Human Rights

The Rabbi and The Supreme Court Justice

ScaliaBl_books On Monday night I had a little debate with Supreme Court Justice Antonin Scalia.  I was worried that after the debate, my wife Lauri might decide she can’t take me anywhere–it was at a program for the law school she teaches for–but I thought it was fun.

After dinner and a few short remarks, Justice Scalia opened the floor for questions.  Now to understand the discussion, you have to know a little about Justice Scalia.  He’s definitely on the right wing of the Supreme Court–he’s often described as the “intellectual anchor of the Court’s conservative wing.”  He’s what’s called an “originalist:” when determining whether or not something is Constitutional, originalists hold that you should go by what was the original intent when the Constitution was first approved.  This puts him in opposition with the “evolutionists” who maintain that our understanding of the Constitution can evolve over time, as our society’s needs evolve–the “Living Constitution” model.  Justice Scalia would respond that if you want to “evolve” the Constitution the only way to do that is through a Constitutional amendment.

Personally, I’m something of an evolutionist when it comes to both secular law and Torah law.  The Constitution — or the Torah — may provide the basis for the legal system, but our understanding of those foundational documents–and the way we apply them–must be understood within the framework of the times we live in.  To use an extreme example, the intent of the 2nd Amendment (the right to keep and bear arms) may have been that citizens should be able to own any kinds of weapons they want.  It’s one thing to have such a principle when the most powerful weapon in the world is a cannon, and the most powerful cannons are unwieldly and large.  But is that same principle a good idea in an era when a nuclear weapon that can fit in a suitcase is a real possibility?  Somehow I don’t think so.  And I suspect even Justice Scalia might agree.  So it all becomes a question of how you interpret the law.

Another interesting bit of background: Justice Scalia is a practicing Catholic, and in his rulings he has supported the rights of Jews to practice their religion — more so than some of the secular Jews who sit on the Supreme Court!

There was a case a few years ago (Board of Education of Kiryas Joel vs. Grumet) when the residents of Kiryas Joel, a community of Satmar Hasidim, wanted to use state funds to build a school specifically to serve the “special education needs” children in their community.  The majority of the Supreme Court ruled it was not permissible, because to do so would violate the “establishment clause” of the Constitution, which says that the government will not do anything to establish one particular religion as the religion of the country.  The majority held that to allow the Satmar to build a special school for their kids with state funds would be violating that provision.  Justice Scalia’s minority disseent is one of the “smarkiest” pieces of judicial writing you are likely to encounter: “The Court finds today that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim. I do not know who would be more surprised at this discovery: the Founders of our Nation or Grand Rebbe Joel Teitelbaum, founder of the Satmar.  The Grand Rebbe would be astounded to learn that after escaping brutal persecution and coming to America with the modest hope of religious toleration for their ascetic form of Judaism, the Satmar had become so powerful, so closely allied with Mammon, as to have become the establishment of the Empire State.  And the Founding Fathers would be astonished to find that the Establishment Clause–which they designed “to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters,”–has been employed to prohibit the characteristically and admirably American accomodation of the religious practices (or more precisely, cultural peculiarities) of a tiny minority sect…”

The question I posed for Justice Scalia was what do we do when principles from the Constitution conflict? On the one hand, as he had pointed out earlier in the evening, the 8th amendment allows for capital punishment.  On the other hand, there is clearly a strong concern about the possibility of punishing an innocent man — hence the standard of evidence in criminal cases is “beyond a reasonable doubt,” whereas for civil cases it’s simply a “preponderance of the evidence.”  So, I asked, would it be fair game for the Supreme Court to put in place sufficient procedural barriers to avoid the possibility of executing an innocent man as to effectively render capital punishment inoperative?  Justice Scalia argued no–and he presented arguments that were actually not really on point about the Constitutionally of mandatory death sentences for particular types of crimes.  Not being one to sit down and shut up after receiving an unsatisfying answer to a question, I made it a little bit of a debate with a follow up:  to make clear what I was getting at, I allowed as to how I wasn’t a lawyer, I was a rabbi and more expert in Jewish law than secular law–to which he replied something like “Thank God,” which I wasn’t sure how to take–and I opined as to how the rabbis were “originalists” regarding the Torah (after all, it comes from God!), yet they effectively eliminated capital punishment through procedural barriers.  Justice Scalia replied “I know about those rabbis–the Sanhedrin would declare a mistrial if they voted unanimously to condemn someone to death because they assumed there must have been something fishy going on!”  The implication seeming to be that this was really going too far.

We did a little more back and forth, but his conclusion is that the Court has done exactly what I suggest–installed “excessive” process barriers to capital punishment, and he opposes it–he says that the due process that was originally installed is sufficient.  If I could have continued the debate, I would have pointed to the State of Illinois implemented a moratorium on capital punishment because DNA testing found there were innocent people on death row.  Obviously the “due process” that had been put in place was NOT sufficient to prevent a potential travesty of justice.

