During the Jewish High Holy Days, we read from the biblical book of Leviticus where God enjoins the ancient Hebrews to leave the gleanings of their fields for the poor. I began to think about the conservative members of the current Supreme Court.
Though it’s 5000 years later, stick with me. Conservative nominees, including Judge Kavanaugh, have been telling us that decisions begin and end with the words of the law, a claim we call textualism. How can a textualist obey the ancient biblical injunction about gleanings?
Gleanings are what’s left in the fields after the harvest. Are textualists absolving us from caring for the poor, and, if not, how do they suggest we accomplish it?
Most of us don’t have gleanings – we’re not farmers. Are only farmers responsible to the poor, allowing the rest of us to take comfort from their work. That would be a “strict” textual solution but it’s not very satisfying since the Bible repeatedly stresses our obligation to the poor. Then how should we do it?
Led by Scalia, textualists often point to specific examples of how it was done when the authoritative texts were laid down. Of course, that means ancient solutions become less and less relevant. Scarcer and scarcer gleanings are left for more and more of the poor and they are harder and harder for the destitute to reach. So, the textualist philosophy gradually cancels the maxim itself. The textualists’ approach means the poor can go hungry as gleanings decline in the modern world.
An obvious solution is to identify the objectives of the biblical passage about gleanings and figure out how it might most appropriately be done. Scalia fought that idea. He railed against the possibility that the principles or values that underlie legal injunctions might be interpreted by judges. Liberals might try to figure out how to care for the poor instead of declaring the injunction unworkable. In other cases, liberals might try to assure accurate trial results, not merely obedience to traditional formalities. The defendant lost but had a chance so it’s over.
The late Justice Blackmun once cringed when a father beat his son so badly that the boy’s brain was destroyed and he became almost literally a vegetable. “Poor Joshua” he wrote and was lambasted for letting his sympathy affect his judgment. You may remember that Justice Sotomayor was subjected to the same attack. Sympathy, in the textualists’ view, negates legality. Since when, however, should one be ashamed of sympathy for the unfortunate? Since when is justice defined by not caring about the impact of the rules we create on the people who have to live with them?
Textualism camouflages abuses written into the legal system by justices without principles, as if “the law,” and not the judges, were doing all the damage. It’s time to disqualify judges for lack of empathy. Does the law have no gleanings to offer? No principles of caring and just behavior with which to help fill in the gaps and the changes in legal meanings that take place over time? I have never believed that the written law is responsible for the harm done by judges who mangle it with closed hearts and eyes blind to reality.
Brett Kavanaugh, Trump’s latest nominee, continues the charade of denying that their cramped sense of justice is crucial to the decisions they make. Regardless of what the FBI finds about what happened to Dr. Ford, Kavanaugh has not justified our confidence by evasively blaming everything on his reading of past decisions.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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