The Many Lessons of Justice Scalia’s Favorite Gemara

The late Antonin Scalia, one of the most outspoken Justices on the United States Supreme Court, was a devout Catholic who also had a strong appreciation for the Talmud. One passage held a particular fascination for him, one that he perceived as a quintessentially “Jewish” ruling.

This passage apparently represents a contrast to American law, which requires a unanimous jury to convict. However, Jewish law seems to have an opposite rule:
R. Kahana teaches that if a Sanhedrin, a Rabbinical Court, unanimously sees the defendant as guilty, “potrin oto”; simply translated, he is released immediately (Sanhedrin 17a).

The statement is not only counterintuitive but shocking, so much so that it begs for a reinterpretation. Nonetheless, the great codifier Maimonides confirms the reading, formalizing the rule that unanimity of condemnation leads to exoneration (Hilkhot Sanhedrin, 9:1),

This is not to say there is no ambiguity in Maimonides’ language. There are a number of modifications from the Talmud’s formulation, including a change (in some manuscripts) from Sanhedrin to Sanhedrei Gedolah, the “Supreme Court” of the Jewish people. Some understand this to be for emphasis, to assert that even the unanimous guilty vote of the highest court of the land would result in the defendant being set free (see Responsa Radbaz. III
:579; for an alternative approach, see Ohr Sameach).

There are a number of suggested explanations of the surprising policy, with some sharing the common premise that a Sanhedrin that collectively holds a single opinion is somehow failing in its mission; as Justice Scalia put it, “there is something fishy going on.”

One version of this is found in the Talmudic glosses of R. Zvi Hirsch Chajes, who invokes the responsibility of the judges to search for any possible exculpatory perspective. If all judges are convinced of guilt, this vital function is going unfulfilled. He notes that in modern democracies, advocates are provided for even the most unsavory of defendants, understood to be a necessary component of the system.

This attitude can be taken in concert with the brief explanation that the Talmud itself provides for R. Kahana’s statement. There is generally a rule that no capital conviction may be issued on the same day that proceedings begin; there must be a continuation into the next day to allow for all exculpatory possibilities to be aired and considered. If no judge is advocating from this direction, the process might be considered irreparably flawed.

Others, including the Maharal of Prague, in his Be’er HaGolah, approached the issue more broadly, focusing on the general pursuit of truth. For this to be obtained, there must be an adversarial process that allows for a through debate of all possible perspectives. No process that lacks this exchange can be considered just. Taken from this vantage point, the passage can be seen as a criticism of a number of intellectual shortcomings, from analytical laziness to the perils of groupthink.

However, a number of rabbinical scholars accepted those general premises but objected to the application to this passage. What indication is there, they ask, that no debate took place? Perhaps there was a vigorous exchange of views, that were challenged and examined at length, resulting in a ruling in which all parties agreed, only after extensive exposure to the strengths and weakness of each possibility. Should a unanimous verdict emerge from such a process, presumably that should create an eminently reliable position that should clearly be acted upon. In fact, this is the basis for the American law, dramatically depicted in Reginald Rose’s play Twelve Angry Men.

In response to this point, some note another modification Maimonides made to the original language. The Talmud spoke of a panel that only “saw” guilt; Maimonides’ language is of a court that “opened with a judgment of guilt”. Accordingly, the suggestion is made that he is not referring to a panel that voted unanimously after extensive debate; their conclusion should, of course, be implemented. Rather, the reference is to a court in which every member had made up their minds in one direction before even commencing discussion about the matter. In that case, a just result is impossible. If, by contrast, the conclusion is reached unanimously after an open-minded process of debate, it is a superior accomplishment of justice. (See MtHY,; Divrei Shlomo (Schneider), II, 182; Resp.TII,CM.) In this interpretation, the rule is aimed at other cognitive shortcomings, including the dangers of confirmation bias.

Those dangers are particularly threatening to the process of justice, despite the presumed intelligence of the individuals involved. Researcher David Perkins conducted studies that concluded that intelligence is no protection from confirmation bias; quite the contrary, “people invest their IQ in buttressing their own case rather than exploring the entire issue, more fully and even handedly.” (See Jonathan Haidt, Righteous Minds, pp. 79-80). Further, social scientists Brendan Nyhan and Jason Reifle discovered through their experiments what amounts to a “backfire effect“ demonstrating that once one is predisposed to a certain view, not only will new information not sway him from his position, but it will further entrench the position and will be interpreted as additional proof to that original view.” (See Clay A. Johnson, The Information Diet, pp. 47-49.)

