New book by alumnus examines eight Jewish justices on U.S. Supreme Court
By Brian Klotz
When President Woodrow Wilson nominated Louis Brandeis to the United States Supreme Court in 1916, it set off a wave of antisemitic resistance and one of the most contentious Senate confirmation battles in history. Today, three of the nine Justices are Jewish.
“By the time of Ruth Bader Ginsburg and Stephen Breyer’s appointments, their religion was virtually a non-issue,” explains historian and rabbi David Dalin, MA’76, PhD’77, P’11.
In his latest book, “Jewish Justices of the Supreme Court: From Brandeis to Kagan,” Dalin profiles the eight individuals to hold that distinction, including their relationships with the presidents who appointed them, their legislative legacies, and what role, if any, antisemitism played in their ascent in the legal profession.
As Dalin details, Brandeis’ nomination faced “a tremendous amount of antisemitism.” Harvard president A. Lawrence Lowell, for example, immediately gathered a petition in opposition. Lowell was a known antisemite who would later attain notoriety for attempting to establish a quota limiting Jewish admissions to Harvard.
During the tenures of Louis Brandeis, and later Benjamin Cardozo, fellow Justice James McReynolds made his antipathy clear. No official portrait of the Court in 1924 exists because McReynolds refused to sit next to Brandeis as protocol required. Prior to Cardozo’s nomination, McReynolds urged President Herbert Hoover not “to afflict the Court with another Jew.” When his Jewish colleagues were speaking, McReynolds would routinely bury his face in a newspaper, and upon Brandeis’ resignation, he would not sign the traditional letter of collegial farewell.
Despite the obstacles they had to overcome, Dalin explains, the Jewish justices have left an enduring legacy. Although in the liberal minority at the time, Brandeis’ dissents have proven greatly influential. In particular, Dalin notes his dissenting opinion in Olmstead v. United States, which outlined an individual’s right to privacy and “introduced a whole new chapter in American law.”
Dalin found that while the Jewish justices generally shared a common thread of a progressive ideology, many were not particularly observant of their faith. For example, while Justice Felix Frankfurter grew up in an Orthodox household in Austria, Dalin relates, “he probably never set foot in a synagogue in his adult life, except to give the occasional lecture.” Likewise, Justice Brandeis greatly enjoyed the hams his brother would send from Louisville, and in one letter reassured his young daughters that “the Christmas tree and Santa Claus are very anxious to see you.” Later in life, however, Brandeis became an impassioned leader of the Zionist movement.
Fittingly, the genesis of the book came in a discussion with Stephen Whitfield, PhD’72, a fellow historian and the just-retired Max Richter Professor of American Civilization at Brandeis. Dalin was presenting on the topic of Jews and baseball at the Association for Jewish Studies and knew that Whitfield would be interested, so the two met for lunch. Conversations of Hank Greenberg eventually turned to talk of Jewish Supreme Court justices, and Dalin knew what his next project would be.
Dalin is particularly proud that “Jewish Justices of the Supreme Court” was published by Brandeis University Press – not just for its connection to the first Jewish justice and Dalin’s own alma mater, but because it would be edited by his close friend and colleague, Jonathan Sarna ’75, MA’75, the Joseph H. and Belle R. Braun Professor of American Jewish History at Brandeis.
“Jonathan has read or commented on everything I have written in the past 35 years,” says Dalin.
Dalin is the author, co-author or editor of 11 previous books, including 1997’s “Religion and State in the American Jewish Experience,” which he co-authored with Sarna. Dalin prides himself on writing books that are readable, informative and entertaining for a general audience, rather than just for historians and academics. Among many other roles, Dalin has been a visiting professor at George Washington University and the Jewish Theological Seminary, as well as the Taube Research Fellow in American History at Stanford University.
Dalin, who has long been interested in American Jewish history and politics, obtained his BA from the University of California, Berkeley before coming to Brandeis for his master’s and doctorate in politics. After graduation, he went on to receive his rabbinic ordination and a second master’s from the Jewish Theological Seminary. Dalin’s daughter, Simona, graduated from Brandeis in 2011 with a double major in math and biology, and is now pursuing her doctorate at MIT.
Reflecting on “Jewish Justices of the Supreme Court,” Dalin explains that in addition to chronicling the justices’ careers, he made an effort to humanize them, highlighting some aspects of their personal lives that readers may not be familiar with. One particularly interesting relationship, he notes, is the unexpected friendship between Justice Ginsburg and the late Justice Antonin Scalia. Despite being on polar opposites of the political spectrum, the two bonded over a love of opera. Dalin's book contains a famed photo of the pair appearing together in white powdered wigs and eighteenth-century costumes as "extras" in the Washington National Opera's opening-night production of one of Richard Strauss's operas in 1994.
“In a time like ours, when politics are so divisive,” says Dalin, “I found their three-decade-long friendship admirable.”
Brandeis Universty Press is proud to offer a special 35 percent discount to all members of the Brandeis community when they purchase “Jewish Justices of the Supreme Court” from UPNE.com. To redeem, enter the code WW91 at checkout.