One problem with this absurd article is that the Jews on the Supreme Court have very little Talmudic knowledge. Jews who study Talmud daily and observe Jewish law vote Republican. Jews who vote Democrat rarely study Talmud and are rarely observant. Most Orthodox Jews favor the death penalty, oppose abortion, and vote Republican.
Garland, the grandchild of Jews from the Pale of Settlement, would, if confirmed, join a proud tradition of Jewish jurists. The joy in this isn’t solely about celebrating Jews in positions of power; the Jewish “family” of the court has always been a part of its forward-seeing edge. While the court’s darker elements have justified segregation, decided a presidential election on partisan lines and protected the corporate influence in politics, the Jews of the court have been the counterweight.
Ruth Bader Ginsburg, a civil libertarian and advocate of abortion rights, is celebrated as a feminist icon. Arthur Goldberg helped found the constitutional right to privacy, much to the ire of those who want the government to oversee Americans’ sex lives. Before coming to the bench, Abe Fortas represented Clarence Earl Gideon in the case that would grant the accused the right to an attorney. And, of course, Louis Brandeis and Benjamin Cardozo worked as judicial allies to Franklin Delano Roosevelt during the New Deal.
Jews have been a bigger influence in this arm of the federal government than in any other. That’s perhaps because the Supreme Court is the most Jewish of the branches. The executive branch is cold management, and Congress is less a place of dueling ideologies than it is one of cynical wheeling and dealing. The court, in its ideal depiction, is the place where scholars engage in grand debates about the essence of law, taking a deep look at the interpretation of the mandates our elders gave us. Ethical dialectic is meant to lead these minds to our governing rulings.
The Supreme Court, comprising only Catholics and Jews despite being in a country dominated by Protestants, is the most Talmudic institution in our government.
That is precisely why conservatives, motivated to restrict voting rights and protect corporate interests, are afraid of someone like Garland, by all accounts the kind of scholarly intellect that should be on the court. The whole Republican project since the failed campaign of Barry Goldwater has been based on strict ideological loyalty, which in turn is rewarded through party patronage. That’s easy to pull off in Congress, where election contributions can keep anyone loyal for as long as there are competitive elections.
But legal scholars on the high court — just like yeshiva students — can let their imaginations roam free in the minutiae in hopes of later emerging with broader meaning. Is computer code a form of free speech? Does that comma in the Second Amendment mean you’re allowed to join a militia and have a one-shot musket, or does it entitle everyone to an anti-aircraft weapon? Does it matter what the founders intended when they wrote the Constitution if we’re talking about technologies they could not possibly have imagined? The constant argument and questioning of advocates’ positions is meant to let the discourse bring us to the conclusions that best suit the people rather than showing deference to the pressures of powerful lobbies. And that’s not the way our political interests want things to work.
Comments: The author implies that originalists — those who attempt to find the clear meaning of the founder’s intent — are somehow both obsolete and non-Talmudic. He clearly misunderstands the nature of the Talmud. The Talmud is not just a collection of rabbinic arguments. It is an attempt to understand — through debate — what the original oral revelation “M’Sinai” was. Yes, circumstances and technologies change and Halacha must be able to cope with those changes. But, it attempts to cope with those changes within the original meaning of the law — both oral and written. Any deviation from that goal is decidedly non-Talmudic.
