The Right Balance

Where does power and authority lie in the Jewish tradition? The answer to this question has varied throughout history, but fundamentally, God is the source of law and commandment. In the Biblical period, the priests were the intermediaries between human and divine. Beginning with the Mishnah and Talmud, rabbis took on that role, but in many times and places throughout Jewish history, there have been checks and counterweights to the main authority.

While we don’t normally think this way about Judaism, competing interests are an important component of the system of power within the community. The same is true for democracy, where checks and balances are a central pillar. It is not enough for a nation to hold elections because that can lead to a tyranny of the majority. A democracy must have respect for minority rights and institutions that balance each other so that no one part of the government can dominate.

Israel and the United States are currently faced with important challenges to their democratic identity. The Knesset is considering a law that would allow the government coalition to override decisions of the Supreme Court and would give the ruling prime minister a monopoly on the selection of judges to serve on the body. Hundreds of thousands have protested what they consider would be the end of an independent judiciary that is essentially the only current check on the executive/legislative branch.

In America, many are frustrated with the politicization of our Supreme Court, where it seems the justices make rulings based not on legal principles but on their preferred policy outcomes. The current court has struck down a right to an abortion with the reasoning that no such right is explicitly written in the constitution. On the other hand, the same court is likely to strike down the government’s plan to cancel student debt because of a “major questions doctrine” that requires Congress to explicitly delegate authority to the executive branch in cases of significant consequence to the politics and economy of the nation. Such a doctrine is nowhere to be found in the constitution and has no real history in American legal theory.

Frustration with a system that seems designed only to thwart the policies of the side you support seems to be endemic in both the US and Israel. In America, it has led liberals to call for reform of the Supreme Court and an increase in the number of justices. In Israel, the religious right has railed against the perceived liberal bias of the high court. Now that a right religious government is in power, it is not surprising that it is looking to reduce the power of the court.

Stable governments look to find equilibrium. When one branch asserts too much power, another will often try to rein it in. This search for statis helps prevent radicalization, and Rabbi David Golinkin of the Schechter Institute in Israel has shown this week that checks and balances have always been a part of the Jewish tradition. In Biblical times, the king was always kept in line by the prophet. In the Talmud and later medieval times, majority rule by a community was balanced by the authority of the rabbi. In Babylonia, the exilarch (secular ruler of the community) shared power with the geonim (the rabbinical heads of academies).

One could extend Rabbi Golinkin’s argument into the modern period as well. Within the contemporary synagogue, the rabbi and the board of trustees must work together, and each has its own authority. Within the Conservative movement, different institutions balance each other out: the rabbinical seminaries, the United Synagogue of Conservative Judaism, and the Rabbinical Assembly. Each group has its own power base and leads in different ways.

For Israel and the US to remain vital democracies, they must find a way to balance the political forces in each. Courts serve as an important place to protect the rights of minorities, but they can also overreach and suppress the will of the people. Finding the right balance is tricky, but without it we are faced with either chaos or authoritarianism. Let’s hope both countries find a middle path.


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