Justice Scalia’s presentation did not convince me of the wisdom of being an originalist, and I’m equally certain I didn’t move him a millimeter in the other direction.  But it was an interesting debate, and a couple of people came up to me afterwards and said “I’m with you rabbi!”  Lauri was impressed that I came out with my skin intact — a non-lawyer debating a Supreme Court justice?  She compared it to an unarmed person being sent into the arena against both the lions and the gladiators at the same time.

Maybe I should go to law school so I can argue cases of human rights in front of Supreme Court justices for real!  🙂

Barry Leff

Rabbi Barry (Baruch) Leff is a dual Israeli-American business executive, teacher, speaker and writer who divides his time between Israel and the US.

13 thoughts on “The Rabbi and The Supreme Court Justice

  • I tend more towards an originalist view of the constitution myself. I would support an amendment repealing the second, but I don’t see any reason we should be able to just ignore it.

    Similarly, the evolutionist perspective on the first amendment has gotten us to the point where dancing naked on a table is protected political speech, but putting an ad on TV saying ‘Vote for Jim’ 2 weeks before an election is not.

    Did you know this article has been mentioned on ReligionClause?

  • I opined as to how the rabbis were “originalists” regarding the Torah (after all, it comes from God!), yet they effectively eliminated capital punishment through procedural barriers.

    Is it explicitly stated anywhere in Sanhedrin that the requirements of two witnesses, warning in advance and receiving a reply, etc. were rabbinic legislation? My own very limited study of the topic seemed to show that they were all d’oraita regulations.

    Additionally, the Sanhedrin was a combined legislative/judicial body. In the US, I think that Congress is the correct vehicle for such legislation – e.g., passing a law requiring an affirmative DNA test as a pre-requisite for a death penalty conviction. I don’t think the courts should do such a thing.

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  • To what “secular Jews” on the Supreme Court do you refer? It was only after the arrival of Justice Ginsberg that the Court stopped having argument on High Holy Days. And I saw Justice Breyer in a yarmulke at the AIPAC meeting on C-SPAN. All indications are that they are both observant Jews.

    To say you’re secular if you don’t support Kiryas Joel is really beyond the pale (or perhaps reflects a desire to return to the pale). Suppose there were a village of Moslems who wanted to form a town so they could use secular power to enforce Sharia law? I doubt you would be so supportive. But that was approximately the situation in Kiryas Joel.

    All the children attending regular school in Kiryas Joel attended private religious school. But the special ed kids went to a nearby public school because financial aid for them is not provided to private religious schools. The parents, however, were opposed to co-education and feared their children would be discriminated against for their distinctive dress. So they sought to form a school district that would be for their children only and be run to their religious views. And this the government cannot do.

    The founders of this country found religion to be a divisive force and set about dividing the religious from the secular spheres, allowing full freedom to practice within the religious sphere but no support of religious practice within the secular sphere. Obviously, other countries have drawn different lessons from history. But the same law that allowed Kiryat Joel to form religous schools prohibited the state from sponsoring them.

  • By her own admission, Justice Ginsberg is not religiously observant. In Abigail Pobregin’s book “Stars of David” she said she is not religiously observant but said her Judaism matters greatly to her. There are many secular Jews to whom their Judaism is important.

    As to Justice Breyer, he not only intermarried, his children were raised as Christians–his daughter is an Episcopal priest. Wearing a kippah does not make you observant. Plenty of completely secular Jews will put on a kippah when they happen to attend a religious ceremony or in a particular context.

    I was not, by the way, commenting on the merits of the Kiryas Joel case as that wasn’t my point — the point was, regardless of the merit, the Catholic sided with the Jews, and the Jews supported the “secular establishment.” It’s a debate for another time whether that’s the best answer…

