Three Jewish Supreme Court justices putting a powerful stamp on US Jewry

#18: Ruth Bader Ginsburg, Stephen Breyer & Elena Kagan

Stephen Breyer, Elena Kagan, Ruth Bader Ginsburg (photo credit: REUTERS)
Stephen Breyer, Elena Kagan, Ruth Bader Ginsburg
(photo credit: REUTERS)
Like most of the US Jewish community, all three of the US Supreme Court’s Jewish justices are on the liberal side. But agree or disagree with their decisions, they each have their own unique character and image that have put a powerful stamp on US Jewry and Israel. 
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US Supreme Court Justice Ruth Bader Ginsburg was temporarily sidelined by her fourth cancer-related surgery recently and admits she is still working through the pain. But none of that, at the end of the day, seems to have stopped this indomitable 86-year-old icon of the court.
“This latest has been my fourth cancer bout,” she told an audience recently after receiving Moment magazine’s Human Rights Award. “And I found each time that when I’m active, I’m much better than if I’m just lying about and feeling sorry for myself. It’s necessary – a necessity – to get up and go. It’s stimulating. And somehow, in all of these appearances I’ve had since the end of August, whatever my temporary disability is, it stops, and I’m OK for the time of the event.”
In 2018, a documentary about Bader Ginsburg titled RBG was such a hit that it broke its way into pop-culture. Celebrities such as Jennifer Lopez have talked about helpful personal advice they received from RBG.
In September, the justice wrote another one of her signature fiery dissents, blasting the court’s majority for allowing the Trump administration’s newest policy against certain asylum seekers to be enacted, even though the US court system still has not ruled on whether it is legal.
But the documentary – and her 2018 tour presenting it in Israel, as well her life’s story far – outshined those decisions.
As an ACLU lawyer, she won five out of six major Supreme Court decisions, altering the debate surrounding women’s rights.
If the court expected her as a lawyer to stick to small-change factual issues in dispute, she made each case about whether the country viewed women as equal from a bird’s eye view.
Once she ascended to the court, she was already a national hero for women’s equality and liberalism, which at times gave her outsized influence on the court.
The film recalls that Ginsburg was confirmed to the court by an astounding bipartisan 96-3 vote, in contrast to the routine narrow party-line votes that now seem to characterize every confirmation of a new justice.
In 2018, she came to Israel to receive the inaugural Genesis Lifetime Achievement Award, initiating a year of The Genesis Prize Foundation’s (GPF) philanthropy dedicated to women’s empowerment. An outspoken advocate for gender equality, she was selected to receive the award “for her groundbreaking legal work in the fields of civil liberties and women’s rights,” and her vision to “open doors to women” inspired GPF to make grants to organizations in Israel and North America promoting socio-economic opportunities for women.
In a September interview, RBG said that she hoped that future confirmation hearings would get similar bipartisan support and be less contentious. At the recent Moment magazine awards dinner on September 19, she concluded her remarks by saying, “I am a judge, born, raised and proud of being a Jew. The demand for justice, for peace, for enlightenment, runs through the entirety of the Jewish history and Jewish tradition. I hope that in all the years I have the good fortune to continue serving on the bench of the Supreme Court of the United States, I will have the strength and courage to remain steadfast in service of that demand.”
Stephen Breyer
Justice Stephen Breyer, who turned 81 in August, has served on the US Supreme Court since 1994, having clerked for the legendary justice Arthur Goldberg in 1964.
Though part of the court’s liberal wing, Breyer has always had a middle-of-the-road record. His trend of being hte swing vote increased this past year and is expected to continue to increase.
Unlike two other liberal justices, he did not write a dissent to a key US Supreme Court decision in September about more restrictive policies by the Trump administration regarding certain asylum seekers.
Breyer has formally joined the conservative majority on an increasing number of rulings, including one related to services for same-sex couples, and it appears it may be part of a growing deal between swing votes.
From the conservative wing of the court, Chief Justice John Roberts, Justice Brett Kavanaugh and Justice Neil Gorsuch have each been defecting on certain decisions to the liberal wing, resulting in some unexpected wins in that direction.
Collectively, Breyer and Justice Elena Kagan’s swing votes, along with those of the three conservative justices, have made the court more dynamic going into its October session.
Regarding Jewish issues, while he was in the 6-3 majority that rejected in 2015 registering US passports with Jerusalem as Israel’s capital during the Obama administration, he voted with the 6-2 majority endorsing a multi-billion dollar judgment against Iran in 2016 in favor of terror victims, including Americans attacked while in Israel.
Breyer has talked about his Jewish identity publicly many times over the years, usually emphasizing a commitment to social Jewish values, and appears to identify as being more traditional than some other Jewish justices.
He also helped move the court in the 1990s toward not hearing cases on Yom Kippur.
Elena Kagan
In her near decade on the US Supreme Court, Justice Elena Kagan has become more of a leading force for the court’s liberal wing, while swinging with Breyer occasionally to support the conservatives in certain cases.
When the majority said that it could not override gerrymandering by political parties because it was not equipped to evaluate or fix the issue, Kagan wrote a road map for exactly how gerrymandering could be checked and fixed.
More significantly, some state courts started using her road map in September to disqualify gerrymandering, as the Supreme Court did not prohibit state courts from doing what it did not want to do.
Previously, she broke into the headlines for introducing a new frozen yogurt machine after she had previously complained about the cafeteria in public speeches. Kagan made headlines again, such as “it all starts in the kitchen,” when she dumped the position on Neil Gorsuch, the newest rookie at the time.
Her “Spider-Man” decision got media coverage when she opted for Spider-Man terminology to enliven one of her decisions.
She makes a relatively large number of public appearances, and though she was photographed dressing up as a judge in high school, she is the only justice who was never a judge before joining America’s highest judicial body.
But Kagan’s biggest claim to fame as a Jewish judge was a rousing retelling of one of the first interactions between George Washington and American Jews.
Quoting Moses Seixas of Newport, Rhode Island, who thanked Washington in 1790 with “a deep sense of gratitude” for the new government, Kagan related Seixas’s statement that the US has “a government, which to bigotry gives no sanction, to persecution no assistance – but generously affording to all liberty of conscience and immunities of citizenship: deeming every one, of whatever nation, tongue, or language, equal parts of the great governmental machine.”
Her quote explained the significance of the government not showing preference to a specific religion in a 5-4 dissent against a decision by the court regarding separation between “church and state,” which allowed a primarily Christian town to hold prayers at the start of its meetings.