1943 briefing to Frankfurter about the extermination camps Karski had witnessed while courageously disguised as an Estonian prison guard. In the presence of the Polish ambassador, who had arranged the official meeting, Karski graphically described to Frankfurter his observation of the Warsaw ghetto and the Belzec death camp. The ambassador was astonished when Frankfurter refused any assistance and scurried from the briefing room.

In 1944, FDR was known to be considering the World Jewish Congress’s request that he bomb Auschwitz. Though Frankfurter was an extremely trusted advisor who chimed in on every public policy issue about which he felt strongly, he declined to meet with his good friends Roosevelt and Stimson (then Secretary of War) when (to Frankfurter’s knowledge) they were deciding this question. So FDR didn’t bomb Auschwitz, which was used in the last months of the war to exterminate Hungarian and Slovakian Jewry, including my ancestors. Note that in 1938 Frankfurter had intervened to save his uncle Solomon when the latter was arrested by Nazi storm troopers in Vienna. But years later he could apparently not bring himself to attempt to save hundreds of thousands of his coreligionists.

On the bench Frankfurter, a policy progressive, orchestrated the unanimous Brown v. Board of Education decision, outlawing public school segregation. He despised racism and hired the Court’s first black law clerk (though he refused to hire women of any race). On other matters, Frankfurter believed in judicial restraint. He declined to strike down state laws banning flag-burning and Sunday commerce. He voted (in dissent) to strip Communist William Schneiderman of his citizenship on the grounds that his naturalization oath was incompatible with Communist party membership. He voted (again in dissent) against federal efforts to force reapportionment of the Tennessee state legislature. He despised Justice William O. Douglas and apparently had poor relations with all of his colleagues. Frankfurter’s departure from the Court was especially cheered by those who identify law with policy.

Interestingly, this man who had married a Protestant minister’s daughter and had never once set foot in a synagogue as an adult asked an observant former clerk to recite Kaddish at his funeral.

Arthur Goldberg

Arthur Goldberg, born in 1908 to poor immigrants in Chicago, finished first at Northwestern Law School and practiced at a Jewish firm. He became Labor Secretary in the Kennedy Administration and was appointed to fill “the Jewish seat” Frankfurter vacated in 1962. His judicial activism was in stark contrast to Frankfurter’s restraint; Goldberg was especially notorious in his efforts to use the Constitution to ban the death penalty (despite its explicit mention in the Constitution). Goldberg’s influence was greatly lessened by the fact that he served less than three years before, incomprehensibly, resigning to become ambassador to the United Nations. He later wrote, “I left because of vanity. I thought that I could influence the President [Johnson] to get out of Vietnam.” He couldn’t, and resigned again to run (unsuccessfully) for governor of New York.

He remained a synagogue member throughout his public life and was the first Justice to hold an annual Passover Seder. He died of a heart attack in 1990 and was buried after a Jewish funeral.

Abe Fortas

Abe Fortas, born in Memphis in 1910 to immigrants from England, occupied “the Jewish seat” after Goldberg. He was not observant, and married a Protestant woman with whom he developed, as Dalin tactfully puts it, “expensive tastes.” Indeed, Dalin observes, “[f]or Fortas, as for Frankfurter, his parents’ Judaism would always remain an obstacle to be overcome, rather than a heritage to be celebrated.” Fortas and his wife both became senior partners at the firm now known as Arnold and Porter, drove a Rolls Royce, lived in Georgetown, and summered in Westport, Connecticut. Fortas’s wife apparently never forgave him for taking the salary cut of a Supreme Court appointment without her consent. While on the Court, he was a reliable fifth liberal activist vote. He followed in Brandeis’s and Frankfurter’s footsteps in remaining a political advisor to the Johnson White House from his Supreme Court chambers (he actually had a private phone line to 1600 Pennsylvania Avenue installed at the Court). After less than three years, he was nominated by LBJ as Chief Justice. During confirmation hearings for this position, he met his doom by lying to the Senate about his legislative activity while on the Court, and by admitting that he had accepted a “donation” from a man under SEC investigation. Fortas resigned from the Court in May 1969. He died in 1982. His memorial service at the Kennedy Center was, like Brandeis’s, completely devoid of Jewish content.

Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan

Ginsburg, Breyer, and Kagan are, of course, current justices. Jewish Justices deals with them rather summarily. President Clinton nominated Justice Ginsburg in 1993, and Justice Breyer a year later. (Breyer had interviewed for the 1993 slot, but he had just had a traffic accident and apparently interviewed poorly).

Justice Ginsburg is an incredible path breaker, setting firsts for women in every sought-after endeavor (except in her effort to become Felix Frankfurter’s judicial clerk—who as noted above squarely refused ever to hire women). Late in life, she appears to have had a desire to return to the religious roots she had abandoned in the name of gender equality. Justice Breyer is married to the daughter of an English Lord, grew up in a San Francisco Reform family, and never actively practiced any religion. Justice Kagan, by contrast, had a Bat Mitzvah in an Orthodox synagogue (no mean feat for a woman in the 1970s) and dared brag during her confirmation hearings that she did not celebrate Christmas. None of the current Jewish justices practices judicial restraint the way Felix Frankfurter did. Dalin does note that Breyer is less reliably liberal than Ginsburg or Kagan, but does not adequately tie this to Breyer’s self-described pragmatist agnosticism about the Rule of Law.

Not Perfect, but Worthwhile

Jewish Justices is not a perfect book. It contains several obvious errors that careful editing should have caught (examples: Federal Courts of Appeals are Circuits, not Districts; the Roosevelts summered in Campobello New Brunswick, not in Maine; Brown v. Board did not overturn the infamous Plessy v. Ferguson; and Justice Goldberg was indeed instrumental in banning the death penalty for a while, but Dalin neglects to mention that this bit of judicial activism was itself  subsequently “clarified”). Most embarrassingly, perhaps, the last page of the book notes that President Trump spurned Jewish nominee Merrick Garland, but proofreaders neglected to modify Dalin’s observation, only four pages earlier, that the 2016 election had not yet occurred and that Garland could well become a fourth current Jewish Justice.

Those imperfections aside, Jewish Justices is a very worthy compilation. After reading it, one finds it hard to avoid the conclusion that our Jewish Justices have been middling to good, but not brilliant—no Holmesian or Scalian intellects here (Cardozo had insufficient time to shine, and this writer thinks Kagan has great potential). And with precious few exceptions (Justice Goldberg, possibly; Justice Kagan, one hopes), the Jews who rose to exalted judicial office were Jews who chose to leave Judaism behind. Grabbing the American judicial brass ring while remaining religiously Jewish, it turns out, is an acrobatic skill few if any have mastered.

Michael I. Krauss is Professor of Law at Scalia Law School, George Mason University.

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