U.S. Supreme Court justices Stephen Breyer and Elana Kagan got surprisingly personal – discussing their Jewish identities – at the opening plenary of the 2014 General Assembly of the Jewish Federations of North America held at National Harbor.
Speaking before a crowd of some 2,000 at the conference center just outside Washington, Breyer said the most remarkable thing about there being three Jews among the nine Supreme Court justices is how unremarkable it is in America today. “If you had told my grandfather there would be three Jewish justices on the Supreme Court, he wouldn’t have believed it.”
Kagan, the other justice on the panel discussion moderated by NPR chief legal affairs correspondent Nina Totenberg, said her Jewish identity was the one thing that didn’t come up during her Senate confirmation process.
“The one thing nobody ever said, the one thing I never heard was, ‘We don’t need a third Jewish justice,’ or ‘There’s a problem with that,’ ” she said. “So that’s a wonderful thing. My grandmother would have said ‘Only in America.’ ”
Kagan also recalled her bat mitzvah, crediting Rabbi Shlomo Riskin – then of the Lincoln Square Synagogue on Manhattan’s Upper West Side (and now rabbi in Efrat, Israel) – with enabling the ceremony even though it was unusual for Orthodox synagogues at the time.
The ceremony, called a “bat Torah,” took place on Friday night rather than Saturday and had her chanting the haftarah portion rather than the Torah portion. While it wasn’t a full bat mitzvah, “it was something,” she said.
As open as the justices were about their Jewish identities, they were comparatively coy about their upcoming caseload.
Last week, the Sixth Circuit upheld prohibitions on gay marriage in four states (Michigan, Ohio, Tennessee and Kentucky) in DeBoer v. Snyder. The decision creates a split among the lower courts as to the constitutionality of state gay marriage bans and makes it more likely the justices will take up the issue.
Breyer suggested that the same-sex marriage issue might still be on the table despite the high court’s decision not to hear appeals on the issue earlier this term.
“There are plenty of opportunities” to consider future appeals on same-sex marriage, he said. Fellow Justice Elena Kagan demurred. “You don’t really expect an answer on that, do you?” she asked Totenberg.
In an interview with Washington Jewish Week immediately following her on stage appearance with the justices, Totenberg noted that Supreme Court review of gay marriage isn’t a foregone conclusion. If the Sixth Circuit agrees to a request from the lawyers in those four states for an en banc (full panel) review of the case, and the decision is overturned, “there will no longer be any split.”
The Sixth Circuit’s is thus far the only federal appellate court opinion rejecting constitutional claims for same-sex marriage.