The prospect of an entirely reshaped U.S. Supreme Court makes it important that Americans have a serious conversation about our constitutional system. Jewish tradition can make a significant contribution to that conversation.
When Moses creates the first Jewish judiciary, God instructs him to appoint “men of strength, in awe of God, men of truth, haters of corruption” (Exodus 18:21). The first lesson Jewish tradition teaches is that judicial character is more significant than judicial politics.
Today’s nominees will likely make their most critical decisions about issues that do not yet appear on the legal horizon. What matters most is not their specific positions but their temperament and understanding of the responsibility of the court. The purpose of a constitution is to place basic principles beyond the reach of the powerful.
The second lesson Jewish tradition teaches consists of a model for the long-term success of a text-ordered society. In Judaism, texts restrain power through authority, and texts gain authority because they have meanings that are discovered rather than produced by their interpreters.
When judicial rulings are perceived as reflecting judges’ political opinions rather than painstaking scholarship, they lose their authority. Thus the public perception, justified or not, that Gore v. Bush was decided on the basis of party affiliation cost the Supreme Court tremendously.
The Talmud records similarly that the Great Sanhedrin’s capacity to prevent disputes in Israel ended when its members were perceived as ruling on the basis of affiliation with the School of Hillel or the School of Shammai rather than on the basis of individual judgment.
Gain and loss
The third lesson is that even though the Torah exhorts us to care for the poor, nevertheless it bans favoring them in legal disputes (Leviticus 19:15).
Over much of the latter 20th century, the federal judiciary tended to be more liberal than the electorate. Liberals have accordingly sought to expand the discretion of the courts, especially with regard to constitutional interpretation.
Some of the important advances of the civil rights movement were made possible by these theories. The liberal gains, however, enabled by creative but intellectually unconvincing readings of the Constitution, have made the text less capable of resisting political agendas.
The fear inspired in liberals by the prospect of a conservative Supreme Court brings home the price that has been paid for those theories. If the text of the Constitution were seen as controlling, the political leanings of potential justices would have far less potential effect.
Jewish tradition offers a straightforward if difficult prescription — stick to the traditional meaning of a text except when urgently necessary. The Talmud celebrates legal adaptation, but maintains its received lore with almost fanatic obsession with detail.
When teaching rabbinic students, I gradually bring them to the realization that authoritative interpreters have nearly absolute power over texts, and that real creativity is possible. At the same time, I teach them that this power must be used with extreme caution. If a text can mean anything, it means nothing.
Sometimes one must reread the text and find new wine in old barrels through legitimate legal interpretation.
After the destruction of the Second Temple, the rabbis of the Talmud found creative ways to compensate for the loss of the sacrificial order; and in medieval times, rabbis found creative ways to justify commercial transactions banned by the plain meaning of the Talmud. But this creativity took place against a static traditional background.
Crucially, the rabbis were continuously aware that their capacity to innovate stemmed from their predecessors’ resistance to innovation and their own reliance on precedence.
They realized that judicial discretion is not an easily renewable resource, but rather a capital account built up by years of judicial restraint. When they used this resource, they spent it carefully and wisely.
Finally, the rabbis understood that the authority of law, and its capacity to protect the weaker members of society, depends on a combination of judicial humility and self-confidence.
The Talmud teaches that the Torah cannot be properly learned by any but the humble.
Yet, it saw excessive rabbinic humility in a time of crisis as causing the destruction of the Second Temple. The complex task of a judge is to be exceedingly humble without being excessively so.
At nomination hearings of any potential Supreme Court justice, the question we should be asking is not whether he or she agrees with our political positions.
Rather, Jewish tradition teaches that we should be asking whether that individual has the humility to bow before the text and its history of authoritative interpretation, and has the character, self-confidence and ingenuity to stand against that history when necessary to preserve the authority of the text.
Rabbi Aryeh Klapper teaches Talmud at the Gann Academy in Waltham, is dean of the Somerville Beit Midrash and a member of the Boston Beit Din. He is also a member of the op-ed editorial board of Edah, the advocacy group for Modern Orthodoxy, which provided this article.
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