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

The story of U.S. Supreme Court appointments is one indication that for all our challenges, things can get better.

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.

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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.