By Adv. Craig Snoyman

With Senate Judiciary Committee  interviewing  Katanji Brown Jackson to be the first black  female justice  on the Supreme Court of America bench, it’s worth remembering that she may be taking  “a Jewish seat”,  that of Stephen Breyer, the judge for whom she once clerked.

The first Jewish judge was appointed in 1916 by President Woodrow Wilson. Louis Brandeis, arguably the brightest,  most farseeing, progressive justice of the 20th century, graduated from Harvard at age 20, with the highest marks ever achieved by a student. In an age of  antisemitic resistance, Harvard president A. Lawrence Lowell (who later pushed for quotas on Jewish students) opposed the appointment of its alumni’s most brilliant student as a Supreme Court justice due to his religion.

His was the first confirmation hearing for a Supreme Court justice. Until that point, the Senate simply voted yay or nay. While he waited 125 days between his nomination on Jan. 28, 1916, and his confirmation on June 1, 1916, the longest wait that anyone had waited until then. This hardly compares to  Republican nominee Janice Rogers Brown, the first black female nominee for the appointment  as Circuit Court of Appeal, whose nomination was delayed by two years before the Democrats allowed her to take her position – all due to her conservative judicial outlook.

Brandeis, a social justice crusader(sic) and a leading Zionist, predicted the crash of ’29 because he realised that the bankers were taking all of the possible payoffs and none of the risks and predicted that things would go bust.

In 1932, Brandeis was joined by a second Jewish justice, Benjamin Cardozo. Antisemitism was still very much in ‘evidence’ on the  Supreme Court Bench, notably Justice  James Clark McReynolds, who   refused to speak to Brandeis for three years after his confirmation. During Cardozo’s swearing-in, McReynolds read a newspaper muttering:

 “Another one.”

Cardozo was born  to a distinguished Sephardic Jewish family. His father, Albert Cardozo, resigned as a New York State judge under threat of impeachment after he was discovered to have sold preferments to his nephew and to his patron. He only served three years on the Supreme Court bench.

With the passing of Cardozo, the baton was handed over to Felix Frankfurter. Frankfurter was the first nominee to appear  at his own confirmation hearing. He adopted the position that his public record spoke for itself and  said it would be inappropriate for him to add or subtract from his lengthy public record. He refused to answer questions.

McReynolds earned another racist footnote by refusing to  attend the swearing-in of  Frankfurter, stating:

 “My God, another Jew on the court!”  

He then joined with fellow justices Pierce Butler and Willis Van Devanter in urging President Herbert Hoover not to “afflict the court with another Jew.”  McReynolds was quoted as saying “Huh, it seems that the only way you can get on the Supreme Court these days is to be either the son of a criminal or a Jew, or both.”

Frankfurter had been an advisor to President Franklin D. Roosevelt during the prelude to WWII. Although an immigrant himself, he supported Roosevelt’s  recommendations  that no assistance be given to the Jews of Nazi Europe. However, he believed  in cultural assimilation and in a society based on  meritocracy. He believed that talent and  brains were more important  than race, religion, or class. In 1948, he  hired the Court’s first black law clerk, William Coleman Jr, the same year Apartheid became the official policy in South Africa. He almost crossed paths with a future  SCOTUS, Ruth Ginsburg. She was recommended for a clerkship with  him, and for all his belief in meritocracy, Frankfurter said that he wasn’t ready to hire a woman.

It was the case of  Baker v Carr,  dealing with the redrawing of electoral districts that saw the end of Frankfurter’s career. He was vehement in his objection to bringing the Court into politics, warning that it would lead the Court  down a dangerous road where the Court could one day be called upon to determine winners and losers in national elections. He was so incensed by the final decision that  he suffered a stroke shortly afterwards, which he blamed on the stress of the  case. This stroke resulted in his retirement. The decision also took its toll  on the other justices, none more so than  Justice Charles Evans Whittaker, who struggled to come to a decision one way or the other. Skipping the final vote, he resigned right after the decision and died soon after.

Even though Frankfurter had married a minister’s daughter, he insisted that his funeral include reciting Kaddish, read by his former law clerk, a practicing, orthodox Jew.

“I came into this world a Jew  … I think it is fitting that I should leave as a Jew.”

This allowed for another Jew to find a judicial place on the bench. In 1962 President John F Kennedy appointed his Secretary of Labour, Arthur Goldberg, to the Supreme Court. A distinguishing feature of his tenure was his writing of the Escobedo v. Illinois  judgment establishing the right of a suspect to have a lawyer present during interrogation – setting out the framework for Miranda and the ”Miranda rights” of an arrested suspect.

