In the wake of a Trump triumph, will the Supreme Court still favour the underdog?

It’s not just the question of who will be president that hangs in the stake as the American people prepare to vote this month. The balance of the US’s Supreme Court rests on the decision, a powerful institution where Jews have long played a crucial role.

In the second presidential debate, both candidates weighed in on the court’s future. Trump said he wants to appoint a clone of the ultra-conservative Antonin Scalia, Hillary prefers justices with broad experience, with very different views from Scalia on issues like marriage equality, reproductive rights and the separation of church and state. This implies that she is interested in appointing a judge from a diverse background, perhaps Jewish justice Merrick Garland, nominated by Barack Obama to succeed Scalia but blocked so far by the Senate.

Trump’s leading candidates are all in their fifties, and all are all rock-ribbed conservatives. Pryor, a devout Catholic, is quoted as saying that Roe v. Wade is “the worst abomination in the history of constitutional law;” Gruender held in a leading case that federal law did not give female employees the right to insurance coverage for contraception; and Sykes’ former husband is a conservative talk show host.

The Supreme Court of the United States has been since 1803 the last word on the meaning of the Constitution. It enjoys tremendous political power in the American system of self-government since it can strike down the acts of Congress or of the President or the states as unconstitutional.

Identity politics has been important over the years in the selection of Justices. While 89 of the 112 Justices appointed since 1789 have been White Anglo Saxon Protestants, the Court today is 100% religious minority. The eight Justices who have been sitting since the death of conservative Antonin Scalia last February consist of four liberals and four conservatives. Three are Jews, the rest Catholics.

The Court has used its power to end school segregation, vindicate abortion rights, and lately to uphold a personal right to have a handgun in your home, to marry someone of the same sex, and to say a prayer at town meetings, weighing in on the side of guns, gays and God. Justices are unelected. The President appoints them with the advice and consent of the Senate.
And, they hold office during their “good behaviour,” which they have interpreted to mean for life. This assures the independence of the judiciary from partisan pressures.

The first Jew to serve on the United States Supreme Court was Louis D. Brandeis, nominated by President Woodrow Wilson in 1916, a nomination which touched off a firestorm. Brandeis was viewed as a progressive, a reformer, and a lawyer of questionable character. The subtext of the objection of course was that Brandeis was a Jew.

Five months of confirmation hearings ensued before the United States Senate. Seven past presidents of the American Bar Association, including former US President William Howard Taft, who found the Brandeis nomination “laughable,” signed a letter to the Senate Judiciary calling Brandeis unfit to serve on the Supreme Court. A petition signed by 55 Bostonians accused Brandeis of lacking “judicial temperament and capacity.”

Educated in private and public schools in his native Louisville, Kentucky, Brandeis studied in Europe for several years, but did not attend college. At age 18, he entered Harvard Law School where he achieved one of the best academic record in the law school’s history.

Upon graduation, Brandeis, a committed Zionist, established a reputation as a “people’s lawyer,” and took up the cause of the little man against the rich and powerful. He became a political ally of Wilson, and crafted an economic program of “regulated competition.” The Senate confirmed Brandeis by a vote of 47 to 22 and he is generally acknowledged to be one of the greatest Justices ever to serve on the Court.

Following the Brandeis appointment there arose in the minds of American Presidents the existence of a Jewish seat on the Court. When Homes retired in 1932 at age 90, President Herbert Hoover hesitated to appoint the iconic jurist Benjamin Cardozo to join Brandeis on the bench, as there would then be two Jewish Justices sitting at once. He eventually bowed to overwhelming pressure from law school deans, judges and the organized Bar and sent Cardozo’s name to the Senate. When
Cardozo died in 1938, Franklin D. Roosevelt in January 1939 named Harvard Professor Felix Frankfurter, a proud Anglophile, to succeed to succeed him, but only after he knew that Brandeis would retire the next month. Frankfurter was confirmed by voice vote in the Senate.

The unbroken tradition of the Jewish seat continued until 1969. Arthur Goldberg succeeded Frankfurter; Abe Fortas succeeded Goldberg. But when Fortas resigned in disgrace, Nixon appointed Harry Blackmun, a Methodist, to succeed him. On the White House tapes when Nixon’s Attorney General asked the President when he would appoint a Jewish Justice, Nixon replied, “When I’m dead.”

For 24 years from 1969 to 1993, there were no Jews on the Supreme Court until the appointment of Ruth Bader Ginsburg. Breyer, and Kagan followed. If Merrick Garland is ever confirmed, there will be four Jews on the Court. If Trump is elected, of course, the Garland nomination will die on the vine, and Scalia’s successor will almost certainly be a non-Jew.

Does a Justice’s religion make a difference in how they judge? Judge Richard Posner, a distinguished federal appellate judge in Illinois, argues that their Catholicism has influenced conservative Justices Scalia, Roberts, and Thomas, but Kennedy and Sotomayor less so. He says that the three Jewish Justices, Ginsburg, Breyer and Kagan have not been “influenced by Judaism in their judicial work.”

Ginsburg differs. As she puts it: “Jewish Justices have viewed the law as the protector of the oppressed minority, the loner.” For this reason, they might empathise more with the criminal defendant as Kafka did in The Trial.

Felix Frankfurter did not see it quite this way. Writing in dissent, he famously said that:

'One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution… '

'But, as judges, we are neither Jew nor Gentile, neither Catholic nor agnostic…. As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard.'

Ginsburg is more notable as a champion of women’s than Jewish issues. Her life as an advocate for women’s rights will be
depicted in a forthcoming biopic called On the Basis of Sex starring the Israeli-born actress, Natalie Portman.

James D. Zirin, a lawyer, is the author of the just released book Supremely Partisan—How Raw Politics Tips the Scales in the United States Supreme Court