Hilton Head Island, SC – June 24, 2012
The Chapel Without Walls
Deuteronomy 19:15-21; Isaiah 1:21-26
A Sermon by John M. Miller
Text – “And I will restore your judges as at the first, and your counselors as at the beginning. Afterwards you shall be called the city of righteousness, the faithful city.” – Isaiah 1:26 (RSV)
Law is a fundamental building block of human society. Without law, we would be savages. Even with law, sometimes we act like semi-savages. No doubt that is one of the main reasons laws came into being thousands of years ago: to keep us from degenerating into self-centered savagery. An oft-used phrase to describe the most civilized nations is to say that they follow “the rule of law.” In order to survive, autocracies and dictatorships must be laws unto themselves. But with the rule of law, nations can become what nations ought to be.
The Code of Hammurabi is one of the oldest written documents in the world. It was set down by a Babylonian king about 1800 BCE. Half of Hammurabi’s Code covers contract law, and the other half criminal and other legal issues. It established what is called the lex talionis, the law of retribution. If someone struck someone and knocked out a tooth, then the antagonist would have his own tooth knocked out. We heard this in the reading from Deuteronomy, which surely copied the Babylonian code as a valid precedent. Moses told Israel that it should be “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot” (Deut. 19:21). As harsh as the lex talionis sounds to us today, it was a very important advance in the administration of justice, because it put limits on legal retribution. You could not demand more damage to the person who wronged you than the exact duplication of the wrongdoing itself. Thus the rule of law is intended to establish the boundaries within which we are to live, and beyond which we must never go.
Jews have always called the first five books of the Old Testament “the Torah.” As you know, the word Torah means “law.” Obviously most of the material in those five books is not a legal code, like the Code of Hammurabi. But there are many chapters, especially in Exodus, Leviticus, and Deuteronomy, which are a litany of laws with the rationale for each of those legal requirements or restrictions. It is highly significant that Deuteronomy 19:15 clearly decrees, “A single witness shall not prevail against a man for any crime or for any wrong in connection with any offense that he has committed; only on the evidence of two witnesses, or of three witnesses, shall a charge be sustained.” If you watch Law and Order, which is virtually a sacrosanct activity in our house, you know that both the prosecution and the defense try to get as many witnesses as possible to make their case stronger. This legal principle is at least three thousand years old.
But that important legal distinction isn’t why I selected the reading from Deuteronomy. I chose it because after talking about the necessity of multiple witnesses in a criminal proceeding, it says this: “If a malicious witness rises against a man to accuse him of wrongdoing, then both parties to the dispute shall appear before the Lord, before the priests and the judges who are in office in those days; the judges shall inquire diligently, and if the witness is a false witness and has accused his brother falsely, then you shall do to him as he meant to do to his brother, so you shall purge the evil from the midst of you” (Deut. 19:16-19).
There are three things we may note from these verses. First, false witness is declared to be utterly unacceptable. This principle is so important that one of the Ten Commandments is, “You shall not bear false witness.” The rule of law cannot maintain order if false witness is ever allowed in a law court.
Secondly, these verses from Deuteronomy tell us that as early as 32 centuries ago, and probably even before that, the Israelite judicial system had judges. We frequently use the term “the rule of law.” These words imply that nation-states which seek to establish justice and equity are obliged to have judges to adjudicate legal disputes. In the best of all possible worlds, judges would not be necessary, because disputes would be reconciled among the contending parties outside a courtroom. But this isn’t the best of all possible worlds, nor shall it ever be, and so judges are essential to the proper exercise of the rule of law.
Thirdly, and most importantly, law and justice are to be administered before God. “Both parties to the dispute shall appear before the Lord, before the priests and judges who are in office in those days” (v. 17). Thus when a witness is sworn in for testimony in court, the question, as we all know, is, “Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?” Justice is a theological issue! Law (Torah) exists because of God! We need judges who judge with equity and fairness, who make their rulings based on valid legal precedents, in order to translate the laws of God into the laws of men!
