100 years after the Brandeis nomination and the progress we’ve made

Justice Louis Brandeis
Library of Congress
Justice Louis Brandeis

June 1 marks the 100th anniversary of the day Louis Brandeis was confirmed as a justice on the U.S. Supreme Court, a centenary that set me down the path of bigger thoughts about what Martin Luther King Jr. called “the arc of the moral universe,” which, he said, was long but “bends toward justice.”

I confess I don’t always feel that way about the direction in which our species and our great nation are heading. I often say — and sometimes argue in this space — that our American system of politics and government is breaking down. A constant drumbeat of bad-to-worsts supports this pessimism, especially if one chooses (as, perhaps, too many of us often do) to focus on whatever is going wrong.

But when my friend Steve Hunegs called my attention to the upcoming centenary of the Brandeis appointment, it made me want to turn my gaze to some of the ways in which things also get better, sometimes slowly then steadily and ultimately dramatically better. In this case, my moment of Pollyannaism regards the steadily growing diversity of the Supreme Court.

The first 23 justices confirmed to the court (covering the first 47 years of constitutional history) were white, male and Protestant. The first break in that chain was the nomination of Roger Taney as chief justice, confirmed by the Senate in 1836, who became the first Catholic on the Supreme Court.

Anti-Catholic sentiment was a much bigger deal back then, so Andrew Jackson, who nominated Taney, deserves courage points for nominating him, even though Taney was a terrible chief justice, a serious racist (as was Jackson) and the author of the Dred Scott decision, one of the worst rulings in history, which held that African-Americans, whether slaves or freemen, whether living in the South or the North, were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” The ruling was not only breathtakingly, explicitly racist, it also helped bring on the Civil War.

So the Taney moment was not a happy one, but it did break the WASP barrier on the Supreme Court. (And considering Taney’s ruling and in the spirit of my “bends toward justice” first paragraph, perhaps we can even agree that the legal rights of African-Americans have improved a bit since 1857 and Dred Scott — which, by the way, was adopted by Supreme Court on a 7-2 vote.) The dissenters, John McLean and Benjamin Robbins Curtis, should probably be more famous than they are.

For a while, long after Taney left the scene, there was an informal tradition that the court have at least one Catholic justice. (They used to call it the “Catholic seat.”) It seems fairly pitiful from today’s perspective, but having one Catholic on the court was what passed for affirmative action and diversity for quite a while.

Still, the practice of considering only white, male Christians for the Supreme Court lasted until 1916. That’s well over halfway through the history of our Republic, if we start the clock with the ratification of the U.S. Constitution in 1789.

First Jewish justice

Which brings us to the Brandeis nomination (by Woodrow Wilson) and the June 1, 1916, confirmation, which put the first non-Christian on the court. (Wilson, by the way, was also a big-time racist, but not an anti-Semite.)

Brandeis had not come up via lower judicial offices, as has become nowadays the main path to Supreme Court nomination. But in those days, Supreme Court nominees came from various backgrounds in law and politics. Brandeis was a Republican who had nonetheless supported Wilson for president. He was also a leader, by the way, among American Zionists at a critical period in the development of Zionism, and he played a role in getting Wilson’s agreement with the British plan to issue the Balfour Declaration, which expressed British support for the creation of a Jewish state.

All that aside, Brandeis was widely considered the — or at least among the — most brilliant legal mind of his time, which, leaving all other considerations aside, might be viewed as a relevant factor in choosing a Supreme Court justice.  He was also controversial not only by virtue of his Judaism but also because much of his famous legal work was viewed as anti-corporate crusading.

Anti-Semitism was undoubtedly in the mix, but it’s hard to say how big an element it was in the opposition. The nomination was so controversial that it became the first Supreme Court nomination to be given a public Judiciary Committee hearing with witnesses testifying both for and against his confirmation.

