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The ‘Jewish Seat’ on the Supreme Court

Reviewing: “Jewish Justices of the Supreme Court,” by David Dalin. Brandeis Series in American Jewish History, Culture, and Life, Brandeis. Hardcover, 384 pages, 2017. ISBN-10: 1-6116-8238-X.

I came across this very interesting book about the eight Jewish Supreme Court justices: Louis Brandeis, Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, Abe Fortas, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. The book’s theme centers around how much the country has changed over the years. It was a big issue in 1916 when Woodrow Wilson first wanted to appoint a Jewish Supreme Court Justice (Brandeis).

Eventually, there became an informal rule that there should be one “Jewish seat” on the court. But now there are three Jews on the court and their religion is barely an issue.

I will limit my discussions here to the lives of Brandeis and Goldberg.

Brandeis grew up in Kentucky and had little to do with Judaism in his youth. His parents did not belong to a synagogue or observe any Jewish holidays. (Interestingly, Brandeis’ ancestors were leaders in the heretical Jacob Frank movement!) Brandeis went to Harvard Law School and became a successful lawyer in Boston. In 1912, he met Woodrow Wilson and ended up becoming a close advisor to him on his Presidential campaign that year. When an opening on the court arose in 1916, Wilson appointed Brandeis.

Brandeis reconnected to Judaism first in 1910 when he was involved in mediating a strike of New York City garment workers. This brought him into contact with many Jewish immigrants from Eastern Europe. He was deeply impressed with their values and commitment to social justice and felt a kinship towards them.

In his youth in Kentucky, Brandeis had an uncle, Lewis Dembitz, who was Orthodox. Although Dembitz heavily influenced Brandeis in many ways, the influence did not extend to the sphere of religion. But in 1912, a crucial event took place. Brandeis met Jacob de Haas, a leading American Zionist who had worked with Herzl. De Haas told Brandeis that Dembitz had been involved with Zionism. This piqued Brandeis’ interest and De Haas taught an eager Brandeis all about Herzl and early Zionism. Brandeis also chanced to meet the noted Zionist activist Aaron Aaronsohn, who was doing novel agricultural work in Palestine. Brandeis was greatly impressed by him as well.

By 1914, Brandeis had assumed the leadership position in the American Zionist movement. He held this position for seven years, and he helped win Wilson’s support for the Balfour Declaration of 1917. Brandeis remained involved in the Zionist movement until his death in 1941.

One of Brandeis’ main accomplishments was his ability to market Zionism to American Jews. Jews were afraid that being Zionist would subject them to the accusation of dual loyalty. But Brandeis articulated the position that by being a Zionist, a Jew would be a better American.

Arthur Goldberg was on the court for less than three years. But his story is very interesting. He grew up in Chicago and became a labor lawyer. He helped engineer the historic merger of the AFL with the CIO in 1955. In 1961, JFK appointed him Secretary of Labor. Then, in 1962, JFK appointed him to the court. He was appointed to fill the “Jewish seat,” as Frankfurter had retired. Kennedy was reluctant to lose him as a Cabinet member and hoped he would turn down the offer. But Goldberg had dreamed of serving on the Supreme Court since law school, so he quickly accepted.

But in 1965, when the US ambassador to the UN died, LBJ wanted Goldberg to take his place. (LBJ’s motivation was to open up a spot on the court for his longtime friend and advisor Abe Fortas.) But being a Supreme Court justice is a lifetime position. It is not usually given up. Nevertheless, LBJ put enough pressure on Goldberg to get him to agree to leave the court and accept the ambassadorship. As US ambassador to the UN, Goldberg ended up being involved in the drafting of one of the most important documents of the 20th century: UN Resolution 242, passed Nov. 22, 1967, a few months after the June 1967 Six-Day War. This is the document with the famous omission of the word “the”; Israel is required to withdraw from “territories” but not from “the territories.” Goldberg is always quoted on this subject for his explanation that the omission of “the” in the English version was deliberate, as it was not imagined that Israel would withdraw from all the territories.

