When Domineque Hakim Marcelle Ray was preparing to be executed by the state of Alabama earlier this year, he asked the warden for a Muslim imam to counsel and pray with him. The state rejected his request and said his only option was a Christian pastor. Ray filed suit, and a federal court put his execution on hold. But on Feb. 7, the U.S. Supreme Court's five-justice conservative majority allowed the execution to proceed. Hours later, Ray was dead.
Justice Elena Kagan is one of three Jewish members of the high court, all of whom dissented. She called the decision "profoundly wrong." "A Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites," Kagan said. "But if an inmate practices a different religion — whether Islam, Judaism, or any other — he may not die with a minister of his own faith by his side."
Faced with a similar claim from a Buddhist death row inmate in Texas this week, the Supreme Court intervened to stop the execution. In a footnote, Justice Kavanaugh suggested that the difference was the tardiness of the Alabama inmate's appeal. But some speculated that the different results indicated anti-Muslim bias, while others suggested that Kagan's dissent in the Alabama case had an effect on some members of the conservative majority.
Kagan is one of eight Jewish justices who've sat on the U.S. Supreme Court, while the five conservative justices who let Ray's execution proceed are all Christians, including four Roman Catholics. The court's first Jewish justice was the Kentucky-born progressive Justice Louis Brandeis, who was confirmed in 1916 despite a long delay that many argue resulted from anti-Semitism.
Until recently, there were few Jewish justices on state supreme courts in the South. However, two recent appointments by the governors of Florida and North Carolina have brought non-Christian perspectives to those states' high courts.
State legislatures in the South are almost entirely filled with Christians, and the actions of some Southern elected officials suggest a bias toward Christianity. Such actions can lead to lawsuits seeking to protect the free exercise of religion or the separation of church and state.
In cases like this, judges of different faiths can bring different perspectives to bear. A 2017 study examined rulings by federal judges of various faiths in cases involving religious freedom and separation of church and state. "Jewish judges are significantly more likely than their non-Jewish colleagues to favor claimants in religious liberties cases," the authors concluded, noting that this trend was the result of "increased concern for the separation of church state" and not any particular concern for "the interests of religious minorities."
Besides the First Amendment, protections for religious freedom are also provided by state constitutions and the state courts that interpret them. For example, the 1776 Virginia Declaration of Rights said that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience." And as far back as 1669, John Locke's charter for the Carolina colony granted "liberty of conscience to all heathens, Jews, and dissenters."
But as with the First Amendment and the U.S. Supreme Court, these constitutional protections for religious freedom sometimes seem to offer stronger protection to Christians than other groups. In Alabama and Texas, for instance, supreme court justices have been elected after refusing to remove monuments to the biblical Ten Commandments from their courtrooms.
Not a level playing field
The U.S. Supreme Court might have had four Jewish justices today if the Republican-controlled Senate had held a vote on President Obama's final nominee, Merrick Garland, currently chief judge of the U.S. Court of Appeals for the D.C. Circuit. Rabbi Evan Moffic suggests that the relative over-representation of Jews on the nation's high court stems from their historical experience in the U.S.:
Until the American Constitution, Jews had never experienced equality under the law. We were always tolerated minorities, convenient scapegoats when economic and political times got tough. The founding of America altered this pattern. … For the first time, Jews were simply included as "persons" under the law. That is revolutionary. "By refusing to single us out," as Robert Kirschner put it, "the Constitution counted us in."
But historically, few Jews sat on Southern courts. A list compiled in 1931 shows that only a few Jewish judges had presided in the South: one Arkansas Supreme Court justice in the early 20th century, and two Jewish Louisiana judges, including one appointed to a Confederate state court in 1861. During Reconstruction, a Jewish justice was appointed to the South Carolina Supreme Court.
A 1980 study found that the percentage of Jewish state supreme court justices in the U.S. had risen to 11.6 percent. But in the last two decades, the percentage of Jewish justices on those courts has been around 6 percent.
Some states, including Texas, have no Jewish supreme court justices. Brian Cweren, founder and president of the Texas Jewish Bar Association, told Facing South that the dearth of Jewish justices in his state may be due to politics: Governors making judicial appointments might ask themselves which nomination will help win elections, and outside of a shrinking Jewish community in Houston, there are few Jewish voting blocs in Texas.
"It's not a level playing field," Cweren said.
Earlier this month, North Carolina Gov. Roy Cooper (D) appointed Mark Davis as his state's first Jewish justice. Davis replaced Justice Cheri Beasley, who Cooper recently promoted to be the first black woman to serve as North Carolina's chief justice. Davis was named to the N.C. Court of Appeals in 2014 to replace Beasley after she ascended to the high court.
And in January, Florida Gov. Ron DeSantis (R) appointed Robert Luck to the state Supreme Court, its first Jewish justice in two decades. Luck noted that his appointment is happening "two generations after my grandfather sliced brisket at a deli."
"All I wanted to do was to give back to the state that had given so much to my family and the millions of others that had come here looking for a better life," Luck said.
That seat was one of three that were vacant when DeSantis took office this year following a racially charged election in which both candidates were accused of associating with anti-Semites. The court had just lost its only black member, and Florida's judicial nominating commission had not included any black attorneys in its list of potential nominees. But rather than ask for more diverse nominees, DeSantis went ahead and chose to appoint Luck as well as two Latinos — Barbara Lagoa, currently the court's only woman, and Carlos Muñiz, formerly a top lawyer for U.S. Education Secretary Betsy DeVos.
After the election, an attorney for the Miami-Dade NAACP argued that former Gov. Rick Scott (R) had "packed" the nominating commission with members "more interested in evaluating whether a potential justice is in total alignment with the governor's priorities rather than reflective of the diversity of our state, experienced, well qualified, fair and independent."
With support from the Florida Access to Justice Project, which advocates for fair and diverse Florida courts, Democratic legislators have introduced a bill to reform the nominating commission. It would reduce the governor's enormous influence over the commission, shorten commissioners' terms, and mandate that the commission include diverse members of different races, ethnicities, sexual orientations, and party affiliations.
Both Davis and Luck will have to run in elections next year to keep their seats.