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Justice, Guardian of Liberty

In 1993, the U.S. Supreme Court Historical Society sponsored a lecture series on the five Jewish Justices from Louis D. Brandeis to Abe Fortas. Absent from the series was an account of the man who might have preceded Brandeis by some 63 years as the first Jewish member of the Supreme Court, Judah P. Benjamin.

Born in 1811 in St. Croix in the Virgin Islands, the son of Sephardic Jews, Benjamin grew up in Charleston, S.C., and became a celebrated lawyer in antebellum New Orleans. Though his boyhood, unlike Brandeis’s, was heavily steeped in Jewish culture, as an adult he married outside the faith in a Catholic ceremony, and he did not keep Jewish laws or celebrate Jewish holidays. Yet he could not escape his Jewish identity. The world in which he lived would not allow him to do that.

In 1853, President Millard Fillmore nominated Benjamin to become an Associate Justice of the United States Supreme Court. Elected the preceding year as one of Louisiana’s two U.S. Senators, Benjamin declined the High Court nomination. His preference for the Senate suggests that the Supreme Court had not yet become the co-equal Branch of Government it is today. Benjamin was the first acknowledged Jew to hold a Senate seat; he was elected, in 1858, to a second six-year term.

Benjamin is perhaps best known in the United States for his stirring orations in the pre-Civil War Senate on behalf of Southern interests — orations expressing sentiments with which we would today no doubt disagree — and later for his service as Attorney General, Secretary of War and, finally, Secretary of State in the Confederate Cabinet of Jefferson Davis.

Although Benjamin achieved high office, he lived through a time of virulent antisemitism in America. Political enemies called him “Judas Iscariot Benjamin.” He was ridiculed for his Jewishness in the press, by military leaders on both sides — Northern General Ulysses S. Grant and Southern General Thomas “Stonewall” Jackson — and even by fellow Confederate politicians.

After the Confederate surrender, Benjamin fled to England; en route, he narrowly survived close encounters with victorious Union troops, rough waters and storms at sea. He arrived in London with little money and most of his property lost or confiscated. His Louisiana Creole wife and a daughter, reared Catholic, had long before settled in Paris; they anticipated continuing support from Benjamin in the comfortable style to which they had grown accustomed. He nevertheless resisted business opportunities in the French capital, preferring the independence of a law practice, this time as a British barrister.

Benjamin opted for a second career at the bar notwithstanding the requirement that he start over by enrolling as a student at an Inn of Court and serving an apprenticeship. This, Benjamin’s contemporaries reported, he undertook cheerfully and with fabulous industry, although he was doubtless relieved when the Inn of Court to which he belonged, Lincoln’s Inn, determined to admit him to full membership after six months, rather than the usual three years.

Benjamin became a British barrister at age 55. His situation at that mature stage of life closely paralleled conditions of his youth. He was a newly minted lawyer with a struggling practice, but, he wrote to a friend, “as much interested in my profession as when I first commenced as a boy.”

Drawing on the knowledge of civilian systems gained during his practice in Louisiana, Benjamin produced a work in England that came to be known as “Benjamin on Sales.” First published in 1868, the book was a near-instant legal classic. Its author was much praised, and Benjamin passed the remainder of his days as a top-earning, highly esteemed, mainly appellate advocate. He became a Queen’s Counsel seven years after his admission to the bar. His voice was heard in appeals to the House of Lords and the Judicial Committee of the Privy Council in no fewer than 136 reported cases between 1872 and 1882.

A biographer of Benjamin tells us that, “[h]owever desperate his case, Benjamin habitually addressed the court as if it were impossible for him to lose.” This indomitable cast of mind characterized both Benjamin’s courtroom advocacy and his response to fortune’s vicissitudes. He rose to the top of the legal profession twice in one lifetime, on two continents, beginning his first ascent as a raw youth and his second as a fugitive minister of a vanquished power. The London Times, in an obituary, described Judah Benjamin as a man with “that elastic resistance to evil fortune which preserved [his] ancestors through a succession of exiles and plunderings.”

* * *|

The first Jew to accept nomination to the U.S. Supreme Court, of course, was Louis D. Brandeis. Brandeis graduated from Harvard Law School in 1876 at age 20, with the highest scholastic average in that law school’s history. He maintained close and continuing relationships with his teachers there and, at age 26, was called back to lecture on the law of evidence.

