On Jan. 26, 1916, the first Jewish justice was nominated to the United States Supreme Court by President Woodrow Wilson. Kentucky-born Louis Brandeis served on the court for 23 years as the first in a long line of Jewish Supreme Court justices in America. What many don’t realize, however, is that Brandeis wasn’t the first Jew to be offered a Supreme Court appointment. Judah P. Benjamin, later Secretary of State of the Confederacy, was offered an appointment to the Supreme Court by President Millard Fillmore, but turned down the offer.
On the evening of Dec. 19, local attorney Nathan Lewin sat in conversation with Dr. David G. Dalin, author of “Jewish Justices of the Supreme Court: From Brandeis to Kagan,” to discuss the history of Jewish justices and their impact. The event was hosted by Beth Sholom Congregation in Potomac, Maryland.
Dalin’s book focuses on “lives, legal careers, and legacies” of the eight Jewish Supreme Court justices, and brings to light some unknown history about these luminaries. The discussion between Lewin and Dalin did the same; they spent much of their time together swapping stories about the different justices and the justices’ experiences as both Supreme Court justices and as Jews.
During the event, Lewin and Dalin shared how Judaism played a role in each justice’s life, beginning with Brandeis. Considering that he is known as the first Jewish justice, Brandeis had a surprisingly removed relationship from Jewish observance. One of the many stories Dalin shared from his book was how, in addition to not keeping the halachot (Jewish laws) of Shabbat and kashrut, Brandeis would have his brother in Louisville, Kentucky, send ham to his Massachusetts home.
While Justice Elena Kagan went to Hebrew school and had a bat mitzvah, there has yet to be a Shabbat-observant justice on the Supreme Court.
“Shabbat observance interferes with work ability” — Lewin recalled this advice, given to him and fellow Harvard Law School graduate Alan Dershowitz when they applied for jobs after graduating. Both Lewin and Dershowitz graduated at the top of their classes, so it was clear that Shabbat observance had not interfered at all with their ability to work hard and perform well, yet prospective bosses viewed their religious observance as a deal-breaker. When law firms hired Jews, the jobs went to those who had a Jewish cultural identity but were not observant.
This cultural identity, according to both Lewin and Dalin, has played an interesting role in Jewish justices’ perspective on cases regarding religious questions and Zionist issues. While all of the eight Jewish justices had pride in their Jewish heritage, only some of them had an understanding and appreciation of the importance of religion and religious observance.
Justice Felix Frankfurter, for instance, never allowed his Jewish identity to sway his position on issues of Jewish observance. He voted against constitutional protection for Shabbat observers who had to close their stores on both Saturdays (for religious observance) and Sundays (because of Sunday-closing laws). Frankfurter’s Shabbat-observant law clerk had to sleep in the justice’s office Friday nights to be available to the justice for a meeting with Frankfurter on Saturdays after the Court’s conference.
Listening to Lewin and Dalin talk about the different Jewish justices, I couldn’t stop thinking about contemporary issues of religious freedom and protection of religious practices. Yes, it is incredible that there have been eight Jewish justices on the bench of America’s most esteemed court, but is that all? Does the Jewish heritage of eight justices mean that Jews have triumphed over all anti-Semitic sentiments and become accepted members of American society? Or is it a screen blinding us, the Jewish community, from fighting for an even brighter, more accepted future?
The goal should be a world where how many Jewish justices there have been doesn’t matter, because Jews and non-Jews alike do not care about the religious or ethnic affiliation of those who occupy the bench. This doesn’t mean that we may not be proud of the great progress that has been made; it only means that we should not allow our progress to become a shortcoming.
By Ayelette Halbfinger
Ayelette Halbfinger is a Washington, D.C., native and a senior at the Charles E. Smith Jewish Day School (CESJDS) in Rockville, Maryland. She is editor in chief of her school yearbook, Dimensions, and the school’s Hebrew literary magazine, Loa Ha’ari, and she also contributes to the school newspaper, The Lion’s Tale.