January 21st: Yitro
THIS WEEK IN THE TORAH
Rabbi David E. Ostrich
While the highlight of Yitro is the revelation of the Ten Commandments at Mount Sinai (Exodus 20), the earlier part of the sidra has some more subtle but equally important lessons. The context is the visit of Moses’ father-in-law, Jethro. He brings Moses’ family—wife Zipporah and sons Gershom and Eliezer—from Midian to join the newly freed Hebrews. They had apparently stayed at home in Midian when Moses was off in Egypt. Now, after more than a year apart from Moses, the family is reunited. As important as national liberation is, the Torah reminds us that family and individual relationships are vital as well.
While observing the newly freed Israelite society, Jethro notices that Moses is trying to run everything all by himself. “Moses sat as a magistrate among the people, while the people stood about Moses from morning until evening. But when Moses’ father-in-law saw how much he had to do for the people, he said, ‘What is this thing that you are doing to the people? Why do you act alone, while all the people stand about you from morning until evening? ...the thing you are doing is not right; you will surely wear yourself out, and these people as well. For the task is too heavy for you; you cannot do it alone.’” (Exodus 18.13-18) Jethro then counsels Moses to set up a hierarchy of administration and justice—advice that Moses takes. In other words, before the presentation of God’s law, the Israelites have to figure out how to organize themselves—and thus set up a system where God’s law can be transmitted and translated from God’s infinity to the individual situations of human life. The law originates with God, but it is put into practice by humans. As the Psalmist observes, “Hashamayin shamayin l’Adonai, v’ha’aretz natan liv’nay Adam. The heavens belong to the Lord, but the earth is given over to humans.” (Psalm 115.16)
This brings us to a less Divine but similarly hierarchical disposition of authority. Theoretically, the U.S. Supreme Court speaks on the law qua law and does not get involved in politics—a realm the Constitution assigns to the Legislative and Executive Branches. However, the law and the realm of day-to-day life are certainly connected, and, if Supreme Court decisions are untranslatable and unapplicable, then we have problems. Consider two examples.
The first is the Shelby vs. Holder decision from 2013. Shelby County, Alabama, and a large number of other (mostly) Southern counties had been under Justice Department supervision in which any changes in voting rules or districts needed approval. Whereas most state and local governments operate with relative sovereignty, these particular districts had a long history of discrimination against African Americans and other racial minorities and were thus penalized with Federal supervision lest they resort to their old discriminatory habits. The counties argued that the determination of their discriminatory conduct was from long ago (the 1960’s), that it was no longer necessarily valid, AND that the list in the statute was unfair because it did not include many other counties (many in the North) where discrimination is routinely practiced. There is logic to this argument, and Pennsylvania is an example. No counties in Pennsylvania are on the list, and yet civil rights advocates object to a number of Pennsylvania rules that are considered unfair—including Voter Identification Laws. The Court sided with Shelby County and the other supervised districts, declaring the law’s provisions null and void and instructing Congress to legislate protections that are fair and up-to-date. It would seem that Congress’ instructions were clear, but the decade-long gridlock in Congress means that an updated list of offending voting districts was and remains pretty much out of reach. So, while the Court’s decision is logical in a theoretical sense, the decision removed all constraints, and counties all over the country began enacting restrictive voting rules. It is like God decreeing things from heaven that are beyond the ability of earthly authorities to effect. Presumably God is aware of what is going on down here. We wonder whether the Supreme Court is locked in its ivory tower and not paying attention—or is ruling in a disingenuous manner.
The second example involves Abortion Rights and the anxiously awaited Supreme Court decision due in the Spring. (Next week, I shall discuss the issue of abortion rights from the Halachic and religious points of view.) For now, let us imagine that the Supreme Court changes the Roe vs. Wade decision and only allows abortions before 12-15 weeks. As Michael Gerson of The Washington Post observes, this is the way most European countries provide abortion rights, balancing the autonomy of a pregnant woman and the sanctity of the developing life inside her womb. If this were to be the decision, part of the logic would be that 12-15 weeks is plenty of time to arrange for an abortion. However, with the practicalities and politics, would this really be the case? Remember all the ways that anti-abortion forces work to impede the decisions and forestall abortion choices: blockading clinics and harassing patrons, threatening physicians, requiring hospital privileges and then refusing them, and fighting public funding for Planned Parenthood and other contraception and abortion providers. (Difficulty raising the money is frequently the cause for delays in getting the procedure.) In other words, if the anti-abortion people do not stand down and allow real clinic access, then what the Court might determine an “adequate amount of time” will not be adequate. Such a decision would ignore the real situations that women in trouble face and will in effect be a prohibition of abortion rights.
Our Constitution requires the Supreme Court to focus on the principles of the law. However, the Court should not be unconnected to the realities that people face—or to the ways that legal principles are actually applied in real life. We cannot expect the Supreme Court Justices to be on the same level of God, but we can expect them to be guided by practical wisdom and an awareness of the whole system over which they preside.