The Passing of Justice Scalia . . . and Halacha

Some days it is harder than others to try to fathom what the Almighty has in store for us.

Some will disagree, but most Orthodox Jews clearly feel that President Obama has, on the whole, not been a positive force for promoting values that are consistent with Torah and Judaism.   Although he has claimed to be the “the closest thing to a Jew” to have ever sat in the White House, and enjoys overwhelming support among non-Orthodox Jews, he has relentlessly pursued his agenda to “fundamentally transform” America in ways that are detrimental to the Jewish people, in our view.  From forcibly creating not only “daylight”, but a large and painful gap between his administration and support for Israel; through pushing though a disastrous deal with Israel’s existential enemy Iran; and championing societal and cultural transformations in the nation that have served to greatly marginalize and weaken traditional moral values, his actions have been most distressing.  I believe that I am not alone in feeling relief over his growing irrelevancy during his lame duck year in office, glad to see the looming election and other matters crowding him off of the front page and reducing his influence while he still clings to power.

But then, all of a sudden, he was incredibly handed the greatest gift he could possibly hope for, on a silver platter.

Among the most important powers that a US President has is to nominate federal judges, particularly to the US Supreme Court.  The authority of those lifetime appointed justices to rule on crucial matters facing the country, extending for many years after the President who nominated them has left office, gives a President an unparalleled opportunity to leave his mark on the nation for a very long time.  By appointing Justices Elena Kagan and Sonia Sotomayor, Mr. Obama has ensured that strong liberal voices who agree with his world view will be on the Court for many years to come.

That is true with any Supreme Court appointment.   But when the totally unexpected gift was dropped in his lap; the opportunity to replace the relatively young and vigorous Justice Antonin Scalia on the Court, President Obama has been given a most potent tool to “fundamentally transform”  America in ways that even he could not have imagined during his last year in office.

The passing of Justice Antonin Scalia is a major, and most tragic, event.   

He was a true giant , towering over his colleagues in his intellectual ability, his powers of persuasion, and his courage to stand for judicial restraint by practicing the principles of textualism and originalism.  Justice Scalia was an enormously important hero to those of us who see the Constitution as the ultimate guarantee that we live in a Nation governed by a law of integrity, and not the whims of those who happen to be in power at the moment, be they judges, legislators or a President.   

Moreover, Justice Scalia stood for everything about constitutional interpretation that President Obama rejects, as evidenced by his overreaching use of Executive orders to circumvent the legislative process, his public scolding of the Supreme Court at his State of Union address, and his many statements to his notions of how the Constitution is a living contextual document that means what he and his liberal colleagues think it ought to mean.   To many liberals Justice Scalia was the arch-enemy of their agenda – the intellectual heavyweight who consistently revealed the falsehood of their attempts to change American society for the worse.

And now President Obama gets to replace him, presumably with someone who shares his own judicial philosophy.  (It is a nice dream, but I don’t believe the Republicans will be able to successfully block him from appointing a replacement during the almost full year he has left).   

It is truly the Irony of Ironies; It is a sad day for those who share my feelings about the Constitution and fear for the future of the Country.

Much of what you will hear about in the many articles that have been, and will be, written about this topic will focus on how this will be a victory for liberals over conservatives, as Justice Scalia was considered a great Conservative icon.  In my view, these analysis miss the main point of what is important here.

I have written at length to discuss the not well known but crucially important distinction that should be drawn between “Political” Conservatism and Liberalism, and “Judicial” Conservatism and Liberalism.   Justice Scalia was a true Judicial Conservative, but not necessarily a political conservative.   This is a very important distinction to understand (explained more fully in my previous article).  It seems to me that as an Orthodox Jew, we certainly ought to be judicial conservatives, even if some of us feel more drawn to liberal politics. Therefore, particularly as a Rabbi, I  feel it important to note what Justice Scalia’s teaching meant for us, and how we as a society would do well to keep his legacy alive and growing.

There are of course many major differences (at least according to the Orthodox/Traditional view) between Halacha and Secular law.  One of the most crucial differences is the source of the Law. Tradition teaches that Halacha is based on the revealed will of G-d as given to the Nation of Israel via the prophecy of Moshe Rabbainu (Moses) .  Rabbinic Law can expand upon and apply that Law, but can never change or abrogate it.  There is no possible “Amendment” that can be made to add to or detract from the Basic Law as we received it from Moshe.   All that can be done by poskim is to decide how best to apply that law to modern situations.

Conversely, Secular Law, particularly American Law, is Man-made.   It is, as formulated by Lincoln, “of the people, by the people, for the people”. It was made by humans in a certain place and time, and ought to be able to be changeable by humans of another place or time.   

However, the bedrock of American law is the Constitution, which was designed by the founders to govern and set limits for all subsequent law.  The Constitution is designed to be permanent, and amended, if at all, only very rarely and after overwhelming support from the entire Nation.  The Constitution has proven to be virtually the finest and wisest legal document that has ever been devised by Man.  Those who study it deeply are awed by the comprehensiveness and balance with which it was constructed, allowing it to be the basis for this great society’s accomplishments.  Many have considered it (at least partially) divinely inspired in its wisdom.  It has been the basis of this greatest democracy on Earth for well over 200 years, and has served as a guide for the society that has brought more liberty, equality, and prosperity to its citizens than any other in world history.

