Who Was the First Jewish Supreme Court Justice?

The first Jewish Supreme Court justice was Louis D. Brandeis, who took the judicial oath on June 5, 1916, after one of the most contentious confirmation fights in Senate history.¹ His appointment broke a barrier on a court that had been exclusively Protestant and Catholic for more than a century, and the opinions he wrote over the next twenty-two years still shape American law on privacy, free speech, and the balance between federal and state power.

Who Brandeis Was Before the Court

Brandeis arrived at the Supreme Court with a national reputation as the “People’s Lawyer.” He took on railroad conglomerates, challenged insurance industry abuses, and pushed for transparency in financial markets, often without charging a fee.¹ That reputation made him beloved by reformers and deeply unpopular with the corporate interests he had spent his career fighting.

His most lasting contribution as a practicing attorney came in the 1908 case Muller v. Oregon. Defending an Oregon law that limited women’s working hours, Brandeis submitted a brief in which only about two pages addressed legal doctrine. The rest drew on medical testimony, labor statistics, and reports from social scientists documenting the health effects of long shifts. The Supreme Court unanimously upheld the law, and the method became known as the “Brandeis Brief.”² Courts after Muller began expecting real-world evidence alongside legal reasoning, and the technique is now standard in constitutional litigation.

A Four-Month Confirmation Fight

President Woodrow Wilson nominated Brandeis on January 28, 1916.³ Wilson wanted a justice who would push back against a court that leaned heavily toward protecting corporate interests, and Brandeis fit. The nomination also broke an unspoken rule: every justice before him had been Protestant or Catholic.

What followed was the longest confirmation fight the Senate had ever seen, dragging on for roughly four months at a time when most nominees cleared the chamber in days. The opposition came from two directions that reinforced each other. Antisemitic prejudice ran through much of the public criticism. At the same time, corporate interests saw Brandeis as a sitting threat to their position.

Former President William Howard Taft called the nomination “an evil and a disgrace.” Six former presidents of the American Bar Association publicly opposed confirmation. Republican senators Henry Cabot Lodge and Elihu Root joined the resistance. Critics raised questions about Brandeis’s judicial temperament and professional ethics, though hostility toward his religion and his reform record drove much of the campaign.

The Senate confirmed him on June 1, 1916, by a vote of 47 to 22, with 27 senators not voting.³ He took the oath four days later.

What He Did on the Bench

Brandeis served nearly a quarter century on the court. Several of his opinions, including dissents that were on the losing side at the time, became more influential than the majority rulings they challenged.

Privacy as the Right to Be Let Alone

In Olmstead v. United States (1928), the court ruled that federal agents could wiretap phone conversations without a warrant because no physical search or seizure had occurred. Brandeis dissented. He argued that the framers meant to protect Americans in “their beliefs, their thoughts, their emotions and their sensations,” and he described privacy as “the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.”⁴ The Supreme Court eventually adopted his view in Katz v. United States (1967), overruling Olmstead and holding that the Fourth Amendment protects people rather than only physical places.

Free Speech and “More Speech, Not Enforced Silence”

Brandeis’s concurring opinion in Whitney v. California (1927) is widely considered one of the strongest defenses of free expression in American law.⁵ The case involved a woman convicted under California’s criminal syndicalism law for helping organize a political party. Though Brandeis concurred in the result, his opinion read more like a dissent. He wrote that the founders “believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth,” and that “the greatest menace to freedom is an inert people.” When harmful speech can be answered through open discussion, he wrote, “the remedy to be applied is more speech, not enforced silence.”⁶ Government should suppress speech, he argued, only when serious violence is so imminent there is no time for debate.

States as Laboratories

In New State Ice Co. v. Liebmann (1932), the majority struck down an Oklahoma law regulating entry into the ice manufacturing business. Brandeis dissented, writing that a “single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”⁷ The “laboratories of democracy” phrase has been invoked for nearly a century to defend state-level policy innovation.

Erie and the Shape of Federal Courts

One of his most consequential majority opinions came in Erie Railroad Co. v. Tompkins (1938). Before Erie, federal courts hearing disputes between citizens of different states often applied their own version of “general common law,” which produced different outcomes than state courts would have reached on identical facts. Brandeis wrote for the majority that “there is no federal general common law,” and that federal courts must apply the law of the state where the dispute arose.⁸ Every first-year law student studies it, and every federal judge applies it.

The “Jewish Seat” He Opened

Brandeis’s appointment created what historians have called the informal “Jewish seat” on the Supreme Court. When he retired, President Franklin Roosevelt replaced him with Felix Frankfurter, another Jewish jurist, signaling that Jewish representation was no longer a one-time experiment. In all, eight Jewish justices have served on the Supreme Court: Brandeis, Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, Abe Fortas, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.³ The idea of a single designated seat eventually faded. By the time Ginsburg, Breyer, and Kagan served together, the notion that only one Jewish justice could sit at a time was clearly obsolete.

Retirement and Legacy

Brandeis retired from the Supreme Court on February 13, 1939, after more than twenty-two years of service.³ He died on October 5, 1941. The U.S. Capitol Visitor Center describes him as “widely regarded as one of the most influential justices ever to serve on the Supreme Court.”¹ Brandeis University in Waltham, Massachusetts, founded in 1948, bears his name.

1
U.S. Capitol – Visitor Center. Judicial Oath of Louis D. Brandeis, June 5, 1916
2
Justia U.S. Supreme Court Center. Muller v. Oregon
3
Justia U.S. Supreme Court Center. Justice Louis Brandeis
4
Library of Congress. Olmstead v. United States 277 U.S. 438
5
Justia U.S. Supreme Court Center. Whitney v. California, 274 U.S. 357
6
Library of Congress. Whitney v. California 274 U.S. 357
7
Justia U.S. Supreme Court Center. New State Ice Co. v. Liebmann, 285 U.S. 262
8
Justia U.S. Supreme Court Center. Erie Railroad Co. v. Tompkins, 304 U.S. 64