- - Saturday, October 10, 2020

With the nomination of Judge Amy Coney Barrett to the U.S. Supreme Court, the nation is once again embroiled in its recurring conflict over what judicial approach should animate our courts. 

Judge Barrett exemplifies the originalist approach, which dominated most of American history, where the U.S. Constitution’s text and its original meaning and intent determine outcomes. Those on the left, advocates of a judicial activism rooted in the era of FDR, continually push for justices who view the Constitution more as an expedient to maneuver toward a liberal social and political agenda, a malleable, “living” document submissive to their vision of how society should look and operate.

Because the Bible produced many of the themes and structure found later in the Constitution, and our Founders saw in it a model for a constitutional society, it may be worthwhile to observe what it says about judges and jurisprudence. The Bible clearly enunciates a conservative, originalist approach to justice.

In Leviticus 19:15, Scripture declares that a judge must not social engineer decisions. “You shall not be unrighteous in judgment, neither in favor of the poor or the mighty.” Righteousness is applying the law, not implementing one’s own political or social activism of what should be. In the Rose Garden last week, Judge Barrett affirmed that biblical principle. When speaking earlier at a different occasion, Judge Barrett, a conservative protegee of Justice Antonin Scalia, affirmed: “I totally reject the proposition that the end justifies the means or that a judge should decide the law or twist it in any way to match the judge’s convictions”.

Ancient Jewish commentators provide the following elaboration on the above verse in Leviticus. “Perhaps a judge will contend that since the rich man needs at some point to offer charity to the poor man, now is a convenient time to do so by subverting his rightful claim into a decision financially favoring the poor man. Or perhaps, the poor man must subordinate his rightful outcome so that the well-known, mighty man not be publicly embarrassed or rebuked. The verse overrules such thinking.” Scripture decries any type of judicial activism or do-gooding, regardless the high motive. That is beyond the jurisdiction of a judge, beyond his job description.



Later in Deuteronomy 16:19, Scripture speaks of impartial justice, a characteristic at odds with those on the left who see the bench as a vehicle for enacting how society should be constructed. “Thou shall not bend judgment nor give special recognition to the person.” Impartial justice trumps any other consideration, since every individual is entitled not only to his day in court but his day of justice. Furthermore, the law is a category of integrity and must be organically correct.

Both verses speak of righteousness, in Hebrew “mishpat tzedek.” In judicial decision-making, righteousness is not about generosity, good intentions or fixing things. Those are accomplished through other means. Mishpat Tzedek, judicial righteousness is about doing it right. A righteous judge is one who decides right, correctly. We choose judges as legal scholars, not as social workers. “Social justice” is not necessarily true justice.

No doubt, judge-watchers are impressed and bedazzled by legalistic creativity. However, whereas creativity is admirable and alluring in many other areas of life, it becomes harmful when it strays too far from the original text and deprives someone his justice so as to satisfy what a judge considers a “greater justice.” In Judaic jurisprudence, creativity is used mostly in those cases where the judge or court need to extricate an individual from a Hobson’s choice and thus no one else will bear the brunt of the newly created “emanation or penumbra.”

The aforementioned verse 16:19 is most adamant about not taking a bribe: “A bribe blinds the eyes of the judge and even the righteous.” Bribery disqualifies. Bribery entails more than graft or cash payments or favors. If one allows decisions to be influenced by his desire “to make history” or “make a difference,” by “who he is,” or because of self-satisfaction in ordering “social” justice, his ability to make a righteous decision is impaired. These are forms of inner bribery and disqualification.

Those who use the bench for social activism and social engineering evince arrogance, a master-of-the-universe attitude at odds with the biblical mandate for judicial humility. From all accounts, Judge Barrett’s humility when approaching the words of the Constitution, her judicial temperament, is reflective of her overall personal humbleness.

In her remarks in the Rose Garden, Amy Coney Barrett spoke of her love of America and love of the Constitution. This is vital. Absent this expressed belief in America and our Constitution, the country runs the risk of installing a justice who would use her/his position to deliberately change and transform our country and its laws. That is dangerous for all Americans. Jewish Americans have, as well, thrived here because of how America has been constituted and because the Constitution has been a revered textual document.

Equality has always been best defined as equal justice under the law. That has been the American way. Any attempt through judicial activism to change that to equality of outcomes or wealth or representation would severely endanger the opportunity and safety this nation has offered.

• Rabbi Aryeh Spero is author of “Push Back: Reclaiming the American Judeo-Christian Spirit,” president of Conference of Jewish Affairs and a talk-show host on CRN talk.

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