The Torah demands of us: “Justice, Justice, you shall pursue” (Deuteronomy 16:20). We are not told to sit back and wait for justice to come to us. In fact, midrash in Sifrei Devarim explains that this biblical verse means that we should strive to achieve justice specifically through the finest of courts.
As our nation continues to mourn the passing of Justice Ruth Bader Ginsburg, a feminist icon who spent her entire career fighting for gender equality, President Trump’s nomination of Amy Coney Barrett, has sparked the latest fight to define what justice looks like in this country. Barrett’s views are antithetical to my own, and certainly the polar opposite of what Ginsburg stood for. The President has a constitutional right to nominate a replacement and the Senate is also required to hold confirmation hearings and vote.
We know that this seat will greatly shift the make-up of the highest court in the land for a generation and issues that are at the core of what I believe as a progressive rabbi, such as access to affordable healthcare, reproductive rights, marriage equality, and treating immigrants humanely, may very well be upended. News that Saturday’s press conference announcing Barrett’s nomination may very well have been a coronavirus super spreader event may delay the confirmation process, especially if Senators and Barrett herself need to quarantine following President Trump’s positive COVID test. Still, with justice hanging in the balance, many Democratic strategists are contemplating what’s next.
One solution Democratic activists have offered is to expand the size of the Supreme Court if the party takes control of the White House and both houses of Congress. There is historical precedent for this: The Supreme Court began with six justices in 1789 and at different times the size has increased and decreased to seven, nine, 10, back to seven, and back to nine, where it currently stands. There is no mandate requiring a certain size of the court. Rabbinic tradition would side with these Democratic activists, suggesting that expanding the court helps us pursue justice.
Tractate Sanhedrin, the section of the Talmud that focuses on legal systems and court structures, begins with a declaration that the most basic cases are decided by a court of three. Some cases are debated with five or seven judges. More extreme cases are decided by a court of 23 judges. The most important cases were determined by the Great Sanhedrin, a court of 70 judges. When determining the makeup of the court, be it three judges or 70 the rabbis understand the importance of balance. In the third chapter of this tractate, the Talmud clarifies that in a three person court, one judge is picked by each side and the third and final judge is picked by the other two judges.
The Supreme Court is not balanced. It has become increasingly right-wing in the past 20 years, which doesn’t accurately represent this country. Two-thirds of the justices (including the current nominee to fill Ginsburg’s seat) were nominated by Presidents that did not win the popular vote. The Republican-majority Senate which is determined to confirm Barrett before election day received 12 million fewer votes than their Democratic counterparts. The right-wing court doesn’t represent the will of the people and certainly doesn’t represent our biblical command to pursue justice. Only a true balanced court does that.
The beit midrash learning style of chevruta pairs, learning partners, suggests that one should learn with another person who holds a different perspective. Tractate Taanit (7a) explains that two Torah scholars sharpen one another. By learning with something who has different life experiences and may hold a different perspective and worldview allows one to gain a new understanding of the text and see Torah in a new light. Being surrounded by those that agree with you doesn’t accomplish that. Only by learning with a sparring partner does one truly understand the text. If this is true for Torah, then it must also be true for the United States Constitution.
When judges are added to the court that share the same perspective, and the court tilts to extremes, that denies those justices the ability to firmly understand and comprehend the truest meaning of the sacred founding documents of our nation. Only a balanced court does that.
Expanding the court isn’t radical or unprecedented. It is just! And when Republican Senators make up their own rules to sway the court in a direction that is contradictory to the views of the majority of Americans, then any change in court structure that focuses on a more balanced system, and in the process pursues a more just society, should be applauded and encouraged. Even if it expands the court to 70 judges like the Great Sanhedrin!
Rabbi Jesse Olitzky is based at Congregation Beth El, South Orange, New Jersey.