The Wikipedia page on Brandeis describes it thus:

What Brandeis’s opponents most objected to was his “radicalism.” The Wall Street Journal wrote of Brandeis, “In all the anti-corporation agitation of the past, one name stands out … where others were radical, he was rabid.”[2] And the New York Times claimed that having been a noted “reformer” for so many years, he would lack the “dispassionate temperament that is required of a judge.”[34]:73 Justice William O. Douglas, many years later, wrote that the nomination of Brandeis “frightened the Establishment” because he was “a militant crusader for social justice.”[26]  According to legal historian Scott Powe, much of the opposition to Brandeis’ appointment also stemmed from “blatant anti-Semitism.”[33]

Anyway, Brandeis was confirmed by a Senate vote of 47-22, which might look lopsided to you in today’s hyper-politicized era of such appointments. But you should probably note that most nominees (14 out of 17) in the period surrounding the Brandeis confirmation passed on a voice vote, which I take to mean were unanimous or nearly so. Don’t count on that happening in the foreseeable future.

Brandeis served on the court for 23 years until his death in 1939. Since his confirmation, there has always been at least one Jewish justice except for a longish gap between the resignation (in disgrace) of Abe Fortas in 1969 and the confirmation of Ruth Bader Ginsburg in 1993.

Of course there are other religions than Christianity and Judaism, no practitioner of which have ever been nominated or confirmed to the Supreme Court. Still, after Brandeis broke the “Christian barrier,” two obvious major barriers remained: race and gender.

But if having a Jewish justice seemed controversial (until it no longer was), barriers of race and gender remained for more than four decades. Although Jews and Catholics were admitted to the club, the United States gets to 1967 — that’s 178 years into constitutional history — before Lyndon Johnson nominated Thurgood Marshall to be the first black (or any other category of non-white) justice.

Thurgood Marshall

Marshall was a titan of the civil rights movement and argued before the Supreme Court regularly on civil rights cases, including in the landmark Brown vs. the Board of Education case that resulted in segregated public schools being declared unconstitutional in 1954.

His nomination also passed by a solid 69-11, with most of the opponents and non-voters from southern states. That this historic breakthrough could occur with so little resistance was an amazing reflection of how much things had changed on race in America, but the passage of the big civil rights bills earlier in the decade had already demonstrated this.

Marshall sat on the court until retiring in 1991. His health was failing, and he did die two years later. In today’s climate I suspect he would have been under pressure to stay in hopes that a Democrat would be elected in 1992 and take office in time to appoint his successor. Instead, George H.W. Bush nominated as Marshall’s replacement Clarence Thomas, the second and to this moment only other African-American justice, but a man with a judicial philosophy opposite to Marshall’s very liberal approach. Thomas’ confirmation, by a narrow 52-48 vote, was the closest thing to a party-line vote on a judicial nomination up to that time and foreshadowed more partisanship in the future.

On the gender front, Ronald Reagan had actually made a campaign promise in 1980 to appoint a woman to the Supreme Court, and fulfilled it in 1981 with the nomination of Sandra Day O’Connor of Arizona. Just to keep the scorecard up to date: 101 justices had been confirmed before her, all men.

But once the gender barrier was broken, wow, did it stay broken. In 1993 (with O’Connor still serving, so it wasn’t a matter of filling the “woman’s seat”), Bill Clinton used his first vacancy to nominate Ginsburg to the high court, which put two women on the court for the first time. Although O’Connor did retire and was replaced by a man (Samuel Alito), President Barack Obama appointed women (Sonia Sotomayor in 2009 and Elena Kagan in 2010) to both vacancies that he has been able to fill, which brings the women’s caucus up to an all-time high of three out of nine.

Sotomayor broke another barrier, as the first Latina (or Latino) justice. Sotomayor is Catholic and Kagan is Jewish, but 18 decades after Taney broke the Catholic-justice barrier and nine decades after the Brandeis confirmation, the presence of Catholics and Jews on the court is old hat.

In fact, perhaps this has been called to your attention before, but if not: The demographic group that used to supply all or almost all justices — white, male Protestants — is now unrepresented on the court and has been since Episcopalian David Souter retired in 2009.

The entire court — three women and five men, all Catholics or Jews — is made up of groups that were never considered for the position in the early days of the republic and some — one black, one Latina — that never made it to the court until quite recently.

There is currently one vacancy, brought about by the death of Antonin Scalia (who, in addition to being one of the six Catholics at the time he died, was the first justice of Italian heritage). Senate Republicans are currently, based on made-up historical nonsense, refusing to consider Obama’s nomination of Merrick Garland as his successor. Garland is Jewish, so if he ends up on the court, we will have a court made up of five Catholics and four Jews. If you told my grandparents, who wept with joy in pride over Brandeis, that this could ever happen, they would not have believed you.

