Frederick L. Klein

Yom Kippur: When the Guilty Run the Court

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The Day Justice Ginsburg was Summoned by a Higher Court

As we enter Yom Kippur, I would like to share with you a story that made the rounds following the passing of Justice Ruth Bader Ginsburg of blessed memory.   Federal law requires the Supreme Court to meet the first Monday of October and to hear oral arguments.  In 2003, Yom Kippur was the first Monday of October.

Justices Stephen Breyer and Ruth Bader Ginsburg approached the Chief Justice William Rehnquist about delaying the session.  “I do not believe that it is appropriate,” he remarked.  “We do not do this for Good Friday.” Justice Ginsburg knew she needed an argument.  She explained to him that lawyers wait their entire careers to appear before the Supreme Court. For many of them, it is a once in a lifetime chance.   Some prepare arguments for months, even years.  What if a Jewish lawyer needed to appear before the Supreme Court and could not come? We should not make that lawyer choose between observing his or her faith and appearing before the Court. That persuaded the Chief Justice and they changed the calendar.

Rabbi Solomon Schiff, z” l, the director and founder of our chaplaincy program, astutely pointed out to me that Justice Ginsburg’s argument went deeper.  For the lawyer who extensively prepared the case, the failure to appear before the court would be a disservice to the highest court, because not all the arguments would be proffered.  In other words, the failure for these lawyers to appear was not simply an inconvenience to the court, but rather fundamental to the very work of the court itself!

Rabbi Schiff’s comment got me thinking.  Justices Ginsburg and Breyer could have made another argument to the Chief Justice.   Perhaps they could have argued that they were not simply judges, but defendants as well. They could not come to the Supreme Court because they were already summoned to appear before a higher court.

What could be higher than the Supreme Court, and who would be summoning them?

Yom Kippur is the day when the heavenly court meets, and God is the judge, summoning each one of us. The case on the Divine tribunal’s docket is Your Perfected World v. Your Reality.  While the heavenly angels represent Your Perfected World, we come before God defending Your (Our) Reality.  Even if we have not lived up to our perfected self, we deserve a judgement for life.   We make the case not only for our own lives, but the lives of our families and societies as well.  On Yom Kippur we become both the defendant and the defense attorney; we argue to the best of our ability that we are all worthy.   So far, this sounds daunting.  Like the U’Netaneh Tokef proclaims, even the angels themselves are in terror, for they cannot endure the judgement.  How then will we?[1]

However, Yom Kippur is not only a day of fear, but a day of joy.  Why? Unlike a human court that only looks at the past that was, the Divine tribunal looks at past and future.  They look at not only where we have been, but also who we are, what our potential is, and where we want to be.  This is the essence and secret of teshuva, of repentance.  In discovery new evidence can be offered, not only about what was, but what can be.  That discovery can be uncovered in the inner hearts of each one of us!  What human court can present evidence from the future in discovery!  Thus, on Yom Kippur we want to offer our best selves and our best arguments.

The Paradox of the Divine Tribunal

If you are like me, when the High Holidays come around, I feel a sense of dread.  A heavenly court.  Books of Life and Death.  Who is righteous and who is wicked?  Even the astrological symbol of the month of Tishrei are the scales, as if to say the entire world – and my life – is in the balance.  The court case opens on Rosh HaShanah, and lasts for ten days, concluding with the Neilah prayer on Yom Kippur.  We have 10 days to make our case, and the stakes are our very lives.  When we reach Yom Kippur itself, we do not even delude ourselves into thinking we are innocent, but consistently admit, ‘guilty as charged.’

