Lost in the yearlong debate about filling the Supreme Court seat of the late Justice Antonin Scalia was a remarkable fact noteworthy for its lack of public discussion.
If President Barack Obama’s nominee, Merrick Garland, had been approved, four of the court’s nine justices would have been Jewish — even though Jews make up only about 2 percent of the U.S. population.
Garland’s nomination was never considered by the Republican-controlled U.S. Senate and Neil Gorsuch recently was sworn in for that seat. But opposition to Garland was politically motivated, not based on his religion, and there’s already a record three Jews — Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan — on the nation’s highest court.
“This would have been unimaginable in 1916 when [Louis] Brandeis was appointed” as the court’s first Jewish justice, said David Dalin, a rabbi and historian whose latest book is “Jewish Justices of the Supreme Court.”
Dalin, a San Francisco native whose father, William, was the first spiritual leader of the city’s Congregation Ner Tamid, details how Jews were excluded from the Supreme Court for its first 127 years and how virulent anti-Semitism in the legal profession, government and academia nearly derailed Brandeis’ approval.
“Anti-Semitism has declined in the American legal profession,” Dalin said. “One of the themes of this book is that when Ginsburg and Breyer were appointed by Bill Clinton, no mention was made really of their religion. There was no discussion of [Obama appointee] Kagan’s Jewishness,” Dalin said. “It’s an indication of where the American Jewish community has made a tremendous amount of progress over the years.”
Dalin grew up in San Francisco and graduated from UC Berkeley. A former Taube Research Fellow in American History at Stanford University, he now lives in Boca Raton, Florida.
He’ll be a scholar in residence at Burlingame’s Peninsula Temple Sholom this weekend and he is making several appearances in the Bay Area next week to promote his newly released book.
Dalin says in the book that Jews, many of them the descendants of rabbis, have always been attracted to the legal profession, despite the discrimination they faced at law schools and law firms until well into the 20th century.
“Law was an avenue of upward mobility for Jews,” Dalin said in an interview. “So many of the justices, so many Jewish lawyers, were the sons or grandsons of rabbis — who were also legal scholars who argued and essentially wrote opinions on matters of Jewish law.”
In addition to highlighting the accomplishments of the eight Jewish Supreme Court justices, the book also explores questionable parts of their legacies, such as Brandeis and Felix Frankfurter engaging in extrajudicial activities — advising presidents and participating in politics — while on the court. Frankfurter’s refusal to speak up for European Jews during the Holocaust, despite his influence within the administration of President Franklin Roosevelt, is also examined.
Dalin also suggests that, despite criticism of the current Supreme Court as having a political schism, there is nothing today rivaling the personal feuds in the 1940s and ‘50s between the conservative Frankfurter and liberals such as William Douglas and Hugo Black. In fact, one of the closest friendships on the 21st-century Supreme Court was between its most liberal member, Ginsburg, and its most conservative, Scalia.
The book focuses on the legal backgrounds of Jewish justices Kagan (appointed in 2010); Breyer (1994); Ginsburg (1993); Abe Fortas (1965); Arthur Goldberg (1962); Frankfurter (1939); Benjamin Cardozo (1932); and Brandeis (1916) — as well as their key decisions and their connections (or lack thereof) to the Jewish community.
Frankfurter rejected the practice of Judaism and Jewish law firms, while Cardozo was the only Jewish justice to keep kosher at home. Goldberg — whom Dalin called “the most Jewishly involved of the eight” — was the first to hold an annual Passover seder attended by Washington’s elite.
Goldberg, who remained active in the Jewish community while on the Supreme Court, told a synagogue audience in the early ‘60s about a recent visit to his elderly mother. Dalin said Goldberg was waking up when the telephone rang and his mother answered. President John F. Kennedy on the phone.
“Who’s this?” she asked. “This is the president,” Kennedy replied. Goldberg then heard his mother ask: “Nu, president from which shul?”