While it is generally well-known that Louis Brandeis was the first Jew to serve on the United States Supreme Court (from 1916-39), few people can identify the first Jew to serve on the federal bench or recognize the important role he played in the nation’s civil rights jurisprudence.
When President William McKinley appointed Jacob Trieber (1853-1927) as a United States District Court Judge for the Eastern District of Arkansas in 1900, Trieber became the first Jewish federal judge in the United States.
His nomination received almost universal acclaim – including, incredibly, support from Democratic leaders and active support from five Democratic justices on the Arkansas Supreme Court – and was quickly confirmed by the U.S. Senate. He went on to serve as a federal judge for 27 years and became one of the nation’s most prominent jurists and constitutional scholars.
Notwithstanding Trieber’s popularity and the near universal respect with which he was regarded by his peers, the appointment of an immigrant of modest means who lacked college or law school training; who hailed from a small rural Arkansas town; who had been an American citizen for only 13 years at the time of his appointment; and who was not only Jewish, but also spoke with a thick Jewish foreign accent, was an unlikely event, to say the least, particularly at the height of the turmoil of the Reconstruction era.
McKinley’s advisors raised all these issues with the president, including specifically Trieber’s Judaism, but the undeterred McKinley made the courageous and risky appointment anyway, making the 25th president one of the great unsung heroes of Jewish American history.
McKinley also named a Jew, Jacob Hollander, as Puerto Rico’s first treasurer in 1900, and he became famous for laying the cornerstone of the Washington Hebrew Congregation and bringing his entire cabinet to the ceremony on September 16, 1897. This remains the only time in American history that a president and his entire cabinet were present for a synagogue service.
The anti-Semitism that Trieber experienced in his youth in Prussia had an enduring effect on his life and played an important role in his fight against racism and discrimination, both as a politician and on the federal bench. His critical ruling broadly interpreting the scope of the 13th Amendment proved prescient: Originally overturned by the post-Reconstruction Supreme Court, it was validated 65 years later in a landmark 1968 equal opportunity case in which the high court formally adopted both Trieber’s ruling and his reasoning.
In 1866, at age 13, Jacob, the descendant of respected rabbis and community leaders, had fled anti-Semitic Prussia with his family for St. Louis before moving to Helena, an Arkansas delta town, in 1868, where his father opened a dry-goods store, with young Jacob serving as bookkeeper. Helena had a small but growing Jewish community, and the family became active in the Beth El Congregation, a Reform temple that had been founded only a year prior to their arrival. (The temple closed in 2006.)
Trieber studied law on his own, was admitted to the Arkansas Bar in 1876, and established a very successful law practice. Believing in a strong federal union, in the supremacy of the U.S. Constitution, and that pro-business policies were good for Americans in general and blacks in particular, he became active in the Republican Party in 1874. He was awarded a medal by President Grant – which was struck using metal from the last cannon to be fired at Appomattox – for his support of Grant at the 1880 Republican Convention.
Thereafter, Trieber was soon elected to a number of positions, beginning with his election as a Helena councilman in 1882. After serving in a variety of public positions – and after losing races for Arkansas attorney general in 1884, the U.S. Senate in 1891, and as chief justice of the Arkansas Supreme Court in 1896 – he was appointed U.S. Attorney for the Eastern District of Arkansas, the so-called “moonshining district,” and moved to Little Rock in 1897.
As U.S. Attorney (his popularity was such that many citizens referred to him as “our Jake”), Trieber confronted an America that would allow prejudice and injustice against its citizens, and he sought to lead Arkansas in righting historical wrongs.
He drew significant attention for successfully prosecuting a white defendant who had murdered a black victim, and his consistent efforts to effect justice for blacks was striking, particularly in an era when violent attempts were being made to deny even basic civil rights to African Americans. In 1898, he dared – in an open forum – to attack longstanding Arkansas election laws for unconstitutionally disenfranchising black voters.
Upon ascending to the federal bench, Trieber became renowned – and, in some circles, despised – for leading the fight against institutionalized racism. Interestingly, as a traditional Jew who deeply believed in Jewish ethics, he was quoted as saying that he would give stiffer sentences to Jews convicted in his court because, as Jewish heirs to a noble and ethical tradition, they knew or should have known that their acts were criminal. (How that judicial approach would be viewed today is an interesting question best left for another discussion.)
Trieber’s broad interpretation of 13th Amendment guarantees was particularly manifest in U.S. v. Hodges (1904), where 15 “whitecappers,” members of a group which essentially replaced the outlawed Ku Klux Klan, were charged with forcing sawmill owners to fire their black workers, and in the contemporaneous U.S. v. Morris, were terrorism charges were brought against other whitecappers. In his famous opinion in Morris, he ruled that the right to accept employment is a fundamental constitutional right, and the whitecappers were convicted.
However, in arguably one of the most shameful decisions in Supreme Court history, the high court overruled him, a decision which led to years of discrimination and tragedy until the enactment of the Civil Rights Act of 1964, which led to the Supreme Court to reverse its Hodges decision.
In Jones v. Alfred H. Mayer Co. (1968), the Court made a point of adopting Trieber’s visionary ruling from 64 years earlier, noting that he had been the only federal judge ever to consider the issue of the constitutional right to employment. The Court wrote: “Judge Trieber’s interpretation of the Thirteenth Amendment and the Civil Rights Act of 1866 was at last vindicated.”
Trieber also played a crucial role in broadening the use of federal writs of habeas corpus, pursuant to which a person alleging that his detention was unlawful must be brought before a judge, who must order his release in the absence of lawful grounds for the detention. Trieber’s ruling led to a Supreme Court policy of stricter scrutiny of state criminal trials and increased oversight by the Court of state court convictions, particularly of black defendants.
President Taft, who had great respect for Trieber, appointed him a senior district judge in New York in 1927 to try special cases. That high opinion is also manifest in this June 15, 1925 correspondence which Taft wrote on his Supreme Court letterhead (he is the only president to also serve on the high court) in which he characterized Trieber as a “reliable and exact authority”:
Judge Dantom attended the Senior Circuit Judge Conference in Washington last week. He told me you had written an article on the effect of the Act of February 13th 1925 on the jurisdiction of the Circuit Courts of Appeals. May I ask you to do me the favor of sending me a copy. I have to write an article on the subject of the act for the Yale Law Journal and I would be willing to plagiarize from so reliable and exact an authority. I hope that you are well, that the great heat has not injuriously affected you, and that you are not working too hard.
The February 13, 1925 Act amended the statutes controlling the appellate jurisdiction of the Supreme Court and the Circuit Courts of Appeal. With significant input from Trieber, Taft did go on to publish The Jurisdiction of the Supreme Court under the Act of February 13, 1925 in the Yale Law Journal, Vol. 35 no. 1 (November 1925).
Trieber also maintained a close relationship with other presidents besides McKinley and Taft, including Theodore Roosevelt, as evidenced by this February 4, 1908 correspondence from Roosevelt to Trieber:
I have just received your very interesting letter and greatly appreciate your courtesy in writing. I shall go over most carefully all that you say.
With regard, believe me,
Roosevelt’s letter here may be in response to one of several letters from Trieber expressing concerns about the situation of blacks in the south. He later met with the president to discuss the issue.
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As per his request, Trieber was buried in a Jewish cemetery at Congregation B’nai Israel in Little Rock.