However, here is the strangest and most baffling element of the whole ten-day court drama: You make your case, you go before the Divine tribunal one by one ‘like sheep,’ you introspect your deeds, you honestly confess your shortcomings (read sins) commit to change, and then you are assured atonement.  Now it is true that one’s process cannot be pro forma but must be honest, but even so, this is a judgement that no human court would ever afford. Imagine a human court in which a person would go before the court, freely admit guilt, and then ask to be let go, completely absolved.   The court might take one’s regret and context into account in the sentencing phase, but a person remains guilty.  The rabbis, however, say something that is completely counterintuitive:

Resh Lakish said: Great is repentance, as the penitent’s intentional sins are counted for him as unwitting transgressions, as it is stated: “Return, Israel, to the Lord your God, for you have stumbled in your iniquity” (Hosea 14:2). The Gemara analyzes this: Doesn’t “iniquity” mean an intentional sin? Yet the prophet calls it stumbling, implying that one who repents is considered as though he only stumbled accidentally in his transgression (Yoma 86b)

Another tradition of Resh Lakish is even more radical. With repentance, one’s intentional sins are not counted as accidental misdemeanors, but rather actual merits.  It is as if one comes into the court, laden with a crime, admits to the crime, and then leaves with an award!

That Resh Lakish would be the author of this statement is very telling, given his backstory.  Resh Lakish was known as the leading Torah scholar of the third century CE, but before repenting and becoming a Torah scholar he had been a bandit and a gladiator.  Resh Lakish therefore is a recovering criminal.  Thus, in one exegetical flourish, Resh Lakish seems to have absolved himself of his entire past.  What is going on here?!  Are criminals running the court!?

As we will see, maybe so.

One Flew Over the Cuckoo’s Nest:  Who is Running this Court?

The name Louise Fletcher, who died last week at the age of 88, is probably not a name that comes up around the kitchen table.  Yet, in 1975, Fletcher won the Oscar for best actress, playing the steely and tyrannical Nurse Ratched at a hospital for the mentally ill in the film One Flew Over the Cuckoo’s Nest. According to her obituary in the New York Times, the American Institute for film rated her character the second most villainous female character, only surpassed by the Wicked Witch of the West.

In the film, in the name of ‘rehabilitation,’ she controls every aspect of the lives of her patients.  She dispenses drugs, orchestrates psychotherapy groups which are intended to humiliate and control, and when people get out of line, they are subjected to electric shock treatment.  Her control of the ward becomes challenged when Randle McMurphy is admitted, played by Jack Nicholson.  Randle at one point had a relationship with an underage teen and was guilty of statutory rape and had a history of minor crimes, mainly disorderly conduct.  Randle talks his way into the psychiatric facility to avoid work duty during a prison sentence. While in the asylum, he befriends many of the patients, and through his charismatic personality and over the top shenanigans, he slowly gains their trust and admiration, posing a challenge to the controlling Nurse Ratched.  In one scene, he helps them steal a bus, and hires a boat to take them on a day fishing trip, ‘chaperoned’ by women of ill-repute.   In another situation, he calls for a strike until the patients are permitted to watch the World Series on TV together. At each stage of Randle’s disruptions, we see more elements of humanity in each of the characters.  The insane seem to be able to cure one another. Ultimately, the challenge to Nurse Ratched’s authority becomes so pitched that Randle physically attacks her when she says a highly manipulative thing that causes a patient to panic and die of suicide.  Randle is restrained, and the film ends with him languishing in a bed, the victim of a lobotomy prescribed by Ratched.  He is suffocated by one of the patients, ‘the Chief,” knowing his friend would never want to live in this catatonic state.

There is a deep irony in the story.  Randle, the ‘deviant,’ clearly cares for the patients and reminds them of their inherent worth, that they are more than the diagnosis they have been given.  Randle, the criminal, and deviant, seems also to be the healer as well. In realizing they are all sick in a way, he also helps them uncover their inherent dignity as well. In contradistinction, Nurse Ratched maintains that at core these people are insane, unredeemable, and seems to delight in controlling them.  Far from healing them, she reinforces their illness.

In the film, we must ask, “Who is truly the healer?”  More importantly, who has the right to stand in judgement and control the fates of others?  By the end of the film, the true illness is the system itself, which allows people to suffer the way they do.  One must ask, what was the point of the asylum in the first place?  Was the purpose to truly rehabilitate the sick soul or was the staff as sick as the patients they seemingly served?

