Ruth Bader Ginsburg’s Jewish legacy
Justice Ruth Bader Ginsburg was shaped by her Jewish heritage. Although not religious, she was steeped in the tradition and found great wisdom in it. Indeed, she introduced me to a quote from parshah Shoftim that is a guiding light: “justice, justice shall you pursue.”
To put this powerful quote into context, consider how Shoftim prescribes a system for independent judges: “[Judges] shall judge people with righteous judgment. You shall not pervert judgment… you shall not accept a bribe, for the bribe will blind the eyes of the wise and make just words crossed. Justice, justice you shall pursue …”
An earlier Jewish Justice, Felix Frankfurter, provided a gloss on the meaning of “justice, justice shall you pursue,” highlighting that justice requires not only just results, but also that “justice must satisfy the appearance of justice.” And that is the goal of an independent judiciary.
When our Founders devised a system for just governance, independent judges were a central part of what they had in mind. The Declaration of Independence highlighted the failure of King George III to respect independent judges as a central basis for the revolution. As a result, our Constitution called for unelected judges with life tenure.
Justice Ginsburg revered our constitutional system, viewing the Framers as motivated by ideals that included the equality commitment provided in the Declaration of Independence and later incorporated into our Constitution by the Fourteenth Amendment. She was convinced, for example, that if Thomas Jefferson could travel to contemporary America, he would approve of the adoption of an equal protection clause as well as an interpretation of that clause as protecting the equal treatment of women, even though they were denied even the basic right to vote until 1919.
To appreciate how Justice Ginsburg understood her role as a Jewish Justice, consider her Sandy Koufax moment. Koufax, as is often celebrated, decided not to pitch Game One of the 1965 World Series because it fell on Yom Kippur. When the Supreme Court was scheduled to sit on Yom Kippur, a day Ginsburg traditionally worked, she decided that, like Sandy Koufax before her, she would not sit with the Court. As a result, Chief Justice Rehnquist changed the schedule and the Court has not sat on Yom Kippur since.
Justice Ginsburg’s joining of the Court was an auspicious moment for American Jews, as it created a link to a prior tradition of Jews serving on the Supreme Court. In a sign of progress for our nation, we no longer thought in terms of a “Jewish seat.” Famously, when President Johnson wanted to appoint his lawyer Abe Fortas to the Court, he concluded that he first needed to entice Justice Arthur Goldberg to leave, as a “Jewish seat” meant no more than one Jew on the Court at a time. By the time of her passing Justice Ginsburg was one of three Jews on the Court. (Justices Stephen Breyer and Elena Kagan are also Jewish.) But after Justice Fortas resigned, no Jew served on the Court until Justice Ginsburg’s appointment.
With Justice Ginsburg’s passing on the eve of Rosh Hashana, we are losing a true tzadik. She was committed to righteousness and to doing her part to create more confidence in our judicial system. She believed in that system and related that “by reasoning together at our conferences and, with more depth and precision, through circulation of, and responses to, draft opinions, we ultimately agree far more often than we divide sharply.” For her, like great Talmudic debates, she worked hard to understand all sides of an issue and approached such discussions with respect, believing that they would lead to better outcomes. That vision of judging is both a Jewish one and an American one. As we honor it, it is also one way in which Justice Ginsburg’s memory will be a blessing.
Phil Weiser is the Colorado Attorney General. He clerked for Ruth Bader Ginsburg.