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Originally appeared in LA Daily Journal, January 2000

Jewish Law and the Supreme Court:
Happy Millennium From an Ancient Legal Tradition

Rabbi Yitzchok Adlerstein

When a famous Washington attorney recently filed his Supreme Court brief, he provided the rest of us with a wonderful millennial bonus.

The brief concerned Florida’s notorious Old Sparky, and it was more remarkable for what it did not say than for what it did.  Nat Lewin made no reference to a single Supreme Court decision.  In fact, he does not cite a single instance of any case law whatsoever.

Lewin, writing together with his daughter and retired Israeli Supreme Court Justice Menachem Elon, attempts to shed light upon the “cruel and unusual punishment”  clause of the Eight Amendment.  Claiming to know what the framers of the Constitution meant – or should have meant – has become a pastime as American as sandlot baseball.  But Lewin builds his case on the strength of what likely is the world’s oldest continuously-practiced legal code.  He holds up the performance of Florida’s temperamental electric chair to the scrutiny of the Jewish Talmud, the backbone of Jewish law for the last two millennia.

The Court agreed to hear the case of an inmate on Florida’s death row, who claims that the state’s preferred method of execution is wired for failure.  It has required mutliple applications of electrical jolts to do its job, and induced foot-long licks of flame to jump from the head of one of its victims.  This, claims the inmate, amounts to a violation of his rights.

Lewin does not address the issue of whether or not all capital punishment itself is cruel and unusual.  Instead, he shows how Jewish legal tradition examined not only the outcome of punishment, but the procedure as well.  Methods of execution were banished if the Talmudic sages believed them to subject the prisoner to more pain than absolutely necessary, or resulted in great shame or bodily disfigurement.  He appends passages from four Talmudic tomes, as well as a twelfth century code authored by Maimonides.

Lewin’s essential point is that many of the pressing moral, ethical, and legal issues that are front-burner today were already painstakingly and lovingly considered by savants of the past.  Jewish law in particular surprises and delights moderns, because it not only suggests solutions, but teaches how complex moral issues can be attacked and dissected.  Within its ancient legal code are deep and detailed considerations of issues like privacy, allocating medical resources, the causes of violence, and many more.  So much of the future stands to be illuminated by the minds of those who specialized in pondering deeply and subtly. 

Many of us approached the new millennium with less than consummate joy and abandon.  One estimate projected that over 70% of Americans would have no special plans to celebrate.  Multiple concerns wrinkled our brows as we mulled over how we would ring in the new. 

We suffered from both too little, and too much.  On the one hand, we were not completely convinced that the successful completion of another millennium accomplished all that much for mankind.  Those of us in the legal professions had special cause to be mindful of the failures.  Looking backward a thousand years, one of the most prominent images we beheld was the lack of personal security.   For most of the world’s inhabitants, no Law governed  - or adequately protected  against –  the caprice of local despots, feuding monarchs, bands of brigands, and marauding armies that could snuff out lives and communities in a moment.

We would have liked to believe that the flowering of Law in the last set of centuries has made a major difference.  Yet, more people were killed by war or their own governments in the first decades of the past century, than the entire population of the Roman Empire at its height.  Jonathan Swift wrote that, “We have just enough religion to make us hate, but not enough to make us love.”  We seem to have enough Law to make personal security an expectation, but not a reality.  The specter of ruthless and bloody terrorism that threatened to accompany the birth of the new millennium added to our uneasy feeling that not enough of the old had changed.

On the other hand, we were burdened by too much of the new.  So much of our world had been taken over by the increasing invasiveness of new  electronic gadgetry which, we were told, could not be depended upon to keep the electricity running, or the water flowing, or planes guided steadily along their intended routes.

The future, we suspected, might offer the allure of the unknown and changes in inflection, but not  necessarily promise substantive answers.

How comforting we should find Mr. Lewin’s brief.  It reminds us that when the future fails, there is much to applaud in the past.  

The Law means many things to many of us.  It settles disputes; imposes order where chaos would otherwise reign; it rights many wrongs.   It provides many of us with a way to earn a living, and sometimes assist human beings and communities in their struggles.

But beyond all else, Law must always imply the search for Truth.   How reassuring it is to be reminded that while the issues and concerns are wondrously new, that Truth need not be reinvented in every generation.  Some of the richest troves of it are gifts from the past, patiently waiting to contribute to a richer future.

Rabbi Yitzchok  Adlerstein directs Project Next Step of the Simon Wiesenthal Center in Los Angeles.  He holds the Sydney M Irmas Chair in Jewish Law and Ethics at Loyola Law School

Other articles by Rabbi Adlerstein:

• Genome Jitters Forward, July 2000
• Jewish Law and the Supreme Court LA Daily Journal, January 2000
• Shiraz on the Potomac Jewish Press, Sept. 2000

• Packaging Judaism for Non-Jews  Forward, March 2000

• Judaism Gives Seniors a Better Deal various Jewish publications, January 1999