By extension, what is the point of a human tribunal?  The professed purpose of the human court seems to be to mete out justice, but as history proves, justice is often elusive.  Whether the process is flawed, the evidence tampered with or even withheld, or the court or jury corrupt, ‘criminals’ can be punished for crimes they did not commit.  While every system needs a way to enforce laws, the truth is that while a court may claim and even try to be objective, there are times when our justice system is reflective of our flawed values and prejudices.  In other words, the criminal may indeed be flawed, but we may be as well.  The failure to realize that all of us are guilty in some way or another is the real crime.[2] Thus, to stand in judgement of another therefore always contains a hint of hypocrisy, no matter how morally outstanding the court or society.  At best, the system is subject to human error and judgement.  At worse, justice is a thin veneer for control, like Nurse Ratched ‘treating’ the patients in an asylum.  Simply put, true justice in this world is a noble aspiration, but rarely achieved.  This is an ongoing theme throughout the books of the prophets.

What about the Divine tribunal, God’s justice? The Divine court in this sense is the exact opposite.  God cannot be bribed or corrupted.  Furthermore, God knows everything about the inner workings of every individual.   On Rosh HaShana, all creatures pass before Him like sheep [benei maron], as it is stated: “He Who fashions their hearts alike, Who considers all their deeds” (Psalms 33:15).[3]  No information is withheld, no evidence is fabricated, no jury is misled.  Yet, unlike the human court, despite the ability to truly mete out absolute justice, God does not.  Why?

This fundamental question is at the root of Yom Kippur, and the entire book of Jonah grapples with this question.   However, I would like to proffer what I believe is the explanation of Resh Lakish himself.  Resh Lakish is commenting on the strange ordeal of the accused adulteress woman, the sotah.

Resh Lakish says: A man commits a transgression only if a spirit of folly [shetut] enters him, as it is stated: “If any man’s wife goes aside [tisteh]” (Numbers 5:12). The word tisteh is written with the Hebrew letter shin, affording an alternative reading of tishteh, which is related to the term for folly, the word shetut (Sotah 3a, with interpolated English text of Koren-Steinsaltz)

Resh Lakish is generalizing the meaning of the text.  Sin and wrongdoing are not because we are naturally evil or corrupted.  In fact, we are inherently good.  However, we suffer from the malady of myopia.  If we really understood we are in the image of God, that those around us are also images of God, and that the world in which we live is infused with Divinity, we would naturally do the good and just. On a higher level, like we say in the daily prayer, our souls are pure.  Something is wrong not on the level of our souls, but our perception of the world.  In other words, we suffer from a malady, and as such we do not need punishment, but rehabilitation.[4] In the words of the Talmud, “a spirit of folly enters him.”

Given this reality we can reframe the drama of the Divine tribunal.  In the act of confession, we are stating that we do know the good and just, and we want to lead our lives in accordance with it.   As for the moment we have sinned, even if willingly, we plead insanity.  We plead that at that moment we did not know what we were doing, ‘a spirit of folly entered us.’   God, who knows the working of the inner heart, accepts this plea if it is heartfelt.

More than demanding justice, God expects rehabilitation, and in granting us life, God is admitting to our own capacity to heal ourselves.  God provides this period not to beat us down like a controlling tyrant, but rather as an effective treatment to become more than we can imagine if we take it seriously.  God, the true objective judge, knows all of us miss the mark.  God is the compassionate healer, healing us from the damage we do to ourselves.

When the Guilty Run the Court

On Rosh HaShanah, I came across a rabbinic midrash that made me laugh aloud.  In ancient times, before the calendar was fixed, the Jewish people established the calendar through the monthly pronouncement of the new moon by the Sanhedrin, the “supreme court” in Jerusalem.  Rosh HaShanah, the beginning of the ‘trial’ as it were, was therefore declared by this very human court.   (Two days are observed around the world because it was not clear which day of the month would be declared the new moon.)