During his days at the bar, Brandeis was sometimes called “the people’s attorney,” descriptive of his activity in the great social and economic reform movements of his day. He helped to create the pro bono tradition in the United States. Brandeis made large donations of his wealth from practice to good causes, and he lived frugally at home. A friend recounted that, whenever he went to the Brandeis house for dinner, he ate before and afterward.

Brandeis was appointed to the Court by President Woodrow Wilson in 1916. Like me, he was 60 years old at the time of his appointment. One of his colleagues, James Clark McReynolds, was openly antisemitic, as were some detractors at the time of his nomination. When Brandeis spoke in conference, McReynolds would rise and leave the room. No official photograph was taken of the Court in 1924 because McReynolds refused to sit next to Brandeis, where McReynolds, appointed by Wilson two years before Brandeis, belonged on the basis of seniority.

Most people who encountered Brandeis were of a different view. President Franklin Delano Roosevelt, among others, called Brandeis not “Judas,” but “Isaiah.” Admirers, both Jewish and Gentile, turned to the scriptures to find words adequate to describe his contributions to American constitutional thought.

Brandeis was not a participant in religious ceremonies or services, but he was an ardent Zionist, and he encouraged the next two Jewish Justices — Benjamin Cardozo and Felix Frankfurter — to become members of the Zionist Organization of America.

Jews abroad who needed to flee from antisemitism, Brandeis urged, would have a home in the land of Israel, a place to build a new society, a fair and open one, he hoped, free from the prejudices that marked much of Europe; Jews comfortably situated in the United States, in a complementary way, would have a mission, an obligation to help their kinsmen build that new land.

Law as protector of the oppressed, the poor, the minority, the loner, is evident in the life body of work of Brandeis, as it is in the legacies of Cardozo, Frankfurter, Arthur Goldberg and Abe Fortas, the remaining four of the first five Jewish Justices. Frankfurter, once distressed when the Court rejected his view in a case, reminded his brethren, defensively, that he “belong[ed] to the most vilified and persecuted minority in history.” I prefer Goldberg’s affirmative comment: “My concern for justice, for peace, for enlightenment,” he said, “stem[s] from my heritage.”

The other Jewish Justices could have reached the same judgment. Justice Stephen Breyer and I are fortunate to be linked to that heritage. But Breyer’s situation and mine is distinct from that of the first five Jewish Justices.

* * *|

Consider President Bill Clinton’s appointments in 1993 and 1994 of the 107th and 108th Justices, Breyer and me. Our backgrounds had strong resemblances: We had taught law for several years and served on federal courts of appeals for more years. And we are both Jews. In contrast to Frankfurter, Goldberg and Fortas, however, no one regarded Ginsburg or Breyer as filling a “Jewish seat.” Both of us take pride in and draw strength from our heritage, but our religion simply was not relevant to Clinton’s appointments.

The security I feel is shown by the command from Deuteronomy displayed in artworks, in Hebrew letters, on three walls and a table in my chambers. “Zedek, Zedek,” “Justice, Justice shalt thou pursue,” these art works proclaim; they are ever present reminders of what judges must do “that they may thrive.” There is also a large silver mezuza mounted on my door post. It is a gift from the super bright teenage students at the Shulamith School for Girls in Brooklyn, N.Y., the school one of my dearest law clerks attended.

Jews in the United States, I mean to convey, face few closed doors and do not fear letting the world know who we are. A question stated in various ways is indicative of large advances made. What is the difference between a New York City garment district bookkeeper and a Supreme Court Justice? One generation, my life bears witness: the difference between opportunities open to my mother, a bookkeeper, and those open to me. My grandfather read the Forverts, the voice of Yiddish-speaking immigrants; I write these words in the Forward, whose English-speaking readership has reached the highest echelons of American society.

True, in recent months, antisemitism’s ugly head has been visible in our world. Even so, Jews in the United States seldom encounter the harsh antisemitism that surrounded Judah Benjamin, or that touched Louis Brandeis. I pray we may keep it that way.

A longer version of this article, which was originally given as a speech at the University of Louisville’s Louis D. Brandeis School of Law, will appear in the upcoming issue of the Brandeis Law Journal.


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