Torah and the Supreme Court

Yitro By :  Marc Wolf Posted On Feb 11, 2012 / 5772 | Torah Commentary

This past week, The Jewish Theological Seminary was fortunate to host United States Supreme Court Associate Justice Stephen G. Breyer for a public lecture. What struck me most during his talk was how he described his method of constitutional interpretation—the way he approaches a case and sits in judgment. 

His latest book, Making Our Democracy Work, continues the conversation he started in a previous work, Active Liberty. In his writings and at the lecture, Justice Breyer shared that cases that reach the bench of the U.S. Supreme Court are generally directly related to the application of constitutional law. Thus, his method of interpretation of the U.S. Constitution is the key to his understanding of law. Essentially, how he and the other justices read the Constitution determines the outcome of the cases.

Justice Breyer believes that he is part of an interpretive tradition—a tradition that began with the gestation and birth of our nation and continues through its growth. In Active Liberty he states,

That tradition sees texts as driven by purposes. The judge should try to find and honestly . . . say what was the underlying purpose expressed in a statute. The judge should read constitutional language as the revelation of the great purposes which were intended to be achieved by the Constitution itself.

When approached with a case, Justice Breyer attempts to understand the original purpose of the statute relating to his case. But it is far more than the general statute. He must seek to understand particular phrases and individual words that are the building blocks of these statutes. In his words, it is “language, history, tradition, precedent, purpose, and consequence” that guide interpretation.

Language, history, tradition, precedent, purpose, and consequence: when I read Justice Breyer’s words, they rang true to me. True not only because I consider myself patriotic, but true because they sounded strangely familiar. Breyer was expressing principles that guided more than the interpretation of the Constitution. These are all the essential ingredients for the recipe of how we interpret the Torah at JTS—language, history, tradition, precedent, purpose, and consequence. It is these very same principles that define our vision for study, law, and practice.

In our own language, we call this text and context. A text must be understood in its historical context—at some point(s) in time it meant something specific—and our understanding needs to be, rather must be, informed by that.

There may be those reading this commentary who are thinking that a Judaism viewed through a historical lens could become a bit boring—it certainly does not sound spiritual, inspirational, or at all divine. Here is where we can learn a deeper lesson from Justice Breyer. His study of the Constitution has, as an endgame, purpose. When he reads the Constitution, he is searching for the purpose that originally informed that constitutional text. Our endgame must include that same drive—the one toward purpose—to remain religiously engaging.

I am enthralled by the study of Talmud. I find the conversations and arguments enlightening and energizing. The give-and-take on a page of Talmud sheds a bright light on the core beliefs of Judaism. You may think my love of the Talmud and all of Jewish law, for that matter, somewhat strange. But there is reason.

When I first began the study of Talmud, my teacher asked, “Why do we learn Talmud?” I answered, “So we can figure out what to do—how to observe, what ritual to do, how Judaism tells us to live.” While I sat proud with my answer, having read an introduction to the Talmud, my teacher gave me a warm smile that said, “You’ve totally missed the boat.” The answer that followed was quiet and simple. We learn Talmud because it is a record of conversations endeavoring to determine the essence of Revelation.

The words of the Talmud are searching for meaning, searching for depth, searching for God, searching for purpose. It is that mission that guides us and inspires us daily. It is for that reason we keep returning to our synagogues.

What we learn from Justice Breyer, then, is that every time we approach a text, an issue, a verse of the Bible, we need to read it with those principles in mind. Language, history, tradition, precedent, purpose, and consequence. Text within its context.

What that method of reading teaches us is how to read the text now, today. By applying the principles, we gain an understanding not only of the historical context, but also of the philosophical and, most importantly, the theological underpinnings.

I share these words as a commentary to Parashat Yitro because Revelation was not simply an event experienced by the generation that left Egypt—it calls out to us to be renewed every day. Torah is not only the sacred scroll we hold fast to, but also the underlying purpose of the way we live our lives and teach our children. Interpretation did not end with Rashi, Ibn Ezra, and Ramban; it continues today in the pages of our books, the posts on our blogs, and in the sacred conversations in our study groups, classrooms, camps, and homes.

Each and every day, we stand together at the foot of Sinai and seek contemporary meaning to Revelation. Our challenge is how to approach ritual, belief, and law today. Actions, however small, have intention and often a deeper meaning than we can recognize on the surface. Likewise, texts, however ancient, teach us much about the “great purposes which were intended to be achieved” by the Torah.

There is a Hasidic story of a student who approaches his rebbe and questions the annual cycle of the Torah reading. He asks, “Rebbe—I don’t understand, every year we return to synagogue and read the same words over and over. It never changes.” The rebbe gives what I imagine must have been the same knowing smile of my first Talmud teacher and replies, “Yes, the Torah never changes, but you do.”

The publication and distribution of the JTS Torah Commentary are made possible by a generous grant from Rita Dee and Harold (z”l) Hassenfeld.