Pursuing justice from the bench

Pursuing justice from the bench

Emanuel’s tikkun layl Shavuot looks at 8 Jewish Supreme Court members

President Lyndon Johnson, left, confers with Abe Fortas, whom he nominated to the Supreme Court and depended upon as an adviser.
President Lyndon Johnson, left, confers with Abe Fortas, whom he nominated to the Supreme Court and depended upon as an adviser.

When most American Jews think of Shavuot (and to be realistic, outside of the Orthodox and observant Conservative communities, most American Jews don’t), we think of all-night study, the tikkun layl Shavuot, that tends more and more toward the spiritual as the more easily fatigued or bored go home and the night gets darker and then eventually the dawn shows up, all pink and gold.

We think of the Israelites gathered at the foot of Mount Sinai, hearing the lightning and seeing the thunder.

We think of cheesecake. We are fueled by cheesecake. We are driven forward by visions of cheesecake.

But less frequently we think not only of the law that was delivered at Mount Sinai than of the long tradition of law that has followed.

And probably we don’t think very often of American law, of the interplay of Jewish and American history that has produced many great American Jewish legal minds. We probably don’t often spend tikkun layl Shavuot talking about the Supreme Court. But Rabbi Joseph Prouser of Temple Emanuel of North Jersey, who is both a Conservative rabbi and a lifelong student of American history, has made that connection.

He has asked eight of his congregants — some of them lawyers, some academics, all interested and interesting — to prepare a short talk on each of the eight Jewish Supreme Court justices, from Louis Brandeis to Elena Kagan. (See box.)

“It is remarkable that on a Supreme Court with nine justices, three of them are Jewish,” Rabbi Prouser said. “That’s something that the founding fathers never foresaw, but that reflects their general approach to the country’s diversity.”

And there’s another reason to focus on the Supreme Court right now. “The country’s attention is increasingly focused on the court,” he said. “People are looking at it with hope for balance and reason and a sense of devotion to the vison of democracy that it is charged to uphold.”

He’ll intersperse teaching talmudic texts about the Sanhedrin, the rabbinic court, between discussions of the Supreme Court justices, Rabbi Prouser said. “I’ll look at comparisons between the two legal systems — how do they fill open seats? What’s the significance of a divided system?

“I will be teaching about death penalty cases. When there was a death penalty case, a unanimous vote for conviction would be written as an acquittal,” he said. “That meant that something would be wrong. You could not have that. Something must have been flawed if everyone could agree that someone needed to die.”

Here are a few stories about two of the eight justices the panel will look at.

Mike Fisch of Wayne, a chemist by day, will talk about the second Jewish justice, Benjamin Cardozo, on the night of Shavuot.

Justice Benjamin Cardozo

Cardozo was born into the Sephardic aristocracy in New York in 1870, Mr. Fisch said; his father, Albert Cardozo, was a New York State Supreme Court judge, who ran for his office backed by Tammany Hall and one of its founders, Fernando Wood. Those were hugely powerful forces in New York City; to be backed by them was a major big deal. He had a meteoric career until he was caught up in a scandal; the day before the New York State Assembly was to come out with a report naming him and accusing him of corruption, he resigned. His son was 2 years old; when Benjamin was 15, his father died. “I don’t know, but I suspect that he went into law to clear the family name,” Mr. Fisch said.

His family on his mother’s side was even more illustrious. His mother, amazingly named Rebecca Washington Nathan Cardozo, was a Nathan, and that family was entwined with the Seixases. His uncle was a founder of the New York Stock Exchange, and “his great grandfather, his grandfather, and two of his uncles were presidents of Shearith Israel,” also known as the Spanish Portuguese Synagogue. That shul now has a grand, lovely building on Manhattan’s Central Park West, but when it began, in 1654, it was downtown. It is the oldest congregation in the country, and today it flourishes. “He came from a very prominent family,” Mr. Fisch understated.

Like many of the men in his family, Cardozo was a lifelong bachelor. “His mother was one of 15 children, and two thirds of her brothers never married,” Mr. Fisch said. “They were focused on careers.” He lived with his sister, “and he was the only one of the Jewish Supreme Court Justices who had a kosher home as an adult. He was not observant, but he was very culturally attached.

“He once said in his private correspondence that he was a heathen, but he actually got his first elected office because they” — the people charged with selecting a nominee — “wanted a Jew. The first guy they recommended was into Reform Judaism and Ethical Culture, and they said no. They said they needed ‘a real Jew.’’’

Cardozo did not go to school until he entered Columbia College at 15; like others of his social class, he was tutored at home. His tutor for Columbia’s entrance exams was the author Horatio Alger. He went to law school at Columbia; it was a two-year program when he entered, but another year was added during his time as a student there. In high-minded protest (or perhaps in high dudgeon), he left after two years (and after having earned a master’s degree in philosophy at the same time). When he turned 21, and thus was eligible to take the bar exam, he took it and passed it. “He was incredible,” Mr. Fisch said.

He remained active in Shearith Israel, although he continued his lack of observance. “When he was 25, he argued in the shul against mixed seating, on the grounds that it violated the shul’s constitution,” Mr. Fisch said. “It was voted down by a large margin, I think something like 75 to 7.” He also hired many Jewish law clerks, he added.

