That Lonely Jewish Seat on the Supreme Court

Here’s a joke: “A Jew, a Black and a Hispanic walk into a bar . . . association . . . ”

It’s not really a joke, but rather a colorful way of describing the composition of liberal Justices on the Supreme Court, as embodied by Madame Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, in order of seniority.

The black robes, as it turns out, are mere uniforms for when the Court is in session. Compared to the first 233 years of its existence, when it was largely an all-white male institution where even a single ethnic-American was a rare sighting, nowadays the nine individuals who wear those robes are far less uniform—at least in appearance.

Nearly half the Court is comprised of women. Amy Coney Barrett, albeit ideologically not in lockstep with her sisters, shares the same gender with the liberal bloc. Samuel Alito is the son of an Italian immigrant father.

Two African-American Justices are now sitting on the High Court at the same time, in Clarence Thomas and Jackson. America’s immutable, insurmountable racism is a fashionable slander these days. But the pairing of Thomas and Jackson is a laudable example of this nation’s racial progress. Admittedly, melanin may be the only thing these two have in common.

The only area where there is seemingly great uniformity is that, with the exception of Barrett, all of them attended either Harvard or Yale, and each had served as federal appeals court judges, most from the D.C. Circuit. (The Constitution does not require a Supreme Court Justice to first serve as a judge of any kind, or, for that matter, to even possess a law degree. So where are the novelists, violinists, farmers, schoolteachers, and even former elected officials who could ably serve on the Supreme Court? This deficiency in diversity is never mentioned during Supreme Court confirmation hearings.)

Despite the Court’s snazzier pluralistic look, it suffers greatly from low public opinion and ethical lapses that place into question the judgment of some of these Justices. And as a sign of our dizzyingly divisive times, there is skepticism whether the Justices are ideologically independent. Many believe that they are nothing more than accomplices to the political patrons who elevated them to the High Court.

After overturning Roe v. Wade last Term, and reversing Affirmative Action and favoring free speech over gay rights this most recent one, there is a gnawing feeling among liberals that the new 6-3 conservative supermajority will continue to upend the legal precedents that many had assumed were long enshrined as American common law.

One thing about the configuration of the Supreme Court not being discussed is its dwindling Jewish presence. With the death of Ruth Bader Ginsburg, and the retirement of Steven Breyer, Kagan is now the lone Jewish Justice. Imagine: Had President Barack Obama managed to get his final Supreme Court Justice confirmed by the Republican-controlled Senate, his choice, Merrick Garland, who, today, is President Joe Biden’s Attorney General, would have placed four Jewish Justices on the Court—all serving at the same time. Not quite a minyan, but four out of nine would have fed the conspiratorial fantasies of all those waving dog-eared copies of The Protocols of the Elders of Zion.

It also would have surprised those who didn’t believe in canards about Jewish control. Generations of Court watchers, beginning in 1916 with the appointment of Louis Brandeis, had gotten used to seeing at least one Jewish-American occupy, informally, the “Jewish Seat on the Supreme Court.”

Four Jewish Justices serving together is a whole bench!

After Brandeis came Justices Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, and Abe Fortas, a streak that ended in 1967. It wasn’t again until the Bill Clinton presidency, beginning in 1993, when Ginsburg and Breyer resumed, and expanded, the arithmetic and influence of that lone Jewish seat.

Each marked their tenure in different and in some respects, idiosyncratic ways. Brandeis, a nonreligious Jew from Kentucky who was a connoisseur of ham, was an early Zionist and champion of the Balfour Declaration. Cardozo, a Sephardic Jew, had been the chief judge of the highest court in New York and was credited with establishing the principles of modern-day contract and tort law.

Frankfurter was an informal advisor to President Franklin Roosevelt and friend to State Department officials. Yet, he failed to sway Roosevelt to rescue the doomed Jews of Nazi Europe, or to convince the State Department to bomb the tracks leading to Auschwitz. (Years later, Frankfurter had an opportunity to hire Ginsburg as a law clerk, but declined to hand such an important task to a woman—Jewish or otherwise.)

Goldberg stepped down early in order to become U.S. Ambassador to the United Nations. Before becoming a Justice, Fortas argued the case that led to the constitutional right to counsel. Once on the Court, he was nearly appointed Chief Justice, but ultimately resigned on account of a financial impropriety in 1969.

Ginsburg, with the look of a Jewish grandmother, improbably assumed cult-figure status as the “Notorious RBG.” Her friendship with conservative Justice Antonin Scalia proved that implacable ideological differences are no reason not to enjoy one’s company—a disposition that is very much in short supply, these days.

Don’t be surprised if Kagan remains the lone Jewish Justice for some time, clasping that mythical Jewish seat while Chinese- and Indian-Americans, along with other minority groups and gender affiliations, represent their own identities in claiming seats on the Supreme Court.

Such is the state of identity politics these days that a “Jewish seat” on the Supreme Court is indistinguishable from any other “white-privileged seat.” Kagan may be a Jewish woman from New York City, but that’s a categorically unremarkable identity these days, one that surely doesn’t receive a ribbon in the woke sweepstakes.

It’s a good thing Kagan is young. If having an American Jew on the Supreme Court is important to you, then pray for her continued health. You may not see her tribal type anytime soon.

Thane Rosenbaum is a novelist, essayist, law professor and Distinguished University Professor at Touro University, where he directs the Forum on Life, Culture & Society. He is the legal analyst for CBS News Radio. His most recent book is titled “Saving Free Speech … From Itself.”