Dear Justice Kavanaugh – Impact and Intent

December 8th, 2021

Dear Justice Kavanaugh,

Thank you for your public remarks with reference to a number of landmark cases. I’m an avid proponent of legal analysis that takes place on multiple levels. Original intent must be discussed alongside of the potential, modern uses of a law to determine desirable expansions or limits upon these mandates. It’s best to postulate diverse outcomes in advance of errors taking place as laws are adopted.

I’m a second generation New Yorker, the granddaughter of refugees from Eastern European shtetls and a slave in Lenin’s army. My ancestors always lived under ‘settled law’, more than 3,000 years old. Apart from attacks by the majority community outside Jewish towns, there was little crime and disputes were arbitrated by legal scholars known as rabbis. Under harsh conditions, my grandparents made their way to New York in order to raise children and mystify their grandchildren with (limited) tales of our history. The purpose of these learned men and women taking passage to America was not to enter a Republic but to acquire access to Constitutional Law and economic opportunity. History demands that civilized persons be able to separate law from economics.

My own childhood was bubble-wrapped to avoid the sharp edges of New York muggers, sexual predators and parental fears of an uncertain future. Introduced to human misery at an early age, I went to synagogue where the gauzy sleeves of summer wardrobes revealed the tattooed forearms of Holocaust survivors in the women’s section where I prayed every Sabbath.

The men were mostly WWII and Korean War veterans. My father brought myself to his workplace in Manhattan show myself the areas where the homeless slept nearby the automats. There, the poor had soup bowls of hot water, tomato ketchup and crackers for a “free meal”. Of limited means ourselves, I saw my father write checks every few months to his chosen charities outside of our neighborhood – AmVets and the Hebrew Home for Orphaned Girls in Brooklyn. Government was not the answer to every problem in our home but law was of great import. We already had the commandment to feed the hungry, shelter the homeless and clothe the naked.

Please also note that I was most grateful to the US government during my working years (from twelve to forty-five years of age) for accommodating conflicts between your laws and Jewish law. I was a conscientious objector to the jury system due to my need for a stronger standard in matters of evidence and how to determine ‘innocence’. Life is sacred while liberty a matter of definition – ‘par’ or ‘standard’? Life is not a golf game and I’ve worked hard ion that distinction since becoming disabled in my mid-forties.

Your remarks surrounding the importance of judicial review were a great comfort to myself, a former health care professional. Please remind your critics that hospitals regularly hold “M&M” conferences. This acronym for discussions of “mortality and morbidity” are vital in determining whether errors took place. The meetings were held within a non-threatening setting for honest review. In the case of a Supreme Court, judicial review is vital as long as discord remains as to the desirability of the legal judgment. Even courts need an “M&M” review of settled law when history or technology allows new possibilities for human misconduct.

Your summaries of the import of certain cases exemplifies the dividing line in Constitutional matters. In a most welcome return to this debate, your interpretation of the Hotel West case asserted a governmental right to regulate business. The intent of the founding ‘fathers’ to protect citizens from unnecessary taxation was the premise I saw shouting from your summary instead. “No taxation without representation.”, was the phrase known to the authors of the Constitution.

Let’s look at the case itself.

Hotel West V. Parrish led to a judgement that the minimum wage set for males in 1936 must also be applied to women. Why interpret this excellent judgement as a means for the State to regulate business? Instead, let’s review post-Depression aid to American families. County relief was a hit and miss affair based upon transient factors and local tax-payer preferences for destitute residents. Often referred to as “Mother’s pensions”, payments were generally made to feed children for eleven dollars a month. Roosevelt later developed a national welfare system in 1935 with additional supports in old age for workers.

The Supreme Court might have affirmed the idea of a minimum wage in defense of tax-payers who would have to fund those without a “living wage”, as Samuel Gompers described it in 1898. Rather than regulate business, the West Coast decision allowed businesses the freedom to pay fair wages to all employees. Business owners would not be subject to industry pressures to limit salaries to below-subsistence levels. That form of imprisonment was common at the start of the industrial revolution when workers themselves were commodities. This decision protected tax-payers’ contributions from preventable loss to more important purposes, like education and defense.

The interpretations are of great import as minimum wages rise and undercut employer discretion to offer business-specific employment agreements. Higher wages lead to poorer benefits packages or even the substitution of contract workers for full-time staffers. Does this case regulate or protect? The question itself leads to a different result in the use of this case over time.

You noted that the regulation of “self-image” was the goal of desegregation in Brown V Board of Education. I doubt the white students would alter their self-image either way. In actuality, the inequities lay in the means of funding for white versus black schools. These inequities continued into the era of school-funding via property taxes. Integration was a by-product of the financial difficulties more equitable funding strategies would have imposed on tax-payers. High property taxes require retirees to sell their homes and limits natural integrative forced that operate in stable societies.

Self-image is a concept built by social contracts within and between family units. Fairness is created through legal contracts. Life is not inherently fair and I urged the use of religious civil law firms/courts to draft contracts in my last blog post


I doubt the few black children entering white schools under ‘60s’ desegregation took on a self-image from the other students. I was “bussed out” to a mixed school in Kindergarten as part of these exchange programs but my views were set in a home where my parents treated each person equally. My brother didn’t even know how to use skin color to describe another child, after a school-yard altercation in first grade. When asked with whom he’d had his argument, he replied, “… a little girl with lots of pig-tails.” My parents seemed hugely gratified at the implications of his statement.

Still, our color-blindness didn’t overcome the anti-Semitism we suffered from mixed groups of persons at school and in nearby communities. My first encounter with another (Caucasian) student in Middle School was to receive the information that all Jews were bitches and I was the worst he’d yet encountered. I didn’t even know his name yet but was identified by the Shield of David around my neck.

My views were shaped by the covenants of my ancestors and a view of law as a driving force for the sanctification of life and land. Therefore, government is a method of organizing life as opposed to organized crime. Thank you for the stimulating discussion that proves that law must be viewed from multiple angles – and both drafted and enforced by trusted individuals.

Barbara Roslyn Rubin

Categories: commentary

Leave a comment

Leave a comment

Feed / Dear Justice Kavanaugh – Impact and Intent