This week’s Torah portion begins: “You shall appoint justices and officials for your tribes, in all the settlements that the Lord your God is giving you, and they shall judge the people with due justice. You shall not judge unfairly: you shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the plea of the just. (Deuteronomy 16:18-19)
Last week Elena Kagan became a Supreme Court Justice. In affirming this duty she took the following oath of office, “I, Elena Kagan do solemnly swear that I will administer justice without respect to persons, and grant equal rights to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Associate Justice under the Constitution and laws of the United States. So help me God.”
There is a great deal of confluence between our American system of justice and that of the Jewish tradition. Both begin with a written text: the Constitution and the Torah. Both are dependent on interpreters (judges and rabbis) to explain how we are to live by their laws. In order for an ancient text to remain relevant it must be open to interpretation.
The Torah prohibits work on Shabbat. The rabbis spent centuries interpreting the definition of prohibited work. The Torah forbids the “boiling of a kid in its mother’s milk.” The rabbis determined that this means you cannot eat a cheeseburger, must wait hours before eating milk products after eating meat and that you must have separate meat and milk dishes. The Torah commands tzedakah. The rabbis interpreted to whom we must give and how much we should give. The Torah offers the famous phrase, “an eye for an eye...” The rabbis developed the principal of compensatory damages. There is much in the Torah that requires interpretation for us to live by its words.
The Supreme Court interpreted the fourteenth amendment to provide a right to privacy that is the basis for our laws permitting abortions. Decades of Supreme Court rulings clarified how capital punishment does not transgress the clause of “cruel and unusual punishment.” Again it was the Supreme Court that interpreted our laws to say that “separate but equal” is false and that racial segregation has no place in public education. During her confirmation hearings many questions were asked of Elana Kagan dealing with her view on judicial precedent. Why? It is because our system is built on accepting prior court precedents. To overturn a previous Supreme Court decision is a radical step. To do so implicitly attacks the system of interpretation and its interpreters. Gershom Scholem suggested that in a text based tradition innovation must be dressed up as interpretation.
It is therefore curious that liberal Jews argue against many rabbinic interpretations of Torah law, suggesting that the rabbis went too far in their interpretations. They use the words of the self-conscious Talmud against itself, arguing that the laws of Shabbat are indeed a “mountain suspended by a thread.” Centuries of interpretations obscure the core ideas contained in the Torah. Conservatives argue that the authors of the Constitution never intended a right to privacy, the Miranda warning, or such a stark and absolute line between religion and state. Interestingly, conservatives argue against what they view as judicial activism in Supreme Court rulings while viewing the Talmud as authoritative in their Jewish lives. Liberals on the other hand argue against centuries of rabbinic precedent but in behalf of such Supreme Court interpretations. What are we to make of these apparent intellectual inconsistencies? When do we rely on the interpreters and their interpretations? And when do we hearken back to the intent of the original text?
I pray that Associate Justice Kagan, along with her judicial colleagues, interprets our Constitution in a manner that serves the public good. I pray that our country might live by the Torah’s words, “Justice, justice shall you pursue, that you may thrive and occupy the land that the Lord your God is giving you.” (Deuteronomy 16:20)