Both Halacha and Lehavdil secular law, rely on the integrity of those entrusted with applying it to society to be true to its core principles and to not be swayed by the popular and the expedient. While certainly different, the approach of a Great Posek and Talmid Chacham to the Halacha had much in common with the way Justice Scalia would look at the Constitution or a statute.   That is to say, one begins their legal analysis not with the result that one would wish for, but rather with a faithful understanding of the text.   What did the author(s) of this law want to teach us?  What did it mean in the context of when it was written?  What limits did the author(s) intend to place on the law's applicability?  Only after a fundamental understanding of the principle in its proper context, can it be properly applied to a contemporary issue or case, and only thus can one faithfully determine what the law ought to be.  Both the Torah, and lehavdil the Constitution, deserve to be treated with utmost respect. Implicit in that, is that one not read into the Constitution what is not there, in order to then allow, or forbid, some practice based on whatever reason or moral judgment one may have, no matter how important or strongly held.

By way of example, there is no discussion of modern concepts such as electricity or motors or machines in the Gemara.  This, however, is not a bar to analysis of all of these using Halachic principles. Briefly, there are 39 categories of Melacha; each of which has not just a particular meaning but a broad definitional principle (yesod) that can be applied to many other contexts.  And from a deep analysis of these concepts, we can faithfully apply and analogize classical Halacha to what is permitted or forbidden  on Shabbos, and to using electricity for baking machine matza, and to using electricity to pump water into a mikvah and hosts of other contexts.

Similarly, in deciding whether death by legal injection is violative of the Eighth Amendment bar agains "Cruel and Unusual Punishment" although there was no death by lethal injection in the 1780s.  One begins with the fact that at the time the Amendment was adopted, it was common and accepted practice to punish murderers by hanging; capital punishment per se was not considered illegal.   When lethal injection was introduced specifically in order to reduce suffering and cruelty, one ought to be able to reason as to whether this would have been forbidden by those who wrote that text, for whom hanging was not cruel nor unusual. Justice Scalia therefore argued that death by lethal injection thus was clearly not unconstitutional.

Jewish Law is to be applied – ideally by a Sanhedrin, or in its absence by great Poskim – based on precedent and rigorous Halachic analysis. They may not make any law that conflicts with Divine Law, which is eternal and unchanging; there is no “Amendment”-like procedure available. Rabbinic Law may change very rarely, limited to when there is a consensus among virtually all accepted great Halachic scholars of a time that a new idea or change in Rabbinic Law is warranted. The task of Poskim is not to come up with new law, but rather to apply the Received law to new situations, by finding the truest application of timeless principles and texts to the matter at hand. Innovations, or changes in our Mesorah or traditional practice, are extremely rare, and are completely out of the question for basic Halacha.

It is  thus that I feel a great loss with the passing of Justice Scalia and great fear in knowing that President Obama will now try his best to appoint someone who will undo his work.  I fear that this will be a moment of celebration for those who opposed what Justice Scalia stood for.  In particular, I fear that one more bulwark has been removed for those who see Torah and Halacha differently than I do, i.e. for those who do not see the Torah, and certainly Rabbinic Law, as faithful to a Divine Law. Rather, they see Jewish Law as being the product of human wisdom, perhaps written with some degree of divine inspiration, but ultimately human. To quote my neighbor down the street, Rabbi Gerald Skolnik of the Forest Hills Jewish Center on the recent LGBT decision, “we understand the Bible not as one divinely revealed-at-Sinai unified document, but rather as a product of different Biblical authors . . .[who] endeavored to translate the nature and content of the revelation at Sinai, whose exact content we are not privy to, into a system of behavioral and moral guideposts for the Jewish people”. All the more so they see the Constitution as the product of human genius, which ought to be adaptable to change if contemporary culture and values lead to different conclusion.

It is thus vitally important for we who hold the Halachic process sacrosanct, and who value intellectual and legal integrity in our system of law, both Jewish and secular, to not be swayed by emotional and "moralistic" arguments to distort the law, but rather to deeply respect the law and the process by which its integrity is guarded. Only by supporting efforts to uphold the law, and rather than changing the law to suit us, will we abide as a people of integrity and eternal values.

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* This is all, of course, in addition to the many times that  Justice Scalia stood for not the "wall between church and state" (which appears nowhere in the Constitution), that has been used too often to denigrate and trample religion and religious values, but rather a true balance between the co-equal statements in the First Amendment that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."   Inherent in this, as it should be plainly read, is that the government is neither for or against religion, and while it may not establish religious practices, it also may not make laws that prevent people from freely practicing their religious imperatives.  This will be immediately felt in cases like one now pending before the Court regarding Little Sisters of the Poor, where Catholic Nuns are fighting the Obamacare birth control mandate.   If the Court decides against the Sisters, yeshivos and other Jewish institutions are not far behind in being required to follow government mandates that conflict with the free exercise of religious beliefs, without Justice Scalia to forcefully make the case for them.