Shmuly Yanklowitz August 12, 2009

With tears and gratitude, Judge Sonia Sotomayor was sworn in as the 111th United States Supreme Court justice — the third woman and the first Latino to make it to our high court.

Sotomayor’s confirmation hearings brought to the forefront of American public discourse some fundamental questions about what law is and what the proper functions and duties of courts and judges are. Is law an objective corpus of rules that can be accessed through formalistic procedures? Are judges merely scholars who interpret and apply law according to some objective standard? Or is law a more subjective system of rules, principles and lived experience, in which judges are both interpreters of the law and witnesses to experiences of injustice?

Our newest Supreme Court justice may help pave the path for shattering this dichotomy in American constitutionalism. As Sotomayor famously stated in 2001: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” While maybe Sotomayor didn’t choose her words as carefully as she should have, her remarks did highlight a larger truth, namely that personal background is far from irrelevant to the legal process.

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The notion that personal experience and background should inform our jurisprudence — indeed helps lead to a more ethical jurisprudence — is perhaps nowhere better articulated than in Deuteronomy’s injunction: “You shall not pervert the justice due an alien or an orphan, nor take a widow’s garment in pledge. But you shall remember that you were a slave in Egypt, and that the Lord your God redeemed you from there.” The Bible here sees the lived experience of the Jewish people as the best guarantor of justice.

It is ironic, then, that the Jewish community is often reluctant to bring its own wisdom and heritage to bear upon the pressing issues of the day. But this was not always or everywhere the case.

A hero in this context is the late Rabbi Samuel Korff, a today little-known Orthodox leader who headed Boston’s beit din in the 1960s and 1970s. Under Korff’s stewardship, Boston’s rabbinic court left a mark on the city’s larger, non-Orthodox community, with Jews of all stripes — and even some gentiles — turning to the local beit din for arbitration.

Drawing upon Jewish legal and ethical principles, Korff addressed the crisis of oppressive worker practices head-on. He invoked the biblical prohibition against oshek (worker exploitation) to prohibit the consumption of grapes — normally perfectly kosher — due to mistreatment of non-unionized farm workers in California. Korff challenged Boston’s Jewish slumlords through courageous legal decisions based on Jewish law. His court also wrote a 56-page legal responsum to issues of conscientious objection in the Vietnam War.

Part of what makes Korff so impressive — and so ahead of his time — is that he understood that Jewish law and ethics could be forces for good both in public affairs and in internal Jewish discourse. He rejected the prevalent idea that a beit din should confine its rulings exclusively to Jewish ritual and family matters; he believed that Jewish law must address broader social injustices. Explaining a rabbinic court’s ability to provide nonsectarian solutions to an array of problems, Korff told The New York Times, “justice must transcend a given creed, race or religion.”

The responsibility of a judge, in secular and religious cultures, is to ensure that the interpretation of the law account for its real-world consequences in people’s lives. Korff’s *beit din *courageously addressed public issues with halachic interpretations, recognizing the importance of bringing the best of one’s personal and communal background — the parts that engender the most empathy — into public discourse for the sake of achieving justice for all.

Shmuly Yanklowitz is the founder of Uri L’Tzedek, a rabbinical student at Yeshivat Chovevei Torah and a doctoral student at Columbia University in moral psychology.

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