Scalia as a Talmudist

RABBINIC LAW: Justice Scalia As Talmudic Scholar (Nathan Lewin, The Jewish Press). Excerpt:

A decision Scalia wrote for a unanimous Supreme Court in April 1999 concerned the meaning of the word “gratuity” in a federal law that prescribes criminal punishment for bribery of non-judicial federal officials. The case concerned then-Secretary of Agriculture Michael Espy, but it is an important decision that could today affect, by analogy, the criminal convictions of former governor of Virginia Bob McDonnell and New York Assembly Speaker Sheldon Silver.

The Supreme Court ruled in United States v. Sun-Diamond Growers of California that a trade association that had given Espy tickets to the U.S. Open tennis tournament and treated him to meals and free luggage did not violate the federal prohibition against “gratuities” if the prosecution did not charge or prove that the gifts were “linked” to any official act performed by Espy.

The Supreme Court’s ruling was not remarkable or unexpected. Espy had been acquitted by a jury in a publicized trial, and the Sun-Diamond prosecution was an independent counsel’s last-ditch effort to justify charging as criminal any gift given to a federal public official by a lobbyist. No Supreme Court justice dissented from Scalia’s opinion. But the opinion revealed an interesting side of the justice. It began as follows (the text is at page 400 of volume 526 of the United States Reports):

“Talmudic sages believed that judges who accepted bribes would be punished by eventually losing all knowledge of the divine law.”

What fate awaited a judge who took bribes was not remotely relevant to the legal issue the Supreme Court decided in Scalia’s written opinion. But the controversy debated before him made Scalia think of a rabbinic dictum that he chose as a starting point for his legal analysis. Even more remarkable is that the teaching of the “Talmudic sages” that Scalia invoked is not a well-known Jewish proverb. It is known only to well-versed students of Rashi’s commentary on Torah.