And, if the Republicans succeed in blocking Garland, and the next president ends up appointing a white Anglo-Saxon Protestant to fill the vacancy, the president could call it an affirmative-action appointment.

In case I strayed too far from the point I started out to make, let me return. Yes, we have many problems across race and gender lines in America. And yes, the small universe represented by Supreme Court nominations does little to reduce the achievement gap by race in the schools or the income gap by race in the economy.

Still, the story of the Supreme Court appointments is one, and certainly not the only, indication that for all our challenges — and let’s just for the moment refer only to challenges of overcoming racism, sexism, anti-Semitism — we have made progress, progress that would have left Dred Scott very surprised and, I hope, very pleased.

Things get better. Things also get worse. You can decide on a given day what to notice. Or you can decide that you perceive the general direction in which things are heading, as Dr. King described when he said that the arc of the moral universe is long, but it bends in the direction of justice. Of course, if you can stand one last bit of moral ambiguity, when I decided to quote that arc of the moral university bit for this piece, I had to check it out and it turns out that King kinda stole it from the 19th century transcendentalist preacher and white abolitionist Theodore Parker.

Have a great day.

Comments (14)

  1. Submitted by Jim Million on 05/31/2016 - 09:23 am.

    We should not forget:

    The Klan in these parts was anti-Catholic, then anti-Jewish. Those burning crosses of the 1920s telegraphed different messages then.

  2. Submitted by Ray Schoch on 05/31/2016 - 09:28 am.

    Agreed

    The Taney nomination was an egregiously bad choice – surely there were other prominent Catholics wandering the United States at the time – and his confirmation a low point exceeded only a few times since then. One of those times, of course, was the Dred Scott decision. Even more sad is that, despite plentiful legal rulings since then to try to undo the damage of Taney’s malevolent opinion, there remain sizable numbers of Americans right now, this very minute, who would find very little to object to in the Dred Scott decision except, perhaps, for the legality of slavery. The casual and astonishing racism of the decision would hardly raise an eyebrow among some, and those people are not confined to the former Confederacy.

    Would that we had another Louis Brandeis on the bench now, of whatever gender, race or religion.

    • Submitted by Neal Rovick on 05/31/2016 - 04:02 pm.

      Taney a feature, not a flaw for Jackson

      “Andrew Jackson was a wealthy slave owner [owned 150 slaves] and infamous Indian killer, gaining the nickname ‘Sharp Knife’ from the Cherokee,” writes Amargi on the website Unsettling America: Decolonization in Theory & Practice. “He was also the founder of the Democratic Party, demonstrating that genocide against indigenous people is a nonpartisan issue. His first effort at Indian fighting was waging a war against the Creeks. President Jefferson had appointed him to appropriate Creek and Cherokee lands. In his brutal military campaigns against Indians, Andrew Jackson recommended that troops systematically kill Indian women and children after massacres in order to complete the extermination. The Creeks lost 23 million acres of land in southern Georgia and central Alabama, paving the way for cotton plantation slavery. His frontier warfare and subsequent ‘negotiations’ opened up much of the southeast U.S. to settler colonialism.”

      Jackson was not only a genocidal maniac against the Indigenous Peoples of the southwest, he was also racist against African peoples and a scofflaw who “violated nearly every standard of justice,” according to historian Bertram Wyatt-Brown. As a major general in 1818, Jackson invaded Spanish Florida chasing fugitive slaves who had escaped with the intent of returning them to their “owners,” and sparked the First Seminole War. During the conflict, Jackson captured two British men, Alexander George Arbuthnot and Robert C. Ambrister, who were living among the Seminoles. The Seminoles had resisted Jackson’s invasion of their land. One of the men had written about his support for the Seminoles’ land and treaty rights in letters found on a boat. Jackson used the “evidence” to accuse the men of “inciting” the Seminoles to “savage warfare” against the U.S. He convened a “special court martial” tribunal then had the men executed. “His actions were a study in flagrant disobedience, gross inequality and premeditated ruthlessness… he swept through Florida, crushed the Indians, executed Arbuthnot and Ambrister, and violated nearly every standard of justice,” Wyatt-Brown wrote.