The prophet Isaiah lived in Jerusalem about 750 BCE. He was incensed by judicial miscarriages of justice. Judges were taking bribes, and the law was regularly being subverted. Thus Isaiah quoted God as saying, “I will restore your judges as at the first, and your counselors at the beginning. Afterward you shall be called the city of righteousness, the faithful city” (Isa. 1:26). There can be no clearer illustration that judges and justice are theological issues.
But how should our judges be selected? Who should control the process? Back in biblical times, the religious establishment named the judges. In my opinion, that is a very bad idea. Religion disrupts its own sphere of influence so often that it certainly shouldn’t also insert itself into the judicial process. Under monarchies, the kings named the judges. That was acceptable, provided the monarchs were fair-minded. In democracies, judges are either elected by the people or appointed by the legislative and/or executive branches of government.
I have served as pastor to two state supreme court justices. In one state judges were elected, and in the other they were appointed. Both of them were outstanding attorneys, human beings, and Christian gentlemen. Again, in the best of all possible worlds, judges would perhaps be named by the legal profession itself, with an absolutely equitable and non-partisan commission of attorneys acting on behalf of their peers who would examine candidates and then propose judges on the basis of their findings. But also again, because this is not the best of all possible worlds, probably it would be impossible ever to find totally objective members for such an important commission, so our judges and justices shall likely continue to be elected or appointed.
From now on, I shall be talking about federal judges, and particularly about US Supreme Court justices, not about state, county, or local judges. And the question which prompts this sermon is this: Have our judges become too politicized?
Let us quickly review how all federal judges attain their offices. Whenever there are vacancies, the Senate Judiciary Committee looks over its list of acceptable candidates and recommends names to the whole Senate for confirmation. This sounds well and good. However, the Senate always is controlled by one political party or the other, and therein lies the problem. The administration of justice ought to be both non-partisan and bi-partisan, but sadly too often it isn’t. When the Judiciary Committee and the Senate have a majority of Democrats, attorneys or judges who are known to be Democrats are usually the ones nominated, and vice versa for Republicans. But what does genuine justice have to do with political partisanship? Shouldn’t the law be supra-political or extra-political? And if legal decisions are determined ultimately by politics rather than by law, is not the legal system corrupted by that very reality? All judges should always declare to both parties, along with Shakespeare, “A plague on both your houses!”
Occasionally the naming of federal district court judges creates a political brouhaha in the Senate, but almost every time a Supreme Court justice is proposed, there is usually a growing level of rancor in the process. In the past forty years, rarely does any Supreme Court nominee sail through the Senate without very virile and vocal opposition. Some Senators from the other party attempt to scuttle the candidates in any way they can. If anyone aspires to the judicial bench, for the good of the body politic, she or he should probably never engage in any overt or even covert political activity, simply to make the nomination process as nonpartisan as possible. Nominees should be chosen or rejected on the basis of their judicial experience and record, not their politics.
Two extremely important Supreme Court decisions in the past twelve years have gravely undermined the rule of law in this country. They are Citizens United vs. Federal Election Commission in March of 2010 and Bush vs. Gore in December of 2000. In Citizens United, the Supreme Court, under the maneuvers of the Chief Justice, John Roberts, took a fairly narrow case and turned it into an enormously precedent-setting major decision. You may recall that in 2008 a group had funded a 90-minute video which showed Hillary Clinton in an intentionally bad light. The McCain-Feingold campaign finance law prohibited corporations from running television commercials for or against any presidential candidates for thirty days before primaries. A group called Citizens United challenged that part of the law. From that relatively small issue, Chief Justice Roberts deliberately expanded the legal discussion to ask whether there were any monetary limits for individuals or corporations to express their political opinions in campaigns. Rushing the deliberations, in March of 2010, more than seven months prior to the November federal election, the court declared, 5-4, that there are no limits. You may recall how that election turned out. The majority of the court said that the free speech guaranteed by the Constitution prohibits any limits by anyone on political contributions.
