A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” 8 e Babylonian Talmud: Seder Nezikin, Tractate Aboth, Ch. V, Mishnah 22, pp. 76-77 (I. Epstein ed. 1935). (footnote omitted). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not.
Scalia apparently thought that no detailed citation was needed in 1999 to support the prediction made by “Talmudic sages” regarding the punishment in store for bribe-taking judges. Yet the more well known Pirkei Avot direction of “hafoch ba ve-hafoch ba de-kula ba” called for a painstakingly lengthy demonstration of its source.
To be sure, in 2009 Justice Scalia had yeshiva-trained law clerks – Yaakov Roth, who is now a litigation lawyer with the Washington office of Jones Day, and Moshe Spinowitz, now a tax lawyer at the Boston office of Skadden Arps. Roth and Spinowitz may have pointed Scalia in the direction of Ben Bag Bag’s famous instruction in Pirkei Avot. But who and what moved Scalia to cite “Talmudic sages” in his 1999 opinion may remain a mystery forever. None of the eight law clerks he had between 1998 and 1999 appear to have had any background in Jewish teachings. Where did he hear the Mechilta’s unusual admonition? And did he construe it correctly? Does the original source (and Rashi’s paraphrase) mean that the judge will “lose all knowledge of the divine law” or that the judge’s teachings of divine law (i.e., Torah) are destined to be forgotten? The Hebrew text allows for both interpretations.
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Scalia believed the study of Talmud improved understanding and proper application of legal doctrine. On this account he liked to hire law clerks who had yeshiva training. And this gave him an unusual appreciation of observant American Jews. Some were surprised at how frequently he accepted invitations to participate at scholarly sessions organized by Chabad or to speak at Agudath Israel events.
He spoke in June 2008 at an annual dinner of Agudath Israel in New York City. Knowing that I was an early friend of his and that I had encouraged him to accept Agudath Israel’s invitation, the organization’s leadership asked me to make the introduction. I told them that my wife and I would be on a long-planned private visit to Morocco on the date of the banquet.
“No problem,” I was told. “We will send a film crew to where you are in Morocco. It will film your introduction of the Justice, and we will play the film before Justice Scalia speaks at the banquet.”
A film crew took the two-hour trip from Rabat to Fez, Morocco, where I stood at the bima of the seventeenth-century Ibn Danan Synagogue (now only a historic site because there are not enough Jews nearby to make a minyan) and delivered a glowing introduction. (My wife made me repeat its delivery three times before she was satisfied it would meet the expectations of the justice and the audience.) It was promptly dispatched to New York, and Rabbi David Zwiebel notified me in an e-mail that it was excellent and fitting for the occasion.
On my return to America, I learned that the showing of the film malfunctioned, and that what I expressed in Fez in tribute to my famous friend was totally unintelligible when played at the banquet. I was told that Scalia rose after this debacle and said: “Nat Lewin is usually a hard act to follow, but this time it’s easy.”
He then delivered, to a dais and audience of hundreds of black-hatted men, a memorable tribute to America’s deep respect for religion and religious observance. He declared that America’s Founding Fathers never sought to exclude religion from the public square and recounted how proud he was that in America the president had ended his address after the September 11 attack with the words “God bless America” – a plea for divine help that no European leader would consider expressing.