      In 1830, a year after he became president, Jackson signed a law that he had proposed – the Indian Removal Act – which legalized ethnic cleansing. Within seven years 46,000 indigenous people were removed from their homelands east of the Mississippi. Their removal gave 25 million acres of land “to white settlement and to slavery,” according to PBS. The area was home to the Cherokee, Creek, Choctaw, Chickasaw and Seminole nations. In the Trail of Tears alone, 4,000 Cherokee people died of cold, hunger, and disease on their way to the western lands.

      Read more at http://indiancountrytodaymedianetwork.com/2012/02/20/indian-killer-andrew-jackson-deserves-top-spot-list-worst-us-presidents-98997

  3. Submitted by joe smith on 05/31/2016 - 10:25 am.

    You are totally wrong Ray!!

    Race relations have come miles and miles since Dred Scott… It is the constamt drum beat of folks with an agenda that pick out the small percentage of folks who are truly racists. You are NOT a racist if you want legal immigration, you NOT a racist if you decide the “war on poverty” has not delivered after 50 years, you are NOT a racist if you disagree with President Obama you are a racist if you feel that because the color of a persons skin they are inferior humans…. I know none of those people but plenty of folks who don’t agree with the liberal left’s agenda, that does not make you a racist.

    • Submitted by RB Holbrook on 05/31/2016 - 11:20 am.

      “I know none of those people”

      Actually, I’ll bet you do. It’s just that they have developed some skill in disguising their racism.

      Is it racist to “want legal immigration?” We’ll leave aside the fact that many voices in that debate want no immigration (Have we won the war against the reconquista? Someone should ask Mr. Beck), and say no, not when it is framed in those terms. Is it racist to accuse all Mexican illegals of being drug smugglers, carriers of infectious disease, or rapists? How about the description of the US as a “dumping ground” for the rest of the worlds’ problems?

      Is it racist to declare that the war on poverty” has not delivered? Maybe. Why has it not “delivered?” Sabotage by politicians playing the Southern Strategy on a national level? The inherent traits of those groups participating? Let’s ask Charles Murray.

      Is it racist to disagree with President Obama? Not necessarily. Is it racist to depict him on mock food stamps with fried chicken, ribs, and watermelon? How about to depict him as a monkey? Questioning his birthplace?

      All of these examples get conveniently explained away, especially by people who proclaim loudly that they personally “aren’t racist, but . . .” It’s easy to accept the explanations when you want to believe them. Maybe you’re just not seeing what’s really at play.

  4. Submitted by Jim Million on 05/31/2016 - 12:22 pm.

    Dillution of effect with abuse of meaning…

    Is it “racist” to attack people of North Minneapolis? Yes, likely, because that community largely represents a true “racial” group. Is it “racist” to demean people of Mexico City? No, just plain no, because Mexicans and other Latinos are not a demographic “race,” they are brown-skinned Caucasians. The issues on our Southwest border, regardless of social view, are not ones of “race.”

    Those who abuse and purposely misuse terms of anthropological and civil definition (U.S. Census Bureau, for one) for reasons of incitement or political posturing should be ignored, in my opinion.
    If one wishes to promulgate division by bastardizing codified terms, one begs a question of intellectual honesty, therefore, credibility of position. Why should I continue reading or listening, except to forge through the bog of misrepresentation in hopes of finding some firm ground of argument? Most people turn back to their more comfortable revetments.

    So, let’s all try to clean up our terminology for the sake of credibility. If not, why should I or anyone read or listen with proper respect for viewpoint? Let’s try to leave “racist” to the political/social bomb throwers, using meaningful terms to promote meaning of discourse, growing agreement–and perhaps ultimate solutions.

    • Submitted by RB Holbrook on 05/31/2016 - 01:09 pm.

      Not Racism

      How would you describe the animus against Latinos? It seems to be based on culture, language, and national origin. At what point (if any) does that become “race?”

      Was the antisemitism used against Justice Brandeis “racism,” or something else?

      • Submitted by Jim Million on 05/31/2016 - 07:08 pm.

        It doesn’t, by definition.

        It is what it is: Ethnic, cultural and national denigration including religious persecution. We might consider these targets to be the more fundamental concern among peoples, not the more simplistic scientific element of race. “Racism” seems to have become a marketing term typically laden with emotion and misdirection. The old caution here is simply that overuse and misuse dilute or even nullify the intended effect.