That decision is a disaster for a democracy. What it means is that elections may and likely shall be purchased by the biggest donors. That proved to be generally true in 2010, and it shall become even clearer when the dust (or should we say dirt?) has settled after November 6 of 2012. This campaign shall have elicited by far the greatest total in contributions of any election in our history, in both relative and actual dollars. It is estimated that more than a billion dollars shall go into the presidential campaign alone, to say nothing of the other 535 Senate and House races. It is impossible accurately to calculate how badly this legal decision corrupts our system. In his written opinion on the Citizens United case, Anthony Kennedy, the so-called swing vote on the court, said that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” That is literally a breathtaking --- and an extremely alarming --- judicial finding. How could anyone, let along a justice of the United States Supreme Court, come to such a cavalier and illogical conclusion is beyond comprehension. It is true that money in itself does not automatically corrupt elections, but it is ludicrously false to say it could or would never corrupt them.
Far worse, however, is the Bush vs. Gore decision, in which Justice Kennedy also voted with the 5-4 majority. No one can forget what happened in the Florida presidential election in November of 2000. Legal precedent has long determined that election disputes should be decided by courts within the geographical location of the dispute. Since the problem was in Florida, and particularly in a few counties of Florida, the Florida Supreme Court should have decided the dispute. They did, and they, a majority of whom were Democrats, found in favor of Senator Gore. But the US Supreme Court insisted on taking over the case. After only a few crucial days of deliberation, they, a majority of whom were Republicans, found in favor of Governor Bush, and George W. Bush became President. Mr. Bush lost the popular vote by almost 600,000 votes, or 48.38% to 47.87%, but he won the sole vote deemed determinative by the Supreme Court, its own vote, and he did so by one sole vote, five to four. A very small cabal of five Americans put George W. Bush in office. Over a hundred and five million votes did not matter at all.
It is an enormous credit to the American democracy that there was not a revolution in 2000. A revolt would have been very understandable, because a fair election was stolen by five highly politicized justices. But it is not only conservatives who have subverted American law through two and a quarter centuries; liberals also most assuredly have done it. The claim is always made that the Supreme Court does not make the law; it only interprets the law. Tell that to Thomas Jefferson or Andrew Jackson or Abraham Lincoln or Franklin Roosevelt or Richard Nixon or Ronald Reagan. The fact that members of both parties might assail the Supreme Court for politicization might indicate it is justly carrying out its responsibilities. Then again, it might indicate that they are unjust in their judgments, and that politics is at the heart of their decisions.
Juries can make bad decisions. They are, after all, not attorneys who are trained in both justice and the law. Think, for example, about the O.J. Simpson decision. But attorneys, especially judges, should be fair and equitable. When they are not, democracy is threatened.
Is God a Democrat or a Republican? If biblical language is to be trusted, God is likely a monarchist, and He alone is the monarch. God is no doubt both amused and abashed by how we operate our governments, our legal systems, and ourselves. But the Bible is certainly crystal clear about one thing: God is immensely displeased by legal, institutional, or personal injustice.
Within a few days, the US Supreme Court shall issue its opinion on the Affordable Care Act. Whatever it finds will have huge implications for not only health care but many other issues as well. If it overturns the entire law, it also should overturn Social Security and Medicare, along with many other federally-mandated programs. In fact, if it overthrows the A.C.A., it may as well say that we don’t need a government at all, that each of us is and must be on our own.
Not that it really matters, but I want you to know I am not down on the concept of a Supreme Court. Such an institution is essential to the welfare of every nation. But I am severely down on a court, especially a 5-4 court, which uses partisan politics rather than reasoned legal precedents to make decisions which have profound effects on our society for many years to come.
This country desperately needs another constitutional convention to re-visit many key issues which have evolved in our history since the Constitution was first adopted in 1787. One of the things we most desperately need is a term limit, probably ten years, for all federal judges at every level of the judicial system. It is a scandal that, in a time when millions of people shall live into their 90s, a handful of people can hold the rest of us by our collective throat with their elderly, arthritic fingers. It also is colossally unjust.
Our legal system is probably as fair and just as any other in the large developed nations of the world. By no means are we about to collapse. But we are falling into some seriously bad habits, and we the people do not seem to be sufficiently alarmed. May God bless America, and especially in light of such a homiletical harangue as this, may God bless every American judge who sits on any judicial bench at any level of American government and jurisprudence. May there be liberty - - - and justice - - - for all!