Only three years after his appointment and upon  the death of Adlai Stevenson, President Johnson asked Goldberg to become the United States ambassador to the United Nations. This allowed Johnson to appoint his good friend Abe Fortas to the “Jewish seat”.

When Chief Justice Earl Warren announced his resignation effective upon the confirmation of his successor,  the frontrunner was Fortas.  Warren had even arranged for an appointment at the White House for Fortas.  Fortas blew his chances  when he appeared before the Senate judiciary committee –  the first time a sitting Justice had ever done so.  The appearance was a disaster.  The vote for his appointment resulted in a filibuster and Fortis requested that his nomination be withdrawn.  Because of revelations arising from and as a result of the confirmation hearings, Fortas resigned his position on the Supreme Court. 

A second nomination for a Jew to be appointed as the chief justice was contemplated by President Johnson, who by this time was running a lame-duck presidency. He proposed that Goldberg accept the position and asked President Richard Nixon to appoint him. Nixon refused. Goldberg subsequently became the president of the  American Jewish Committee.

With the resignation of  Fortas  came the end of  53 years of a Supreme Court “Jewish seat”.  Not until 1993, with Justice Ruth Bader-Ginsburg, would another Jewish justice be appointed to the court.

Ginsberg is probably the most popular of the recent Supreme Court justices.  Noted for her fiery dissents,  she entered into Pop Culture.  She inspired nail art, Halloween costumes, coffee mugs and even a colouring-in book.  She obtained the ultimate acclaim of the youth by inspiring tattoos and that of the moneyed class by being depicted as a bobble-head doll. Talking heads made her a media icon, spitting out witty insults known as “ginsburns”.  Yet, even with her liberal outlook, her love of opera led to an unlikely friendship with Supreme Court Justice Antonin Scalia, a noted conservative. The two opera-lovers even donned powdered wigs and wore 18th century costumes to appear in a stage production of ‘Strauss’.

Ginsberg was raised in an Orthodox home and rebelled when she was excluded from the minyan of mourners after the death of her mother.  She said it felt like women didn’t really count in the Jewish world, which went strongly against her world outlook. But she always acknowledged her Jewishness publicly. In her chambers, there was a large silver mezuzah on her doorpost, and hanging on her wall was an artistic  Hebrew-lettered rendition of “Tzedek, tzedek, tirdof “(Justice, justice shall you pursue). 

While on the bench, Ginsberg was joined by Elena Kagan. Kagan is the only Supreme  Court Justice to have argued with  her family  rabbi and come out ahead. Kagan demanded that she have a real bat mitzvah, not just a party. She wanted a religious bat mitzvah, on a Shabbat morning, where she could read from the Torah. Rabbi Riskin, now Chief Rabbi of Efrat, didn’t agree to having Kagan read from the Torah but she did get to read from the Book of Ruth and her ceremony took place on a Friday night.

There is, of course, the most famous Supreme Court Justice who never was – Merrick Garland, now United States Attorney General. Nominated by President Obama, the Senate Judiciary Committee’s Republican majority refused to conduct the hearings necessary to advance the vote to the Senate at large, and Garland’s nomination expired on January 3, 2017, with the end of the session of Congress, 293 days after it had been submitted to the Senate, handsomely beating the waiting period of Justice Brandeis.

But  my favourite story is about  the retiring Justice Stephen Breyer,  which I recently read in Tablet magazine.

Breyer was  to be attending  a shul service and he was contacted by the rabbi who wanted to give him an Aliyah (the honour accorded to a worshiper of being called up to read an assigned passage from the Torah).  The rabbi asked him for his Hebrew name. He said he wasn’t  sure  and would have to contact his brother to find out what it was.  Breyer then sent a message to the rabbi that his name was Shlomo ben Yitzchak.  At the Shabbat service, the rabbi told him that he had the same name as that of  the foremost commentator on the Bible and Talmud – Rashi.

Sometime later , and while in England,  he was recognised when  attending a Sabbath shul service. The famous judge was  asked if he wanted an Aliyah and what his Hebrew name was.   Breyer, by this time, had forgotten what he had been told was his Hebrew name.  After initially hesitating,  he stated “My name is the same as Rashi” and was called to the Torah.

Over the recent past, it has  become clear, that the Supreme Court has become welcoming for all groups, even if the judiciary hearing proceedings are not. Breyer’s former clerk may take her seat, which has now become a seat for a “black female judge”. It was not long ago, however, that Jews and Blacks fought together against oppression and in furtherance of civil rights. One hopes that this fight will continue on these hallowed benches with the Jewish seats and the Black female seats marching side by side,  pursuing justice.

About the writer:

Craig Snoyman is a practising advocate in South Africa.

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