Cardozo’s grandfather’s brother-in-law, Gershon Seixas, was “the first Jewish trustee of Columbia College,” Mr. Fisch said. “He finished his term in 1814. And Columbia didn’t have another Jewish trustee again until Cardozo, in 1928.” There’s a lot of Jewish history in his story.

Cardozo sat in the Supreme Court seat previously held by Oliver Wendell Holmes, “who was of course a giant, but it was said that in Cardozo they had found a proper successor,” Mr. Fisch said. His tenure on the court was short — he was confirmed in 1932, and his position was ended by his death, at 68, in 1938. Still, “he is considered generally as one of the top 10 Supreme Court Justices.”

Peter Safirstein of Ridgewood is an attorney; “I’m a litigator, so the topics of Supreme Court jurisprudence, of the justices of the Supreme Court, and of the Jewish justices in particular are really interesting to me.”

He’s now in private practice, but he’s worked for the SEC and as a federal prosecutor under President Ronald Reagan, with the Southern District of New York and Florida’s Southern District as well.

He’ll be talking about Abe Fortas. “I think Fortas is fascinating,” he said; for one thing, “He is the answer to an absolutely fantastic trivia question, which is ‘Has any Jewish person ever been nominated to be the chief justice of the United States?’ And the answer is yes. It’s Abe Fortas.”

Of course there haven’t been any actual as opposed to nominated chief justices; the nomination was the start of the process that ended in his resignation.

Abe Fortas, born in 1910, did not take the typical path to the Supreme Court. Although it was different for earlier justices, by Fortas’s time it was clear that the way to the Supreme Court was through the appellate court, or perhaps a law school. “Fortas came right out of private practice,” Mr. Safirstein said. “His real claims to fame were that he was a brilliant lawyer, and a very close if not the closest adviser to President Johnson.” (Lyndon Baines Johnson, that is.)

“He was not interested in becoming a Supreme Court justice.

“Johnson had offered him a government job when Kennedy was assassinated. Kennedy’s attorney general was his brother, Bobby Kennedy, and when Johnson became president, Kennedy resigned to run for the Senate.

“Fortas would have been the first Jewish attorney general. But he was doing very well at his law firm, and neither he nor his wife, who also was a partner in the firm — she was either the first or almost the first woman to make partner — wanted his salary cut.”

Fortas and his wife, Carolyn Agger, who was not Jewish, met at Yale, where they both went to law school. They did not have children. “She was furious at Johnson,” Mr. Safirstein said. The Johnsons and the Fortases had been friends, and eventually they became friends again, “but for a while she refused to talk to him.”

Fortas’s work before he became a justice — some of it pro bono — is legendary. Chief Justice Earl Warren appointed Fortas, then in private practice, to defend Clarence Gideon before the Supreme Court as he fought for and won the right to legal representation. The journalist Anthony Lewis turned the story into the book and movie “Gideon’s Trumpet”; Henry Fonda played Gideon and Jose Ferrer was Abe Fortas.

Fortas “was raised Orthodox in Tennessee, but when he grew older, he became unobservant,” Mr. Safirstein said. “He did not go to synagogue. But I think that his abiding sense of social justice, of his advocacy for social causes, of the rights of defendants, was because he was Jewish.” It wasn’t accidental that he was appointed to defend Gideon. Those were the kinds of pro bono cases he was asked to take on. “Fortas is known for his jurisprudence, but less for his work on the Supreme Court than for arguing before it,” Mr. Safirstein added.

After he was confirmed as a justice, “Fortas takes the Jewish seat from Arthur Goldberg, and he goes on the Supreme Court, which is now the famous Warren court, and he supports Warren and liberal jurisprudence and the rights of criminal defendants,” he said.

“And then politics kicks in. It’s 1968, and Chief Justice Earl Warren tells Johnson that he is retiring, and Johnson nominates Abe Fortas to succeed him. But politics have changed dramatically. It is a different era.” Johnson is hobbled by the disaster in Vietnam and therefore vulnerable, and “Republicans think that Nixon will win,” so, for the first time, they have a Senate hearing before confirming the nominee, and the hearing brings out the fact that Fortas continued to advise Johnson. That was not acceptable.

Fortas withdrew his candidacy, but soon questions about his finances ensnared him. He resigned in 1969, went back to private practice, and died in 1982.

Fortas’s resignation “ended something like 53 years of the Jewish seat,” Mr. Safirstein said. “Nixon did not appoint a Jewish person. The next Jewish person was appointed by Clinton — Ruth Bader Ginsburg.”

That’s just two of the eight Jewish justices. The panel will discuss all of them. Besides Abe Fortas, and Benjamin Cardozo, the others are Louis Brandeis, Arthur Golderg, Ruth Bader Ginsburg, Elena Kagan, Felix Frankfurter, and Stephen Breyer.

Rabbi Prouser underscores the connection between law and religion, to which it points.

In 1838, he said, Abraham Lincoln talked about it. Rabbi Prouser quotes Lincoln: “Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap — let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs; — let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice.

“And, in short, let it become the political religion of the nation…”

Who: Rabbi Joseph Prouser

What: Will present a tikkun layl Shavuot focusing on the eight Jewish Supreme Court Justices

When: On Saturday, June 8, at 7 p.m.

Where: At Temple Emanuel of North Jersey,
558 High Mountain Road, Franklin Lakes

How much: Free and open to the community

And also: A dairy buffet will be open throughout the program.

For more information: Call (201) 560-0200
or to go www.tenjfl.org

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