The Supreme Court has been a hot-button topic since the start of the 21st century, when it arguably gave the presidential election in December 2020 to George W. Bush.
It is even more a hot button topic today, for three reasons:
• The pending retirement of Associate Justice Stephen Breyer and the need to find a replacement acceptable, at least, to all 50 Democrats in the Senate.
• A variety of controversial cases to be decided by the end of June, when the Court’s current term ends. These decisions are likely to shape the course of this country for years to come. However the justices rule, there will be much hand-wringing and loud protests from the losing parties.
• The report delivered to President Joe Biden in early December by the loftily named Presidential Commission on the Supreme Court of the United States, which is certain to cause much debate in this congressional election year. The commission provided “a critical appraisal of arguments in the reform debate,” in its words, leaving it to Biden to decide which proposals to support, if any.
Dissatisfaction with the Court is nothing new. Back in the late 1950s and throughout the 1960s, the chant from the Right was “Impeach Earl Warren,” then the chief justice of the United States. A darling of conservative Republicans before his appointment, those Republicans turned against him when his Court ended segregation, expanded the scope of the First Amendment, and required that Miranda warnings be given to defendants at the time of their arrest and that states had to provide an attorney for anyone who could not afford one. Such decisions even prompted President Dwight D. Eisenhower to say his appointment of Warren to the Court was one of his two major mistakes. The other was also appointing William Brennan.
None of the current Court’s recent decisions have pleased anyone on the left and even in parts of the center. Its approval ratings have been plummeting ever since its majority shifted back to the conservative side of the political spectrum. These decisions have had an impact on such issues as electoral reform, gun control, church-state separation, gender issues, covid-19 mandates, political contributions, and a woman’s right to choose, arguably the hottest of all current hot button topics.
Plummeting may be too mild a word. According to the Gallup poll, the Court’s approval rating dropped 18 points since just over a year ago, when it had a 58 percent approval rating. It dropped to 49 percent in July. Then, in September, it refused to delay implementation of the controversial Texas abortion law. That dropped its approval rating even further, to just 40 percent—the lowest for the Court in the 22 years Gallup has been measuring its public approval.
A Monmouth University poll also found widespread public dissatisfaction with the Court’s Texas abortion law decision. In that poll, 54 percent of U.S. adults said they disagreed with it, while only 39 percent said they approved.
If the Court waters down or overturns Roe v Wade, as it is expected to do, that will almost certainly send the Court’s approval rating plunging even further. In June, Gallup found that 58 percent of Americans want Roe v Wade to be left intact.
The same is true about gun control. Surveys show that 85 percent of Americans either want stricter gun control laws or want them to stay as they are. Only 11 percent want gun restrictions eased. Weakening or overturning any gun control laws will further damage the Court in the eyes of the public.
Perhaps the two most controversial proposals considered by the commission are expanding the size of the Court and setting term limits for its justices, who now enjoy lifetime appointments.
Expanding the Court’s size appears to be the most controversial and contentious issue.
Congress has fiddled with the size of the Supreme Court ever since the United States came into being in 1789. In 1937, President Franklin D. Roosevelt proposed what has become known as his “Court-packing plan.” Under it, a president could appoint one additional justice to the Supreme Court for each justice with at least 10 years of service who refused to retire within six months after his 70th birthday (his birthday; no woman had yet been appointed to the Court). The plan also set a maximum court size of 15 justices. FDR’s plan was rejected after a long and sometimes acrimonious debate.
In the early 1950s, to forestall any new court-packing attempts, the Senate approved a constitutional amendment to fix the Court’s size at nine members, but the amendment failed in the House.
Since then, were no further attempts in Congress to play with the size of the Court—until now. The House now has two proposed amendments before it. One, presented by the Republican House Freedom Caucus, would fix the Court’s size at nine justices. The other, introduced by Democrats, would expand its size to 13 justices. Neither proposal has any chance of succeeding.
Jewish law has much to say about who should be a judge and how a judge should exercise his or her responsibilities.
Maimonides, the Rambam, for one, extensively summarizes Judaism’s view in his Mishneh Torah: The Laws of the Sanhedrin, beginning with the qualifications required of a judge. (He also briefly deals with the subject in his Guide for the Perplexed and elsewhere.) Not only should a judge be well versed in the law itself, he said, but the judge must also be at least somewhat knowledgeable in other subjects that may be a part of any case to be judged. That is because the judge needs to be able to understand arguments that can often become a bit technical.
For example, Rambam lists among these subjects mathematics and the sciences. In today’s world, a judge who does not understand how statistics work, say, would not be able to grasp the intricacies of probability. The same is true of a judge whose eyes glaze over during oral arguments or expert testimony in a particularly complex technology case.
That a judge should be somewhat knowledgeable in diverse subjects fits well with a proposal debated by the court reform commission, which argues for an expanded Supreme Court because it might better incorporate diverse personal and professional perspectives.
Rambam also listed the seven fundamental qualities a judge must have: wisdom, humility, fear of God, disregard for financial gain, love of truth, love of people, and a good reputation. Whether all seven are required has been the subject of halachic debate since he listed them, but all agree that best efforts must be made to find such judges.
Disregard for financial gain especially fits well with the objections some on the commission raised against imposing term limits. (Biden opposes them, as well.) Opponents worry that judicial independence could be compromised by “a Justice who is eying future positions in government [and thus] might try to curry favor with political constituencies, or that a Justice who is eyeing future positions in industry or at a law firm might decide cases in light of those plans,” as the report summarized their views.
If a judge’s character before becoming a judge is tainted in any way, that person is unfit to serve as a judge, Rambam said. This would have disqualified Justices Clarence Thomas and Brett Kavanaugh.
A judge must also be patient, allowing both sides to make their arguments without showing favoritism in any way. Judges, Rambam said, must “love the truth, hate violence, and flee from anything that tastes of unrighteousness.” In other words, judges may not knowingly rule in favor of someone they know is in the wrong merely because the judges sympathize with the litigant’s argument, for whatever reason.
Judges also “must have a courageous heart to save the oppressed from the oppressor.” Women in Texas are oppressed by its new anti-abortion law. The court majority, however, has continually shown no courage in its repeated refusals to delay the law’s implementation while it considers the law’s constitutionality.
To be sure, Rambam said, judges must also be careful to weigh all the facts and the law before rendering a decision, but a judge who delays judgment in cases in which immediate harm could come to someone is considered by Rambam to be among the unrighteous.
Judges also must consider the advice of the most learned legal experts with the best credentials and not rely solely on their own reading of the law. Judges who accept the views of less-learned experts because those views agree with theirs are “wicked” and “arrogant in their decisions.” That is because such attitudes “will lead to perversion of judgment,” he said.
This, then, is some of what Jewish law has to say, as Rambam explained it. Sadly, it is not how appointments these days are made to any court, much less the high Court, and it is also not how too many who don judicial robes approach what should be a sacred task.
Shammai Engelmayer is a rabbi-emeritus of Congregation Beth Israel of the Palisades and an adult education teacher in Bergen County. He is the author of eight books and the winner of 10 awards for his commentaries. His website is www.shammai.org.