August 29th: Shof’tim
THIS WEEK IN THE TORAH
Rabbi David E. Ostrich
Our Torah portion begins with a demand that public affairs be conducted honestly: “You shall appoint magistrates and officials for your tribes, in all the settlements that the Lord your God is giving you, and they shall govern the people with due justice. You shall not judge unfairly; you shall show no partiality; you shall not take bribes, for brides blind the eyes of the discerning and upset the plea of the just. Justice, justice shall you pursue, that you may thrive and occupy the land that the Lord your God is giving you.” (Deuteronomy 16.18-20)
Though public officials are generally “in charge,” we citizens pay attention and often find ourselves in animated discussions about the way public affairs are conducted. And among our concerns is the way our Justice System operates—whether and how it follows the Biblical mandate of, “Justice, justice shall you pursue.” (Though from a religious text, this mitzvah is certainly a part of the same “self-evident truths” that grounded our Declaration of Independence. It is a universal standard that transcends denominations and to which all should be held.)
Thus, do we often find ourselves wondering about some of the decisions our modern American Shoftim/Judges render. Civil Rights advocates certainly wondered about Plessy vs. Ferguson’s approval of “Separate but Equal” public education. Conservatives were shocked and concerned over the “Judicial Activism” of the Warren Court. And for a variety of controversial decisions in recent years—Citizens United vs. Federal Election Commission, Shelby vs. Holder, Obergefell vs. Hodges, Dobbs vs. Jackson Women’s Health Organization, the Judiciary’s rulings have attracted a lot of attention, analysis, and heat. Is Justice being pursued, and what is our role in it?
Years ago, political commentator Rush Limbaugh encouraged his listeners to demonstrate outside of the Supreme Court—to push the Justices to a particular conclusion. I remember being quite angry at his advice, seeing in it a fundamental misstatement of our Constitution’s Separation of Powers. The Court is supposed to rule on the Law and not to court public opinion. Unfortunately, the late Mr. Limbaugh was not the only person who thought of the Court in this manner. This kind of rhetoric shows up all the time—even though it is civically mistaken.
If we are unhappy with a judicial ruling—be it a traffic ticket, criminal case, or something at the Appellate or Supreme Court level, there are three types of objections/questions to pose:
(1) Were the judges corrupt—taking bribes, pandering to powers, letting personal agendas overrule the Law?
(2) Were the legal principles applied correctly—or did the judges/justices ignore important and countervailing legal principles or precedents?
(3) Or are we just unhappy with the ruling? Are our “philosophical” objections more expressions of anger than logical discussions of the Law?
There is always the possibility of corruption. My teacher, Dr. Jacob Rader Marcus, used to teach that laws are written for precipitating reasons—that someone somewhere must have behaved dishonestly or inappropriately—and that any law telling us to be honest and fair must have been written to guide us and restrain our less-than-noble tendencies. However, dishonesty is not the only reason one side loses a case. There could be (usually are?) legitimate legal bases. If we really believe that fairness is important, then we need to separate our anger and disappointment from the logical discussion of legal principles and applications.
One of my old classmates, Law Professor and Dean Erwin Chemerinsky, has been unhappy of late with many Supreme Court opinions, and his dissenting columns often appear in the Centre Daily Times and other newspapers. However, he and other legal scholars (like Noah Feldman) generally stick to the Law—discussing the legal arguments and not merely complaining that their side lost. Like the dissenting opinions written by Supreme Court Justices, these arguments are disciplined and dispassionate and contribute to the development and rule of Law.
This is markedly different from much political speech and writing that decries (or praises) judges and their decisions based on how the decisions affect various groups or individuals. If we are unhappy with policies, it is the Legislature which must change the Law. The Court system’s responsibility is not to write Law, but rather to rule on whether it is being followed and applied.
A public display of this issue came up during the Confirmation Hearings for now-Justice Brett Kavanaugh. When it was her turn, then-Senator Kamala Harris criticized Judge Kavanaugh’s judicial opinions because he was not a Champion of the Poor: he had sided with wealthy corporations in cases involving poor people. For the future Vice-President, preparing to run for office and having a moment on national television, being a Champion of the Poor was important. However, it is not appropriate for a judge to take into consideration the relative wealth or poverty of litigants. As the Torah warns us: “You shall not render an unfair decision: do not favor the poor or show deference to the rich; judge your kinsman fairly!” (Leviticus 19.15)
Though from a religious text, this Biblical standard seems pretty ubiquitous—“self-evident” and universal. Tzedakah/charity is clearly a vitally important mitzvah, but the courtroom is not the place for it. The courtroom is the place for procedure and fairness—for championing the Law and not favoring the poor or showing deference to the rich. The mitzvah of helping the poor is properly performed in other arenas—in social policy or charitable giving—and not in a place dedicated to the Law. This division of realms is crucial to our system, and it can often be seen when judges themselves work in both worlds—ruling on the Law in their courtrooms and engaging as private citizens in civic and charitable efforts. Both realms should be respected—and kept discrete. So, though there may have been other legitimate criticisms for then-Judge Kavanaugh, his judicial opinions on matters of Law—especially since they were on the Appellate Level—should have only been evaluated in re legal issues.
Many of us may not like to see Vice-President Harris and Rush Limbaugh mentioned in the same sentence, but I believe that both were laboring under a mistaken understanding of the way the court system is supposed to work. The role of the justice system is to rule on the Law. If we are unhappy with its results, our system provides elections to affect both the Legislative and Executive branches. Though we may yearn for a “white knight” to rescue us, each branch is supposed to “stay in its own lane.” The Torah’s command of “Justice, justice you shall pursue” is multivalent. There is a lot of work to be done, and there are many roles—with both possibilities and limitations—in our holy and long-term project.