In 19th-century Poland, Rabbi Levi Yitzhak of Berditchev was known as the defender of the Jewish people who would even stand up to God in order to protect the people. One year, Rosh Hashanah occurred on Shabbat, as it does this year, and Reb Levi Yitzhak issued a decree limiting God’s work on the day of rest.
“Ribbono Shel Olam, Master of the Universe! Today is Rosh Hashanah, when you write us down in the Book of Life or the Book of Death for the year ahead. However, today is Shabbat. So, it is forbidden on Shabbat to write a negative verdict in the book. However, you are permitted to inscribe us in the Book of Life, since when a life is endangered one may save it, even if it means violating the Sabbath. This is my ruling as the local rabbi of this community and you, God, must abide by it.”
This year, God listened to Reb Levi Yitzhak, and just before Rosh Hashanah and Shabbat began, Justice Ruth Bader Ginsburg died. We have lost the most prominent Jewish jurist of our time, a hero, in the words of Chief Justice Roberts, “a tireless and resolute champion of justice.” In 1971, she helped launch the Women’s Rights Project of the ACLU, and that led to her groundbreaking work to apply the 14th Amendment’s equal protection clause to issues of gender. She wrote, “I had the good fortune to be alive and a lawyer in the late 1960s when, for the first time in the history of the United States, it became possible to urge before courts, successfully, that society would benefit enormously if women were regarded as persons equal in stature to men.”
Ruth Bader Ginsburg’s view of the law followed two important principles of Jewish law, and I want to say a word about each. First, Justice Ginsburg saw the law as a living process, subject to development and change. Our constitution believes in equal protection under the law, but those who wrote those words, limited by the times in which they lived, might not have seen a contradiction between equal protection and the subordination of women or Black slaves under the law. As a contemporary jurist, Justice Ginsburg saw her task as connecting the values imbedded in the law with the constantly changing social reality of life in America. She insisted that we need not be limited by the blinders on earlier generations.
This mirrors how the rabbis read the Bible. The Bible speaks of the death penalty for disobedient children, it permits slavery, it limits the rights of women, it commands wars of annihilation. The rabbis read those laws but put them up against biblical verses affirming fundamental human equality—all living beings are made in the divine image. Human dignity is fundamental in the Bible, and human dignity was understood in recent rulings as permitting women and men to choose their loving partners so no one has to live and die alone. Changing how the law is applied does not mean ignoring the intent of the founders; it means updating the work of the founders, whether Jefferson or Moses.
And Justice Ginsburg also understood that the law must include narrative to be a whole system. The law is never decided in isolation from the lives of the people it affects. Law and human story need to be brought together. In rabbinic tradition, that is why our classic book of law, the Talmud, is filled with stories to illustrate how the law is developed and applied. There is no ivory tower for the rabbis.
In 2007, the Supreme Court heard the case of Lilly Ledbetter, a plant supervisor who discovered, near the end of her career, that she had been paid less than her male co-workers. She filed a claim and it reached the court, where the majority found against her on the technical grounds that she had filed her complaint too late. Ginsburg wrote that “the Court’s insistence on an immediate contest overlooks common characteristics of pay discrimination.” In other words, she looked at how people lived and worked, decided that pay cases often are based on information discovered too late. Justice Ginsburg urged Congress to change the law. And, in 2009, it did.
She applied this principle in the case of banning late-term abortions, a procedure sometimes approved by the American College of Obstetricians and Gynecologists. For Ginsburg, exceptions matter, real life matters, medical opinion matters. None of these things are constants and Justice Ginsburg stayed informed and active to the end.
In defining the wise, the Mishnah says that a wise person sees what is aborning. If Justice Ginsburg saw what was coming in the world around her, she was surprised by one thing: her own status as a star. There was the slogan, “You can’t have truth without Ruth,” and, of course, the tattoos and coffee mugs that said “Notorious RBG.” She became a role model and idol for a generation of young people and young people considering the law.
In a little while, we will read the prayer Unitaneh Tokef, with its refrain, “Who shall live and who shall die.” If six months under some form of COVID-19 quarantine has not made this clear enough, the news of Justice Ginsburg’s death as the holiday began reminds us of life’s uncertainty, and of the fact that sometimes our prayers are not answered in the affirmative; sometimes the answer is no. Our prayers for her healing from pancreatic cancer were recited most Shabbatot in the synagogue. Justice Ginsburg was the one person outside our circle of family and friends whose name was regularly added to our mi sheberach prayers for wellness.
Unitaneh Tokef ends with a proposed solution to our uncertainty. We will soon recite, “But Teshuvah, Tefillah and Tzedakah can avert the severity of the decree.” TESHUVAH. Turning, pivoting, seeing the world differently and acting differently. Last night something changed in our world, a tipping point perhaps, and we all need to think about our role in getting the world back in balance. TEFILLAH. Thinking, praying, coming together, being constant. Tefillah means all of those things. Today and tomorrow we gather in prayer seeking mutual support and inspiration for the weeks and months ahead. TZEDAKAH. Charity, redressing injustice. After prayer comes action, and one of the first actions we can do is to help others, financially and through calls and contact. Engaging in a life of flexibility, thoughtful focus and helping others is our best response to uncertainly and our most appropriate response to repaying Justice Ginsburg for her life of dedication and her struggle to stay alive for another court year.
But there was one more value she stood for in her personal life that is worth highlighting and mirroring. No one on the court was more of her ideological opposite than the late Justice Antonin Scalia. They were rarely on the same side of a controversial issue. But off the bench they were best friends. When he died, she said he left her a “treasure trove of memories.” In a world where it is increasingly hard to imagine preserving relationships with those with whom we disagree politically, Justice Ginsburg gave us a model. Their relationship and disagreements became the subject of an opera entitled “Scalia/Ginsburg.”
I can’t help but be reminded of the famous rabbinic debating partners Hillel and Shammai. We are told in the Mishnah, written 2,000 years ago, that despite all of their differences on matters of law, and they rarely agreed, they still would eat in one another’s homes and allow their children to marry one another. Justice Ginsburg reminds us that sometimes our common humanity encourages us to find common interests and even common ground with people we see as our opponents. This is such an important lesson for Rosh Hashanah.
In 2011, Ginsburg defined her contribution to America and the law in the following language: “To keep our country true to what makes it a great nation and to make things a little better than they might have been if I hadn’t been there.”
What a beautiful summary of a life. Help the institutions you care about stay true to their values and make the world a little better. Justice Ginsburg will be well remembered, and I thank her for modeling how a person of energy and values can make a difference. T’hi Zichra Baruch—may her memory continue as a blessing in our lives.
And on this Rosh Hashanah, this day of turning and looking to the future, let us be inspired by her example. She played a long game on issues that matter to each of us. Let us pledge to pick up the baton she has left us and complete this relay race to make ourselves and our country better in the year ahead and beyond. Ken Yehi Ratzon—so may it be God’s will and ours.
Lishanah tovah tikatevu vitehatemu. May we each be inscribed on this Shabbat of Rosh Hashanah for a good, healthy, safe, productive and sweet New Year.
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