Looking at Jewish judges in the courts

By Anton Katz

At the end of 2020 Judge Dennis Davis, who has been the Judge President of the Competition Appeal Court and a judge of the High Court in Cape Town since the late 1990s will be retiring.

The end of his distinguished judicial career brings to an and, at least for a time, a Jewish judge in Cape Town. It is worth recalling that the first Constitutional Court of South Africa appointed by President Mandela in 1994 included three Jewish justices among its eleven members.

Arthur Chaskalson was the President of the Constitutional Court, and the other two were Richard Goldstone and Albie Sachs. They are the only Jewish justices in the twenty-six years of the Constitutional Court’s existence.

The three’s relationship with Judaism, their Jewish identities and their broad responses to Israel and Zionism may and probably had an important impact on how they decided cases. Reading biographies and memoirs by and about them gives interesting and important insights into the role Judaism played in their judicial lives. Interestingly the Constitutional Court regularly relied on judgments from courts around the world.

One of the first and important quotes from a foreign court is that of Brandeis J, the first Jewish justice of the United States Supreme Court, where he stated: “In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously… Government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example… If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.” Turning to the US Supreme Court: it was established 231 years ago in March 1789. Of the 114 justices who have served on the bench 108 have been white men, 6 of whom were Jewish. Two of four women US justices were/are Jewish.

In a wonderful 2017 book Jewish Justices of the Supreme Court, historian and rabbi David Dalin examines the lives, legal careers and legacies of the eight Jewish men and women who have served or who currently serve as justices of the United States Supreme Court: Louis D. Brandeis, Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, Abe Fortas, Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan.

He analyses the relationship that they had with the Presidents who appointed them, and given the judges’ Jewish background, investigates the anti-Semitism some of the justices encountered in their ascent within the legal profession before their appointment. Rabbi Dalin in some detail considers the role that anti-Semitism played in the political debates and Senate confirmation battles. Other topics and themes include the changing role of Jews within the American legal profession and the views and judicial opinions of each of the justices on freedom of speech, freedom of religion, the death penalty, the right to privacy, gender equality and the rights of criminal defendants.

In 1916 President Woodrow Wilson nominated Louis Brandeis as the first Jewish justice. Brandeis’ nomination was bitterly contested and denounced by conservative Republicans, including former President William Howard Taft; further opposition came from members of the legal profession, including former Attorney General George W. Wickersham and former presidents of the American Bar Association, such as former Senator and Secretary of State Elihu Root of New York, who claimed Brandeis was “unfit” to serve on the Supreme Court According to legal historian Scott Powe, much of the opposition to Brandeis’s appointment stemmed from “blatant anti-semitism.” Taft would accuse Brandeis of using his Judaism to curry political favour, and Wickersham would refer to Brandeis’s supporters and Taft’s critics as “a bunch of Hebrew uplifters.” Senator Henry Cabot Lodge privately complained, “If it were not that Brandeis is a Jew, and a German Jew, he would never have been appointed.”

What is interesting is that for about a century before Brandeis’s appointment the groundwork had been laid. US presidents had appointed Jews to diplomatic posts. For his first 50 years Justice Brandeis was highly assimilated and celebrated Christmas, did not practice Judaism and had almost nothing to do with organised Jewish life. In ‘midlife’ Brandeis showed an interest in Zionism, and just prior to his appointment as a Supreme Court Justice assumed the leadership of the American Zionist movement.

Before Brandeis’s nomination by President Wilson the Senate appointed the nominated person almost by simply rubber stamping the President’s choice. Brandeis was different. The confirmation battle in the Senate was unequaled until the 1987 Robert Bork saga. The confirmation wars are now part of the process in a divisive US. Think of President Trump’s nominations of Brett Kavanaugh and Amy Coney Barret.

Reading Rabbi Dalin’s book several things struck me.

First, the path to appointing the first Jewish justice was constructed over a long period. It was built brick by brick by many and more and more senior Jewish appointments in the US administration and judiciary generally. That slow building lesson applied to the appointment of the first black (Thurgood Marshall) and then first woman (Sandra day O’Connor) appointments.

Secondly, once the barrier of a Jewish justice had been broken it became the norm that at least one of the 9 justices would be Jewish; indeed, at some point 3 of the 9 were Jewish.

Thirdly, the Jewish Justices judicial contributions were a mixed bag. What would be considered outrageous conduct today was regarded as fine at times. So, some of the Justices while sitting as a judge would advise and assist the President, with whom they were close, on a policy issue and then sit in judgment on challenges to that very policy. That would be unthinkable today. What is fascinating is how the justices would swap votes on particular issues across cases. So, one justice would agree to set aside a death penalty and in return the other justice would agree to rule in a particular manner on a copyright or labour case.

Fourthly, the wide ranging and different relationships each of the eight justices had to Judaism and Zionism. And how those relationships developed and morphed over the years.

As one reflects over the development of Jewish justices in the US and Dennis Davis’s career as a judge and those of the three founding Constitutional Court justices interesting ideas of when will another Jewish judge and/or judge president and/or justice of the Constitutional Court be appointed in South Africa.

The ever-dwindling Jewish community and the emphasis on new and different career (not law) paths suggest that Jewish judging in South Africa will at least for some time be less prominent than in the recent past.

Published in the print edition of the December 2020/January 2021 issue.
Download the Dec/Jan issue PDF here.

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