Moses and the Supreme Court

As Judge Neil Gorsuch’s confirmation hearings unfold over the coming days, he will face numerous questions about his views on specific legal decisions. But Judge Gorsuch will also likely be asked to describe his judicial philosophy. When Chief Justice John Roberts described his philosophy, he likened a judge to an umpire in baseball. “Umpires don’t make the rules; they apply them…” Roberts said. “[If confirmed] I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

Aharon Barak, the former chief justice of the Israeli Supreme Court described the role of a judge in an entirely different manner. “The judge may give a statute new meaning,” Barak wrote “a dynamic meaning, that seeks to bridge the gap between law and life’s changing reality without changing the statute itself.” For Roberts, the parameters of the law are set and a judge simply needs to determine if the law has been infringed upon, while for Barak, a judge may apply widely held objective social values in his or her rulings. Although Chief Justice Barak and Chief Justice Roberts may stand at opposite ends of the ideological spectrum, they both believe that the role of judges is to apply a set of external objective criteria to the case that is in front of them.

The Torah in Parshat Mishpatim also seems to describe a similar role for a judge. “You shall not glorify a poor man in his lawsuit… [nor] shall you pervert the judgment of your poor man in his lawsuit.” In quick succession, the Torah warns a judge not to favor a poor person simply because he is poor, but also not to hold a litigant’s impoverished status against him. Decisions, it appears, are to be based solely on the abstract laws and values related to the case. However, Moses’ behavior as a judge suggests that the Torah demands judges do more than just apply the relevant laws or values to the case at hand.

The Torah describes how when Moses sat to adjudicate cases, he worked from daybreak to nightfall. But Moses was not serving as a judge from sunrise to sunset simply because of the number of cases he had before him. Instead, it was due to how he handled each of those cases. Moses did not simply decide the cases based on the letter of the law or on abstract values, instead he applied the principle of pesharah — compromise or arbitration. While in other legal systems, arbitration often takes place outside of the courtroom, in Jewish law it can be part and parcel of the legal proceedings. According to Rabbi Joseph B. Soloveitchik, arbitration in Judaism is not merely a legal procedure; instead, it embodies a fundamental theological principle. The fact that humans are limited; neither party can be unqualifiedly right or completely wrong. “Both win. Both lose.” Writes Rabbi Soloveitchik. “Both give something away. Both are defeated…there is no justice without sacrifice.” In Jewish law, a judge must look beyond a person’s financial status, but he also must look beyond an easy reliance on abstract laws or values. Instead, he must assess the situation in front of him and rule in a manner that provides maximum justice and benefit to both parties involved.

Often, we look to be convinced our own rightfulness, we seek validation that we are correct both in our personal lives and in our public opinions. This facet of our personality will certainly be on display during the Supreme Court confirmation hearings. Senators from both sides of the aisle will ask questions that they already know the answers to, and look to have their long-held established views of the nominee confirmed. But the Torah’s description of the role of a judge reminds us that we should ask more of ourselves and of our leaders. Perhaps the most fundamental question we should ask of our prospective Supreme Court Justices is, “What are the limits of your knowledge, and how comfortable are you recognizing these limits?” It is only when we all recognize the limits of our perspective and our inescapable lack of certainty, that we can build a society based on mishpat, tzedek, and shalom. Justice, charity, and peace.