Justice - Shmini 5785 / 2025
April 25, 2025
I had already written a d’varling for tonight, about Aaron’s response to the death of his son and how the silence of those who suffer invites us to respond with care. And then a congregant reached out to me this morning and asked if I could speak tonight about a breaking news story, the FBI’s arrest of Judge Hannah Dugan in Wisconsin, and what our response to this as Jews ought to be. What moral guidance can Torah offer for the world we’re in today?
First let me share a bit of context, and then I’ll talk Torah more broadly. The Department of Homeland Security changed their policies in February to shift the status of certain previously “protected areas” or “sensitive locations” – including courthouses, social service agencies, and houses of worship. These areas used to be legally protected from “immigration enforcement,” and now they are not. Or at least: public spaces within them are not. Private spaces are.
This sparked a lot of conversation among rabbis: if ICE shows up at the door, what is the ethically and legally correct response? The Union for Reform Judaism signed on with many other faith organizations in a lawsuit challenging that rescission of the “sensitive locations” policy. Meanwhile, the National Immigration Law Center’s fact sheet notes, “ICE still needs a judicial warrant to enter any private space, including a house of worship.”
In the case of Judge Dugan, Rep. Ryan Clancy notes that “ICE did not present a warrant before entering the courtroom; it is not clear whether ICE ever possessed or presented a judicial warrant.” (A judicial warrant is not the same as an “administrative warrant” from ICE.) This sounds to me like a parallel to how things work if ICE comes to a synagogue: they need a judicial warrant in order to enter “private space,” and it sounds like they did not show one.
Courtney Milan, a former clerk for Justice Sandra Day O’Connor, explains that the judge is accused of “obstructing” ICE through adjourning the proceedings and allowing the defendant to leave the courtroom through the jury box, “both official acts performed as a judge,” and that “a judge is given enormous discretion as to the operation of their courtroom in order to preserve due process.” The judge doesn’t appear to have done anything that merits FBI involvement.
If her arrest was retaliatory, that seems like erosion of due process. I know many of us are worried about that, especially amidst current tension between the executive branch and the judicial branch. The arrest of this judge comes on the heels of a rise in anti-judge rhetoric and hints of refusal to abide by judicial decision. There have even been claims that the judicial branch is meant to be subservient to the executive. Can Torah help us navigate this?
At the start of Torah we were in Eden, innocent and childlike, all of our needs met by God. In the book of Exodus we went down into Egypt, where we were enslaved by Pharaoh, our agency (and our humanity) denied. Now we are in Leviticus. We’re wandering in the wilderness, learning how to be a mature people with human agency who take responsibility and take care of each other. And that includes the institution of judges to help guide the people.
שֹׁפְטִ֣ים וְשֹֽׁטְרִ֗ים תִּֽתֶּן־לְךָ֙ בְּכל־שְׁעָרֶ֔יךָ אֲשֶׁ֨ר יְהֹוָ֧’’ה אֱלֹהֶ֛יךָ נֹתֵ֥ן לְךָ֖ לִשְׁבָטֶ֑יךָ וְשָׁפְט֥וּ אֶת־הָעָ֖ם מִשְׁפַּט־צֶֽדֶק׃
You shall appoint magistrates and officials for your tribes, in all the settlements that your God is giving you, and they shall govern the people with due justice. (Deut. 18:19)
Torah tells us that we should appoint judges and officers to govern the people with justice. Torah also tells us (a verse or two later) to pursue justice with all that we are. We might see shoftim v’shotrim, “judges and officers,” as somewhat akin to today’s division of government into coequal branches who together govern with justice, but it doesn’t occur to Torah that the shotrim might decide not to listen to the shoftim, e.g. that the judges and the rulers might be at odds.
Art by Steve Silbert.
I am envisioning a New Yorker-style cartoon, a line drawing of someone saying, “Don't you wish we lived in precedented times?” (So I asked my friend Steve to draw it.) After the pandemic, the insurrection, and the last hundred days or so of chaos, I think we’re all getting tired of living in “unprecedented times.” But once again, that’s what we’ve got. All we can do is study Torah in search of values and principles to guide how we respond to what’s unfolding around and within us.
In this week’s parsha, Shmini, Torah gives us instructions about what to eat and not eat, and descriptions of the right way to offer the korbanot, offerings / sacrifices. Torah says we have a choice: we can be like Aaron and follow the commandments, or we can be like his sons Nadav and Avihu who died after bringing ‘strange fire.’ Being a free people means claiming our agency to act, and hopefully choosing to act in a way that’s aligned with Torah.
Torah’s mitzvot are addressed to all of us, not just to judges or officials. Use honest weights and measures, don’t cheat people, don’t lie, don’t steal, feed the hungry, love the stranger for you were strangers in the land of Egypt: these mitzvot are incumbent on every Jew. And, Torah also has some words about what kind of person should be appointed as a leader, a person in authority – which for Torah was simultaneously a secular role and a spiritual one.
Torah teaches that a leader should not self-aggrandize. They shouldn’t be too wealthy, or have too many wives and horses, or bring the people backward to the way things were in constricted times. (Deut. 17:15-18) This comes at the very end of Torah. Later the sages of the Talmud and the Jewish legal tradition expound on it further, but the basic principles stand. Judges should be fair and honorable, and leaders should be humble and forward-looking.
So what should our response as Jews be to today’s headlines – any of today’s headlines?
There’s a story in Talmud about scholars who disagreed about a matter of Jewish law. One of them even disagrees with the Voice of God offering “the answer” from on high! That scholar quotes Torah back at God, saying lo bashamayim hee – “[wisdom] is not in the heavens, [you’ve given it to us].” And God laughs and agrees in apparent delight. The pinnacle of human development is when we claim our agency to interpret what’s just, and we act accordingly.
Torah is not in the heavens, and neither is justice. They are ours, to steward and keep.
This is the d'var Torah I offered at Kabbalat Shabbat services at Congregation Beth Israel of the Berkshires (cross-posted to the From the Rabbi blog.)