Rabbi Avi Weinstein

What Would Make a Justice Truly Supreme?

In empathy, justice, Rabban Gamliel, Rabbi Yehoshua, Supreme Court on May 1, 2009 at 10:31 pm

The Most famous dispute between rabbis in the Talmud has to be the controversy between Rabbi Yehoshua and Rabban Gamliel. Rabban Gamliel is the head of the court and Rabbi Yehoshua is the brilliant thorn in Rabban Gamliel’s side–representing the proverbial incisive dissenting opinion. It is Rabban Gamliel’s humiliation of Rabbi Yehoshua that causes Gamliel to be deposed. When R. Gamliel realizes that he is in trouble, he walks over to R. Yehoshua’s house to mollify him. Rabban Gamliel, a patrician, is surprised by Rabbi Yehoshua’s poverty.

Rabban Gamliel: I see by the black walls of your house that you make coal for a living.

Rabbi Yehoshua: Woe to the leader of a generation who is not aware of how his sages suffer for how they make a living, and how they earn their keep. (B. Talmud, Brachot 28a)

President Obama, a constitutional scholar himself, has made empathy a primary criterion for his selection of a supreme court nominee. He said he’s looking for someone who can relate to the every day struggles of ordinary Americans. I believe the sages would concur. Certainly, Rabbi Yehoshua would.

  1. Not every rabbi is a sage, and not every constitutional law instructor or professor is a constitutional scholar.

    Leaders in the executive and legislative branches need heavy doses of empathy. Local judges, too. The job of Appellate and Supreme Court justices is not to empathize with either or both sides of the case they are reviewing but to decide it on the merits.

    If legislators pass laws that violate the Constitution, it is appropriate for the jurists to step in and strike down the laws. In addition, in those areas in which the statute is unclear, it is appropriate for the jurists to make law by filling in those gaps. In all other situations, the sole job of a Supreme Court justice is to apply the law, using as little empathy as possible. If the legislators have not shown enough concern for ordinary Americans, ordinary Americans can complain and either (a) the legislators will change the laws or (b) the people will vote them out of office.

    A similar thing can be said for the Constitution itself. If it needs to be changed, if the people believe that portions are no longer just, then there is a procedure for changing it: writing and passing amendments. Activism, for the noblest of purposes, has no place. What the court giveth, the court can take away. I do not think the opinions of the nine people on the SCOTUS on what is best for the U.S. are any more valid than my opinions or yours.

    It is not appropriate, and not healthy for a nation of laws, for judges to “fudge it” so that they get the result that they think is most just, most empathic, most appropriate for the struggles of ordinary Americans.

    Ron Weiner

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