RBG

When RBG Took the Supreme Court to School on Jewish Traditions

This column expresses the views of Tony Mauro, special correspondent for the Freedom Forum.

In articles and eulogies after the death of U.S. Supreme Court Justice Ruth Bader Ginsburg on Sept. 18, it was often mentioned that the door of her court chambers was adorned with a large silver mezuzah.

“At Christmas around here, every door has a wreath,” Ginsburg, whose legacy included a number of freedom of religion decisions, said in an interview for the 2005 book, “Stars of David: Prominent Jews Talk About Being Jewish.”

“I received this mezuzah from the Shulamith School for Girls in Brooklyn, and it’s a way of saying, ‘This is my space, and please don’t put a wreath on this door.’”

But that was not the only gesture that Ginsburg, in her quiet but persistent way, would introduce her court colleagues to the traditions of Judaism. In a sense, it was her own way of bringing home to her workplace the free exercise of religion clause of the First Amendment.

Soon after Justice Stephen Breyer, also Jewish, joined the court in 1994, Ginsburg recruited him to help her campaign aimed at canceling oral arguments on the days when Jews celebrate Yom Kippur.

“Usually the high holy days come out before the court starts up, but sometimes they overlap,” Ginsburg said in a 2018 interview in Forward magazine. “So Justice Breyer and I — Justice [Elena] Kagan was not on the court — asked the chief justice [William Rehnquist] if the court could defer the sitting day. And the first response was, ‘we confer on Good Friday and nobody complains about that.’ I said, ‘I’d be happy to come Thursday that week.’” Other justices also suggested that those who could not attend arguments because of Jewish holy days could just read transcripts or listen to audio later on.

But Ginsburg and Breyer prevailed, and arguments don’t occur on Jewish holy days anymore. In 2009, when some of the late Chief Justice Rehnquist’s papers were made public, one of his correspondence files yielded a note from Ginsburg to Rehnquist in which she stated, “Dear Chief: Just to say you are a mensch (Yiddish for fine human), and hope you do not regard me as too much of a kvetch.”

Ginsburg educated her colleagues in another situation soon after she joined the court. William Suter, then the clerk of the Supreme Court, came to her and said that some Orthodox Jewish lawyers who were joining the Supreme Court bar objected to the words “year of the Lord” printed on the membership certificate. The lawyers wanted certificates that did not include that phrase.

In a memorandum to her colleagues, Ginsburg reported that “a few new members of our bar who are not of a Christian faith request deletion of the words ‘in the year of our Lord’ from their admission certificates.” She attached a letter from a California lawyer who objected to the wording because its reference to the Gregorian calendar means that “our Lord” is understood to be Jesus Christ.

“Dropping ‘in the year of our Lord’ seems to me an accommodation appropriately made in conjunction with a redesigned certificate,” wrote Ginsburg, who also objected to the size of the certificate then used. Ginsburg did some research and found that certificates issued by three circuit courts did not include the phrase or “A.D.,” (Anno Domini,) its Latin counterpart. Four circuit courts, including her own former D.C. circuit, used “in the year of our Lord,” while seven others used “A.D.”

Ginsburg asked Suter to produce a sample alternative certificate and in January 1994, Suter did just that. Suter recommended offering bar applicants two versions with or without “in the year of our Lord” and amending the application form to make it clear that both options are available. “Clerk Suter has done a fine job with the new certificate, don’t you agree?” she said. Ginsburg asked that the issue be placed on the court’s conference agenda.

At that conference, Ginsburg ran into some opposition to her idea. In “Stars of David,” Ginsburg recalled that a justice, whom she would not name, referred to previous Jewish justices in asserting, “The year of the Lord was good enough for (Louis) Brandeis, good enough for (Benjamin) Cardozo, it was good enough.” At that point, Ginsburg interjected, “Stop, it’s not good enough for Ginsburg.”

Ginsburg won the day. Thanks to Ginsburg, the current admission form still states, “The admission certificate contains the words ‘in the year of our Lord, two thousand ….’ If you would prefer an alternative form that omits these words, check the ‘alternative certificate’ box on the application form.”

Tony Mauro is contributing U.S. Supreme Court correspondent for the National Law Journal and ALM Media, and a special correspondent for the Freedom Forum.

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