The midrash paints a picture in which the people below declare Rosh HaShanah, and God rushes the angels to set up the court room, as the Jewish people have set the date.  The rabbis comment on this irony. In the human world in which we live, who ever heard of a world in which the criminal establishes the date for his own summons.  Yet here the Jewish people- the ones being summoned for their misdeeds- tell God when to arrange the court!  Furthermore, when they arrive at the court they are not coming dressed in black and quaking in fear, but are coming before the court in white, knowing that on Rosh HaShanah (and Yom Kippur) they will be judged favorably. Unlike the human court of law, it is as if they already know the verdict! If the insane are running the asylum, here the criminals are running the court! (Yerushalmi Rosh HaShanah 1:3)

It is hard not to see the humor here, but the rabbis are saying something dead serious about these days.  The rabbis record a long-standing debate among the angels whether a human being should be created at all, given their unpredictability and capriciousness.  Yet, God takes a chance on humanity, knowing full well they will fail, repeatedly.  Hence the very court God establishes, these High Holidays, are predicated on the very fact that we are fallible creatures.  God allows for our own limitations, our own fallibility, and even allows us to establish the date of the trial.   God even stacks the court in our favor, accepting the insanity plea.    (If God judges us like this, how much more should we be understanding with our fellow human beings.)  However, on Yom Kippur, God does ask us to do one thing.  The mitzvah of teshuva, repentance and honest confession. On Yom Kippur we need to admit to our failings, but when we do this we simultaneously remind God we have the potential for greatness.

Like Justice Ginsburg who was summoned to the highest court on Yom Kippur, each of us need to make our own best arguments to sway the Divine Judge in our favor.   Just like the potential Jewish lawyer arguing passionately before the Supreme Court, without the devotion of our spirit, the merits of our case will never be fully heard in the heavens.

With all our faults, the court believes in us.  Moreover, the world needs our better selves more than ever.   What will be our commitments this year?

May you be sealed for a Year of Life- Gemar Chatimah Tova

[1] The image of the heavenly courts for some were not seen literally but as a metaphor as to how we should approach these days.  See e.g., Rabbi Azariah Figo (Venice, 1579-1647), Derasha for First Day of Rosh HaShanah in Binah L’Ittim.  Republished in Otzar Derashot, ed. J.D. Eisenstein (NY, 1919), p. 15.

[2] To be absolutely clear I am not saying there are not people who are guilty and that a court cannot administer justice appropriately.  I am only saying that the system is only as good as we are.

[3] Mishna 33:15

[4] To be sure, I am not talking here of extreme cases of evil.  There are times where a person may lose the capacity to repent.  The most well-known case of this is Maimonides’ explanation of God ‘hardening Pharaoh’s heart. (See chapter 8 to Maimonides’ commentary to Avot.)

[i] Translation Koren-Steinsaltz edition, which includes English interpolated commentary.

About the Author
Fred Klein is Director of Mishkan Miami: The Jewish Connection for Spiritual Support, and serves as Executive Vice President of the Rabbinical Association of Greater Miami. In this capacity he oversees Jewish pastoral care support for Miami’s Jewish Community, train volunteers in friendly visiting and bikkur cholim, consult with area synagogues in creating caring community, and organize conferences on spirituality, illness and aging. As director of the interdenominational Rabbinical Association of Greater Miami, Fred provides local spiritual leadership with a voice in communal affairs. He has taught at and been involved with the Pardes Institute of Jewish Studies, Drisha Institute for Jewish Education, Hebrew College of Boston, the Florence Melton Adult Mini-School, CLAL– The National Jewish Center for Learning and Leadership, and the Shalom Hartman Institute. He is Vice President for the Rabbinic Cabinet of the Jewish Federations of North America, former Chair of the Interfaith Clergy Dialogue of the Miami Coalition of Christians and Jews, and formerly served on the Board of the Neshama: the Association of Jewish Chaplains.
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