But what happened to Goldberg afterwards? In 1968, he resigned the US ambassadorship position. In 1970, he ran for governor of NY against Nelson Rockefeller who was seeking his fourth term, but Goldberg lost badly. He returned to Washington to practice law. Although he had many accomplishments thereafter, he never achieved public positions as high as he had before. (One of his clients in his legal practice was the baseball player Curt Flood, who brought a famous antitrust case against Major League Baseball.)

Even allowing for LBJ’s talents of persuasion, historians remain perplexed by Goldberg’s willingness to leave the court for a short-term ambassadorship post. One theory is that Goldberg very much wanted the war in Vietnam to end and thought that in the new position, he would have more influence in that regard. Others suggest that he believed that Johnson would now be in his debt and would feel obligated to reappoint him to the court later. Others suggest that Goldberg saw the UN position as a stepping stone to a future vice presidential position. In any event, there is little question that Goldberg later regretted his resignation from the court.

A few more biographical tidbits: He was a Zionist from his youth and attended Chicago’s Zionist-oriented Theodore Herzl Elementary School. He later befriended Golda Meir, and one time asked one of his law clerks going on a trip to Israel to sneak some Chesterfield cigarettes past her security guards her so that she could enjoy them. Her doctors had prohibited them.

Although he did not keep kosher, he was sensitive to those who did. When he invited his law clerk, Alan Dershowitz (who was Orthodox at that time), to his seder, Goldberg made sure that the entire dinner was provided by a kosher caterer.

One time, while he was at his mother’s house, the phone rang for him and his mother answered, “Who’s this?” The caller replied: “This is the President.” His mother replied: “Nu, president from which shul?”

Finally, a great story is the reaction of his mother-in-law to his appointment to the court. She was asked: “Wasn’t it wonderful about Arthur?” She replied: “Wonderful? Yes, but who cares about Arthur? Everybody knows something like this could happen to him, but that it should happen to me, that’s more wonderful. That I’m the mother-in law of a Supreme Court Justice.”

I mentioned Supreme Court justice Fortas briefly above. He enjoyed a lucrative career as a lawyer in Washington and was a longtime friend and advisor to LBJ. A great story is how LBJ got him on the court in 1965, despite Fortas’ reluctance because the position would cut his salary by over $150,000. LBJ wanted him on the court because he was afraid that some of his legislation might be held unconstitutional. But Fortas and his wife continually refused LBJ’s pressuring.

Finally, LBJ used a trick to get what he wanted. He invited Fortas to a press conference that he was holding on the Vietnam War and halfway down the hall told Fortas that at this press conference, he was also going to announce Fortas’ appointment. He also added: “I am sending all these boys to Vietnam. They’re giving their life to their country and you can do no less.” By this method, he forced Fortas to accept the Supreme Court appointment. Fortas’ wife was furious, as they had been leading an expensive lifestyle in Washington. The story of this Jewish Supreme Court Justice does not end well. In 1969, Fortas had to resign due to ethical questions about money he was earning on the side.

Finally, the book includes the famous story of Justice Kagan’s bat mitzvah. Her family attended Lincoln Square Synagogue and the 12-year-old, highly confident Hebrew school student told Rabbi Riskin that she wanted to celebrate her bat mitzvah there. At this time, 1972, the bat mitzvah ritual was not typically done in Orthodox shuls, and Kagan wanted to read from the Torah like the boys did. A compromise was reached, in which the bat mitzvah would take place on a Friday night and she would read from the book of Ruth. So she had the first formal bat mitzvah at Lincoln Square Synagogue. Asked about it years later, Rabbi Riskin said “We crafted a lovely service, but I don’t think I satisfied her completely.”

By Mitchell First

 Mitchell First is a personal injury attorney and Jewish history scholar. His most recent book is “Esther Unmasked: Solving Eleven Mysteries of the Jewish Holidays and Liturgy.” He can be reached at 

[email protected].

 

For more articles by Mitchell First, and information on his books, please visit his website at rootsandrituals.org.

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