Judicial Activism and Religious Change

This summer’s biggest headlines seem to be centred around legal decisions: from DOMA and the Voting Rights Act to the recent acquittal of George Zimmerman, much of the national conversation has focused on law and the ways it is being justly or unjustly upheld or struck down (depending on the observer’s opinion).

One of the terms thrown around a lot after the Supreme Court’s day in the headlines was ‘judicial activism‘ — a term that, on the whole, has a negative connotation in the US.  To be a judicial activist is to overreach, the argument goes.  The separate branches of government are meant to stay separate, and judges are therefore not meant to legislate.  This is both a wonderful idea and obviously naive, all at the same time.  Yes, the legislative branch should be legislating, and the notion that the Supreme Court waited to overturn DOMA until the country was ready does support such a conservative understanding of what the Court’s role is.  However, what is the need for law if its sole stated purpose is to write down a set of guidelines to which everyone agrees before they are written?

Naturally, this is a topic that applies just as readily to interpretations of religious legal codes as it does to secular national legal codes.  Philosophically speaking, there is an argument about whether a text such as the Torah is a ‘living‘ document or whether it, too, should be legislated from without any room to read beyond the ‘plain’ meaning of the text.  Beyond the absurd claim that there is one ‘plain’ meaning of any given text, not to mention a text like the Torah that has been scrutinized and (over-)analyzed for thousands of years, it is clear to me that the Torah must be a living document if it is to remain the basis of a system of law that governs people alive today, and not just at the time it was written (the same argument applies to interpreting a document like the US Constitution).

While, in the case of the Torah, the text itself does stay static, the meaning we derive from it continues to change with time.  At the risk of contradicting myself, the ‘plain’ meaning of Exodus/Shmot 21:22-25 is that if I (e.g.) break your arm, my punishment is that my own arm is broken.  Over one thousand years later , the Rabbis of the Talmud came along and codified (when the law was changed societally is impossible to know) a very different reading of these verses, where they ruled that the punishment for breaking an arm was the monetary equivalent of that damage (Baba Kamma 84a).  Is this a case of judicial activism?  Undoubtedly.  Is that inherently a bad thing?

In the case of the Talmud, it seems clear that there is no problem with judicial activism, as there was no notion of separating the judicial from the legislative — the Rabbis analyzed past and present law and decided new laws based on various combinations of their understanding of precedent and their own analytical reasoning skills.

I grant that if the United States wants to consider judicial activism a priori negative, by enshrining an unchanging understanding of law into its foundational documents and cultural ethos, the conversation ends abruptly.  However, assuming that this is not the case (and if it were, I think that the charge of judicial activism would apply equally to the establishment of DOMA as it does to its repeal), it is worth considering why one might think that judicial activism is a bad thing.  Because, as I mentioned, laws are made precisely for those things which would not otherwise become normative in a society, and not solely for matters already agreed upon.  Unless the Left is collectively deluded, the Voting Rights Act was still playing such a role, and it was for that reason that so many considered the Supreme Court’s ruling a disaster for African-Americans.  Similarly, I would be surprised if the Torah would have needed to continually exhort the Israelites to refrain from idol worship unless there was a legitimate concern that the allure of worshiping other gods was a serious temptation.

Declaring something to be law does more than rubber stamp public opinion polls.  Given the rigorous training required to reach the level of arbitrating these cases, in either Judaism or modern America, I think it perfectly reasonable to allow these experts to have a say in the values that will undergird future laws, even (especially?) when those laws represent a break from tradition or precedent.


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