Why Clarence Thomas and Antonin Scalia aren’t Jewish

I’m taking a class on Jewish history with our rabbi, Steven Chester – actually, less a class than a frenzied 100-yard dash across the surface of Judaism, since we only meet for an hour a week. 

(I still live in that old college paradigm where class = three hour-long lectures a week, plus a section discussion, plus research papers. But hey, this is adult ed. We adults are not necessarily smarter than college students. We just have less time.) 

We’re currently back in the Biblical phase of things, talking about Abraham and Joseph and Moses and what historical evidence exists for various episodes of the Old Testament. 

One point made by Rabbi Chester particularly struck me – that Judaism didn’t really become Judaism until well after the Biblical period. 

Judaism as we know it is not just the Torah. It’s not just the laws given to Moses at Mt. Sinai. It’s not even the combination of Torah and prophetic writings that Christians call the Old Testament. 

Judaism is all that plus the rabbinic commentaries and interpretations that were built on top of the Bible like so many floors of an apartment building – the Mishnah, the Talmud, the generations of rabbis commenting on and interpreting the Bible. 

Fragment of Mishnah commentary by Maimonides / University of Manchester

Judaism doesn’t have fundamentalists in the sense that Christianity does – people who look only to the literal word of the Bible to guide their lives. Even the most ultra-Orthodox Jewish sects rely on rabbinic commentaries for interpretation of the Bible. 

Granted, the ultra-Orthodox seem to feel that legitimate interpretation came to a halt about 1,500 years ago. And parts of the Talmud may seem weird, obscure or outdated today. But at the time it was compiled, it was a flexible effort to adapt centuries-old Mosaic laws to the realities of contemporary life, including forced exile from Jerusalem. 

Prayer replaced ritual sacrifice. Multiple synagogues replaced a single Temple. The implications of Biblical injunctions were discussed, debated and interpreted. 

“You have ‘an eye for an eye’ in the Torah — primitive desert law,” Rabbi Chester said in one of my Bat Mitzvah study sessions with him last spring. “Then Rabbi Hillel comes along and says, ‘That means the value of an eye for an eye.” 

So Judaism is not simply an unwavering adherence to an ancient code of laws. It is interpretation and adaptation of those laws so that the spirit remains true, but the details meet the present era. (As a Reform Jew, I would argue that we need to keep interpreting and adapting, and not stop in 5^th century Babylon or 16^th century Poland.) 

Now, let’s flash forward a millennium or two to 21st century America, where the U.S. Supreme Court is polarized between two schools of thought: 

• Conservative justices like John Roberts, Antonin Scalia and Clarence Thomas who claim the U.S. Constitution means only what the framers literally wrote, and
• Moderates/liberals who believe in interpreting the Constitution to address modern-day issues like gay rights, abortion, and a complex global economy that requires government oversight and regulation. 

I was thinking about this while reading a recent New Yorker story on the judicial philosophy of Justice Stephen Breyer, whose new book attacks the view that the federal government should do nothing more than the founding fathers specified in 1787.

Making Our Democracy Work, by Stephen Breyer

Journalist Jeffrey Toobin wrote that Breyer: 

“gives a comprehensive denunciation of a purely originalist approach, noting first the difficulty of divining what the framers might regard as the legal status of ‘the automobile, television, the computer, or the Internet.’ And he argues that the framers themselves wanted the application of the Constitution to change with the times.” 

Hmm.

Is it more than historical happenstance that three of the four liberals on the Court  – Breyer, Ruth Bader Ginsburg, and Elena Kagan – are Jewish?

Tags: Jeffrey Toobin, Judaism, originalism, Rabbi Steven Chester, Stephen Breyer, Supreme Court, Talmud, Torah