By: Allie Orgen  | 

The Pundit: Judge Ketanji Brown Jackson’s Nomination and the Jewish Approach to Textual Interpretation

The recent political news cycle has been dominated by the Feb. 25 nomination of Judge Ketanji Brown Jackson for associate justice of the Supreme Court of the United States. This nomination has captivated the attention of Americans spanning the entire political spectrum, with many celebrating the historic nomination of the first Black women to the Supreme Court, and others lamenting the nominee’s selection based on the premise of race and gender rather than merit. 

There are those saying that this runs directly against Martin Luther King Jr’s famous “I Have a Dream” speech, where he wished for a future where people “will not be judged by the color of their skin but by the content of their character.” Others counter the opposition to this nomination by quoting a 1980 Ronald Reagan campaign speech where he promised to nominate the first female justice to the Supreme Court, asserting "It is time for a woman to sit among our highest jurists." Reagan later fulfilled this promise by appointing Sandara Day O'Connor to serve as the first female Supreme Court justice. 

While I have my own strong opinions regarding this nomination, the news cycle has produced enough articles representing both sides. However, I believe that there is a far greater issue facing the Supreme Court, with ramifications that have the potential to change America as we know it, and it is not getting the proper press attention it deserves.   

The nomination of an ideologically liberal judge highlights the inherent difference between judicial activism and judicial restraint. While the former fundamentally threatens the integrity of the Constitution, it also seemingly contradicts one of the core principles of our Jewish observance. 

Judicial activism can be defined as a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of their decisions. This is typically depicted as the embodiment of the living document theory, and a style of interpretation that believes that the Constitution is dynamic and is intended to adapt with the times, even without being formally amended.

Judicial restraint is fundamentally the opposite, and encourages judges to limit the exercise of their own power. Advocates of judicial restraint argue that judges do not have the authority to act as policy makers. This approach seeks to respect the liberal democratic values upon which the United States was founded, and the liberties which the Constitution protects, when making legal decisions. This practically relates to originalism, the ideology of textual interpretation that believes that the Constitution must be interpreted with the meaning in mind the day it was written. 

Ideological and philosophical originalism has been present since the first bench of Supreme Court justices, yet is rarely discussed without reference to former Justice Antonin Scalia. When deliberating cases, Scalia was meticulous in reading the text of the Constitution, and was precise in his opinions, always taking into account the exact wording and meaning of the text. Despite his personal opinions and the growing challenges modernity brought on, he stayed firm in his view –– that following the letter of the law was the proper approach to take in interpretation –– and would rule against his own political opinion if the text was different from his personal belief.

Scalia was not the first to formally utilize the principles of originalism, as the letter-of-the-law interpretive approach dates back centuries. It is the common practice of Orthodox Judaism to rigorously examine Jewish laws and traditions and follow them the same way as our ancestors were instructed to at Har Sinai when receiving the Torah. When conflicts arise in contemporary society, especially regarding the challenges of modernity, we still look to halacha and tradition to see how to proceed, and maintain a strong adherence to Jewish law. Modern problems do not always require modern solutions, and in the case of Judaism, we are directed back to the source to unpack questions that arise in changing times. 

The first Mishnah in Pirkei Avot states that “Moses received the Torah at Sinai and transmitted it to Joshua, Joshua to the elders, and the elders to the prophets, and the prophets to the Men of the Great Assembly.” Not only were the words passed down, but the interpretations and hidden meanings were as well. The Torah applies from one generation to the next, and its implications, laws and teachings are meant to be passed down and instilled, rather than adapted to fit with modernity. In Rambam’s introduction to seder Zeraim, he states, “Know that prophecy does not help in the explanation of the Torah and in the extrapolation of its derivative commandments.” Rambam agrees that the text is the basis for understanding Judaism, and that interpretation must rely on the original meaning. He is not dismissive of the fact that a major element in Judaism is debate over textual interpretation, as done throughout the Talmud and over the centuries of active Jewish life. The meaning of the text is not always simple, and interpretation of Torah and Mitzvot is rarely ever straightforward. 

Rambam’s introduction perfectly aligns with the originalist approach to Judaism. Originalism does not imply that the text should be interpreted at face value, but rather that it should be thoroughly analyzed to discover the meaning as the writers intended. Texts are multifaceted and their interpretation raises complexity and debate, whether in the Supreme Court or the beit midrash. If interpretation was simple, there would be no need for the Supreme Court, and the Talmud would not exist. Many aspects in the Constitution, from the Second Amendment to the Necessary and Proper Clause, cause debate over the intention of the framers, and to what extent they apply. Antonin Scalia, Rambam and those who preach textual originalism and judicial restraint alike understand that texts need to be closely read, analyzed and understood beyond surface level, while staying within the framework of the text. 

This is the majority view of the current justices ruling from the Supreme Court bench, and this method protects the integrity of the founding documents that created an outline for how to run and maintain the government of the United States. 

However, the living document theory encourages texts to be interpreted as the reader sees fit, and this interpretive style provides a basis for opposing outcomes: any verdict could be justified and explained without a textual basis. Judicial interpretation in this style leads to overstepping the constitutional jurisdiction of the Judicial Branch, and a complete violation of checks and balances. If you want to shape policy, run for Congress, but leave the Supreme Court out of it. 

My own personal appreciation for the letter of the law is fueled by both my religious observance and my political ideology. Textual originalism is a practice that has been utilized for centuries, and its ramifications and implications play a major role in shaping our daily lives.
President Biden stated that “the Constitution is always evolving slightly in terms of additional rights or curtailing rights.” With a claim like this threatening the very integrity of the Constitution, I recommend we focus more on the judicial-political philosophy at stake with Judge Ketanji Brown Jackson’s nomination than the unfortunate identity politics that have stolen the headlines.

Photo Caption: Justices’ judicial philosophies have the power to reshape the Supreme Court, for better or worse.

Photo Credit: Tingey Injury Law Firm/ Unsplash