The anti-unanimity policy had implications beyond itself as well. The classical biblical commentator Ohr HaChaim placed it at the center of an inquiry of the very nature of the process of jurisprudence. What would the rule be, he asked, if a judge was convinced of the guilt of a defendant, but realized that all his colleagues felt the same way, and thus a unanimous ruling was inevitable. Would it be permissible for him to vote insincerely for innocence, so that the actual result would be the conviction he sees as just?

The question is a profound one, as it raises crucial issues of formalism and consequentialism in the judicial system; others had posed similar questions, such as whether a judge can falsely claim indecision, as this prompts additions to the panel, and possibly an increased chance of prevailing in the next round of voting (among others, see Resp. Beit Ya’akov, 15, who prohibits, and Resp. Shevut Ya’akov, I, 138, who permits).

Further, it also shines a light on the responsibility of a judge to see his vote as an obligation to express his own genuine opinion, rather than as a cog in a system to be sublimated to other ends.

Accordingly, the Ohr HaChaim sees the verse “Do not follow the majority to do wrong“ (Ex. 23:2) as mandating intellectual honesty and procedural formalism: one who believes a defendant to be guilty must not switch his vote to “innocent” to achieve a non-unanimous, and thus conclusive guilty vote; nor may he vote “guilty” if he would otherwise be the lone innocent vote, and only through manipulating the panel into false unanimity can he engineer the exoneration he considers just.

While some disagreed with the Ohr HaChaim’s conclusion (see, for example, R. Yonatan Eibshutz, Ya’arot Dvash, II, p. 53a), his textual application touches upon a wider implication of the verse, in that it mandates not only intellectual honesty but intellectual independence. As R. Moses J. Feldman notes in his Meshivat Nefesh, the interpretation is rooted in an earlier rabbinic source (Tosefta, Sanhedrin 3:4) which interprets the verse’s exhortation not to follow the majority wrongly as an imperative to speak one’s own mind, rather than submitting to the majority out of deference, a rule codified by Maimonides (Hilkhot Sanhedrin, 10:1).

However, despite the extensive discussions, explanations, and inquiries surrounding the anti-unanimity principle, it is subject to what might be an ironic “meta” reality: the rule itself may not be unanimously acknowledged. Among others, R. Baruch HaLevi Epstein was particularly exercised about the seeming illogic of the principle, writing about it at length in his works Torah Temimah (Ex. 23, # 17) and Mekor Barukh (III, 25:12). (Notably, R. Epstein’s father, in his magisterial work Arukh HaShulchan, CM 18:7, favored an approach similar to that of R. Chajes.)

Adding to some of the above difficulties, he questioned why other remedies were not utilized if indeed the active Sanhedrin was inadequate; why not add judges, move to another court, or find extra-judicial methods to protect society from the clearly guilty murderer, as was done in other situations when technicalities bound the hands of the Court? Could there be, he asked, any greater instance of “rewarding a sinner” than releasing him without consequence, simply because his culpability seems literally inarguable?

As such, he favors a complete reinterpretation of the passage, and is gratified to find precedent for such attributed to the great medieval authority R. Meir HaLevi Abulafia (1170-1244), known as the Ramah. As cited in later works, the Ramah reads the passage with the completely opposite understanding: when all of the judges agree the defendant is guilty, take him immediately to be executed, without the normal delay until the next day generally mandated to allow for exculpatory arguments.

Here, as well, a crucial message emerges from the Talmudic passage, even as its meaning has been completely reversed. It is vitally important to be open-minded, fair, deliberate, and to consider all viewpoints. Nonetheless, there are matters that are so clear, that to extend further doubt and deliberation is not intellectual honesty, but rather sophistry and obfuscation, and an insult to logic and the public’s intelligence.

This is true especially in moral matters. To turn to the current crisis, to observe the brutal savagery of terrorism – the intentional, vicious murder of innocents, infants, the elderly, and everyone in between – and to hesitate in their condemnation, to search for the opposing viewpoint that provides justification, is not an act of open-mindedness and generosity; it is a devastating lack of moral clarity and an act of cruelty to the victims. There are times, teaches the Ramah, when judgement must be swift, and condemnation delayed is justice denied.

And yet, once again, caution and deliberation maintain their place here: Meshivat Nefesh points out that the extant editions of the comments of the Ramah to the Talmud do not unambiguously reflect the citation of his words in later sources; further investigation is needed to confirm his actual position. It is a reality fitting for this most mysterious passage, one which contains multitudes, accommodates opposite interpretations, each containing its own crucial albeit vastly different message; a passage that endlessly rewards repeated examination. In that, Justice Scalia was correct: a text cannot be any more “Jewish” than this one.