        Certainly “racial discrimination” is historical fact of America. On a larger worldwide scale, “ethnic cleansing” has been more to the point…still an issue in enclaves of Eastern Europe and the Middle East. Much of what we should now understand about Kurds and other groups goes to that.

    • Submitted by Neal Rovick on 05/31/2016 - 09:02 pm.

      So, how should one characterize a certain Mr. T who claimed the majority of Mexicans in America as being murderers and rapists (oh,there’s some good ones..) ?

      And what relevance does the supposed ethnicity of a judge hearing a fraud case against that same Mr. T have to do with anything (it’s probably ok that there are some Mexican judges…) ?

      A more correct term is “prejudiced”, as opposed to “racist”.

      So our Mr. T is a prejudiced person who holds/promotes negative stereotypes about certain groups of people.

      Feel better about it now?

    • Submitted by Neal Rovick on 05/31/2016 - 10:19 pm.

      Prejudice, racism and racists

      Unfounded Beliefs + Irrational Fear = Prejudice

      Prejudice + Institutional Power = Racism

      So demeaning Mexicans as a group is prejudice. Eliminating certain legal protections from them as a group is racism.

      And for your future reference, “race” is legally defined shorthand for racial/ethnic/national/appearance grouping and is not confined to the 4 or 5 traditional groups from centuries ago. The grouping is the important thing–creating a specific set of people who seem to have shared characteristics.

      For a brief discussion of the futility of the old definition of 4 races, see:

      http://plato.stanford.edu/entries/race/

  5. Submitted by Hal Davis on 05/31/2016 - 06:12 pm.

    Dred Scott dissenter

    Eric Black writes that the “Dred Scott … dissenters, John McLean and Benjamin Robbins Curtis, should probably be more famous than they are.”

    Here is some of McLean’s dissent. It reads well today:

    “We need not refer to the mercenary spirit which introduced the infamous traffic in slaves, to show the degradation of negro slavery in our country. This system was imposed upon our colonial settlements by the mother country, and it is due to truth to say that the commercial colonies and States were chiefly engaged in the traffic. But we know as a historical fact, that James Madison, that great and good man, a leading member in the Federal Convention, was solicitous to guard the language of that instrument so as not to convey the idea that there could be property in man.

    “I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Constitution in all its bearings, rather than to look behind that period, into a traffic which is now declared to be piracy, and punished with death by Christian nations. I do not like to draw the sources of our domestic relations from so dark a ground. Our independence was a great epoch in the history of freedom; and while I admit the Government was not made especially for the colored race, yet many of them were citizens of the New England States, and exercised the rights of suffrage when the Constitution was adopted, and it was not doubted by any intelligent person that its tendencies would greatly ameliorate their condition.

    “Many of the States, on the adoption of the Constitution, or shortly afterward, took measures to abolish slavery within their respective jurisdictions; and it is a well-known fact that a belief was cherished by the leading men, South as well as North, that the institution of slavery would gradually decline, until it would become extinct. The increased value of slave labor, in the culture of cotton and sugar, prevented the realization of this expectation. Like all other communities and States, the South were influenced by what they considered to be their own interests.

    But if we are to turn our attention to the dark ages of the world, why confine our view to colored slavery? On the same principles, white men were made slaves. All slavery has its origin in power, and is against right.”

    http://www.let.rug.nl/usa/documents/1826-1850/dred-scott-case/justice-mclean-dissenting.php

  6. Submitted by Mike Worcester on 06/01/2016 - 07:56 am.

    James McReynolds

    When ever I think of Justice Brandeis two thoughts come to mind:

    First was his writings on privacy, in which he uttered the phrase “the right to be left alone”, made before he was even on the court and barely anyone had a telephone.

    Second was how awfully his fellow justice, James McReynolds (another Wilson appointee), treated him when they were on the court together, owing to McReynold’s vicious anti-semitism.

    As for Taney, he truly thought that his Dred Scott opinion would settle the matter of slavery; that once the highest court in the land said so, it would be so. Justice Taney forgot that when it came to emotional issues of the day (just like now), folks did not always respect the court’s opinion if they differed with it.

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