    Reb Barry

  • Daniel J. Artz

    I have to admit that I am squarely on the side of Scalia in the debate between originalists and “evolutionists”, or those who believe in a “living Constitution”, and the reason is because those on the evolutionary side of the debate invariably focus on the wrong fundamental question – whether the Constitution should evolve to meet changing social, economic, and technological conditions. The answer is much too obvious, of course the Constitution needs to adapt. But the truly fundamental question is not whether the Constitution should adapt, but who has the authority (note I did not say power – the Supreme Court has the power to rewrite the Constitution in any way that 5 Justices might be willing to agree, but power and legitimate authority are not the same thing) to agree to the adaptations which many might agree are necessary. The simple answer to that question is in the Constitution itself — it is NOT the Judicial branch, it is NOT the Supreme Court, it is NOT even the Legislative or Executive branches of the Federal Government; it is “We the People”. This does not mean that I oppose the exercise of Judicial Review; quite the contrary, judicial review, i.e., the power to strike down a law as unconstitutional did not first arise in Marbury v. Madison, as many suppose, it was expressly contemplated in the Federalist Papers (I do not recall exactly which one – I think Federalist 49, but I could be mistaken), where the author (John Jay? or possibly Hamilton) noted that the Judicial Power included the authority to refuse to enfore any law which was contrary to the clear meaning of the Constitution. But, since the late 60’s, and especially Griswald v. Connecticut and Roe v. Wade, the Supreme Court has shattered the chains which tied the power of judicial review to the text of the Constitution, and has abused that authority to rewrite the Constitution to fit the personal preferences of a majority of Justices. As a policy matter, should the States completely outlaw abortions, ban the sale of contraceptives, or outlaw homosexual conduct? In my own opinion, each of these policy decisions is foolish and unenforceable, not to mention offensive to my own libertarian desires. But the Constitution does not leave those decisions to me, and it does not leave them to the Supreme Court either — it leaves them to the People. If we want to have a Constitutional Right to Privacy, which I think is a very good idea (depending, of course, on the precise parameters of that right; it should not shield fathers or stepfathers from prosecution for molesting their own children, even if it does occur in their own homes, nor should it make investigation of crime so impracticable that we are overrun by the Mafia and the Drug cartels), then the way to get it is to adopt a Constitutional Amendment as provided in Article VI. Any Supreme Court imposed amendments to the Constitution are simply illegitimate, the bastard children of usurpers of popular authority.

  • Ben Kennedy

    Originalism provides a principled basis for striking down laws by pointing toward the decision of a past super-majority. Because of this, no one can complain that such a decision is “unfair” because the authority for the court’s action is rooted in a democratic process – either the legislative process or the Constitutional amendment process. Originalists have no qualms about projecting the original meaning of the laws into the 21st century. Justice Thomas would not argue that the word “commerce” should apply only to the commerce of the late 1700s. Obviously it takes a great deal of skill and wisdom to do this properly.

    On the other hand, under the “Living Constitution” approach, laws can be struck down for reasons outside of the original meaning of the Constitution. This is accomplished by (more or less) divorcing the *meaning* of the Constitution from the *text* of the Constitution. The text obviously does not change through time, but the meaning can expand in ways ultimately unsupported by the text itself. When this happens, the agent of effective Constitutional change is not a democratic amendment process, but a very undemocratic judicial ruling. This is a very odd way of interpreting a legal document.

  • I recently also had occasion to engage Mr. Justice Scalia in conversation under similar circumstances and somewhat to my chagrin (being diametrically opposed to him politically, philosphically, religiously, and in all other ways I can imagine) found him to be personally genial and charming.

    Two specific responses to your post:

    You write “To use an extreme example, the intent of the 2nd Amendment (the right to keep and bear arms) may have been that citizens should be able to own any kinds of weapons they want.”

    Well, no, in fact there is no basis (or rather, none generally recognized as reasonable) to characterize the original intent of the second amendment as having been to allow citizens to own any kinds weapons they wanted. As a matter of well settled constitutional law, its application has been limited to state militias, which though prevalent at the time of the founding (notably in the South, where they were considered crucial for their utility in suppressing slave revolts) have since become largely defunct.

    To your point about the tension you hypothesize between Due Process and the Eighth Amendment in the context of the death penalty, even the staunchest Due Process advocate would not go so far as to cast them as a 100% guaranty against erroneous conviction. Among the procedural safeguards encompassed within Due Process protections, is the requirement that the state demonstrate criminal guilt beyond a REASONABLE doubt.

  • The attorney general seems to think the 2nd Amendment refers to individual gun ownership. From the NRA web site:

    A recent memorandum opinion for the U.S. Attorney General states:

    “For the foregoing reasons, we conclude that the Second Amendment secures an individual right to keep and to bear arms. [O]ur examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views.”

    And of course, reasonable men can differ over what it is “reasonable doubt.” How many innocent people are we willing to see sent to the gallows? 1 in 100? 1 in 1000?

    And I agree, Justice Scalia is genial, charming, and very bright. An excellent speaker, whether or not you agree with him!

  • Daniel J. Artz

    Actually, the Attorney General is not alone in thinking that the Second Amendment protects individual, as opposed to group rights. The D.C. Circuit Court of Appeals thinks so, as well. In fact, only the 9th Circuit has expressly held to the contrary, and its legal and historical analysis was no where near the quality of the D.C. Circuit’s panel opinion.

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  • Here’s an interesting article about another speech by Justice Scalia on the same topic. A quote relevant for Jewish Jurisprudence:

    “Now I have nothing against formulaic abstractions — otherwise known as rules,” Scalia said. “They’re the means by which judicial arbitrariness is checked.

    “But unless it is thought that the most fundamental laws of our society were meant to be made up by judges, these formulaic abstractions ought to be rooted in, ought to be derived from, the text of the Constitution, and where that is in itself unclear, the central practices that the text represents.”

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