Library of Congress Prints and Photographs Division; Jerome Delay/AFP via Getty Images
Thurgood Marshall, left, and Colin PowellLibrary of Congress Prints and Photographs Division; Jerome Delay/AFP via Getty Images
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The Shabbos Goyim

A lesson in interfaith understanding from Colin Powell and Thurgood Marshall

by
Nathan Lewin
October 22, 2021
Library of Congress Prints and Photographs Division; Jerome Delay/AFP via Getty Images
Thurgood Marshall, left, and Colin PowellLibrary of Congress Prints and Photographs Division; Jerome Delay/AFP via Getty Images

The sad passing of Colin Powell has generated many loving accounts in Jewish media of his recollections serving as a “Shabbos goy” in his youth, when he assisted with tasks that were forbidden to observant Jews on the Sabbath. “Collie,” as his Jewish employer called the teenaged Powell, told Jewish audiences that in addition to serving as a “shlepper” in a Bronx infant-goods store owned by an Orthodox Jew, he collected a quarter each Friday night for turning off the lights at the synagogue.

What many may not know is that Powell was not the only Shabbos goy to grow to greatness. In the summer of 1965, I was introduced to another national icon who—I discovered to my surprise—had youthful exposure to this same Jewish practice. I had been working for two years as an assistant to the solicitor general of the United States under Archibald Cox, a Harvard Law professor who had been appointed by President John F. Kennedy. (Years later, Cox gained national fame as the Watergate special prosecutor fired by President Richard Nixon.) That year, however, President Lyndon Johnson chose to replace Cox with the nationally respected attorney Thurgood Marshall, as a stepping-stone to making Marshall the country’s first African American Supreme Court justice.

Marshall had been named by Kennedy to the Federal Court of Appeals in New York, and left that judicial slot to become the federal government’s advocate in the Supreme Court. The Solicitor General’s Office at that time had seven assistants, and I was lucky enough to be one of the elite group that argued cases before the High Court. Marshall was confirmed by the Senate and arrived at his relatively modest corner office in the Justice Department in mid-August. The lawyers he inherited from the Cox era were told to come in, one at a time, to “meet the judge” who was to be our new boss. We were asked to begin the conversation by telling Marshall about our background, so that he could acquaint himself with his new staff.

Being relatively junior, I came late in the process. When notified that it was my turn, I entered his office, shook hands, and reviewed my education and experience, which included attendance at Yeshiva University and Harvard Law School, and service as a law clerk on the Court of Appeals and the Supreme Court. Marshall sat quietly through it all, exhibiting faint boredom. He had undoubtedly heard many such resumes before. When I finished, I thought I had better warn him that I was a Sabbath-observer and would be unavailable on Saturdays and Jewish holidays. All my prior bosses—Judge Lumbard, Justice Harlan, and professor Cox—had known this and readily accepted my absences.

I began by telling Marshall that I was an Orthodox Jew who observed the Sabbath. Since the holidays were approaching, I thought I had better mention those, too. So I continued, “In addition to Saturdays, I can’t work on the Jewish holidays, and they are coming soon. First there is the Jewish New Year, Rosh Hashana, and then comes the holiest day of the year, Yom Kippur.”

At this point, the judge interrupted. “Yes, and then there’s Sukkot, Shemini Atzeret, and Simchat Torah.” I almost fell over. “That’s right,” I said, and added, “But how do you know that?”

“Easy,” Marshall replied, “I grew up in a Jewish neighborhood in Baltimore. In fact, I made some money by turning off lights in homes there on Friday nights.”

Working for Solicitor General Marshall over the next two years was a pleasure, and we got along famously. When Marshall presented to the Supreme Court in a companion to the famous Miranda case—which mandated the practice of informing an arrested suspect of his right to remain silent—I worked with him in preparation for that argument and sat as second chair. Marshall thought well enough of me that, after I left government for private practice, he called to tell me that he was recommending that I be appointed to brief and argue a case in the High Court for a defendant who needed a court-appointed lawyer. I presented that case and unfortunately lost it, notwithstanding persuasive dissents by Justices Douglas, Brennan, and Marshall.

Justice Marshall even invoked his early years in an Orthodox Jewish neighborhood when it affected a case before him. In 1981, the Air Force threatened to court martial Simcha Goldman, a psychologist at an Air Force base in California, for wearing a yarmulke while in uniform at a military hospital. Goldman asked me to be his lawyer, and I argued that denying him the right to wear a skullcap violated the religious protections of the Constitution’s First Amendment. The case made its way up to the Supreme Court. In a 5-to-4 decision, it rejected our constitutional claim. (Shortly thereafter, Congress effectively nullified the Supreme Court ruling by enacting a law granting service members the right to wear “neat and conservative” items of religious apparel.) The four dissenters in Goldman’s case were Justices Brennan, Marshall, Blackmun, and O’Connor.

In his will, Justice Blackmun left his papers to the Library of Congress, so his handwritten notes of the private conferences attended only by the justices are now publicly available. The court held conferences each Friday after an argument session to exchange their initial thoughts on the cases heard that week. Blackmun’s notes of the conference held on Jan. 17, 1986, (the Friday following my oral argument of the Goldman case), show Marshall as voting in favor of Goldman’s constitutional right. In Blackmun’s handwriting, jotted down during the conference in the space allotted to “Marshall, J.,” appears the following: “I was raised in Orthodox J neighborhood in Baltimore. Very impt to them.”

May we all cultivate such understanding of those who live and worship differently from us.

Nathan Lewin is a Washington lawyer with a Supreme Court practice who has taught at Harvard, Georgetown, Columbia, and University of Chicago Law Schools.

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