“Because Freedom Can’t Protect Itself”
This year marks Justice Ruth Bader Ginsburg’s twentieth anniversary on the United States Supreme Court. Justice Ginsburg likes to tell her version of a story that has many versions: 1
“What is the difference,” she asks, “between a bookkeeper in New York’s garment district and a U.S. Supreme Court Justice?” The answer: “One generation.”
So much can change in a generation as we learn from this week’s Torah portion, Sh’lach L’cha, in which God, fed up with the lack of faith shown by the Israelites, condemns a whole generation to die in the wilderness.
What was their crime? Moses, at God’s behest, had sent twelve scouts into the Promised Land to see “what kind of country it is” (Numbers 13:18). Forty days later, ten of the twelve scouts came back with reports not only of the Land’s plentiful milk, honey, and fruit, but also of fortified cities and powerful inhabitants so big that “we looked like grasshoppers to ourselves, and so we must have looked to them” (13:27-28, 33).
Their report brings the whole community to tears. And by the next day their fear elicits an odd request, as they shout at Moses and Aaron: “If only we might die in this wilderness! Why is the Eternal taking us to that land to fall by the sword? Our wives and children will be carried off” (14:2-3).
God is incensed. After all God has done for them, have they so little faith? Perhaps their own low self-esteem (“we looked like grasshoppers”), carried over to their trust in God as well. The midrash wonders if they were losing faith in themselves or in God. When the faint-hearted spies say, “We cannot attack that people, for it is stronger than we” (13:31), the Babylonian Talmud (Sotah 35a) and, later, Rashi, note a grammatical ambiguity-the last word of that verse, mimenu, can be read either as “than we” or as “than He.” Are the ten scouts suggesting that the people in that country are stronger than He-than God? No wonder then that God devises a punishment to fit the crime: “I will do to you just as you have urged Me. In this very wilderness shall your carcasses drop. . . . [But] Your children . . . shall know the land that you have rejected. . . . You shall bear your punishment for forty years, corresponding to the number of days-forty days-that you scouted the land: a year for each day” (14:28-34). God holds the adults accountable, but the children, too young to have known slavery, will live to enter the Land.
And what of the other two scouts-Joshua and Caleb? Even though they saw what the others saw, their report urges the people to have faith: “. . . the Eternal is with us. Have no fear of them!” (14:9). God expresses approval of Caleb, calling him “imbued with a different spirit (ruach acheret)” (14:24), and Joshua becomes the successor to Moses, eventually leading the Israelites into the Promised Land. For their faith, and presumably for their willingness to speak up, God not only spares them while punishing the other ten scouts with death, but also allows Caleb and Joshua-alone among their generation-to survive beyond the forty years and to enter the Promised Land with the next generation(s).
The midrash wonders something else that we might wonder as well: surely some of the people favored the view of Joshua and Caleb, even if they did so silently. Why were they too condemned to die in the wilderness? And its answer suggests God wanted them to speak up, not remain silent.2 Thus long ago, and still today, Judaism teaches the need to speak out when one disagrees, and the dangers of silence in the face of wrongdoing-whether our own or other people’s. This requires moral courage, perhaps, that is the ruach acheret, the “different spirit” God imbued in Caleb.
It is a message Justice Ginsburg takes to heart. In an address to the American Jewish Committee shortly after her appointment to the Supreme Court, Ruth Bader Ginsburg said, “The demand for justice runs through the entirety of the Jewish tradition. I hope, in my years on the bench of the Supreme Court of the United States, I will have the strength and the courage to remain constant in the service of that demand.”3
Justice Ginsburg is now eighty years old. A review of her twenty years on the Supreme Court reports:
Justice Ginsburg has been one of the Court’s most prolific writers. She is regarded as a steadfast protector of women’s rights and the rights of the unpopular and disfavored. Justice Ginsburg is not dissuaded from expressing her dissenting views, even when she is alone in her opinions. Indeed, Justice Ginsburg is more frequently a lone dissenter than any other justice on the court save Justice Scalia.4
Indeed, Justice Ginsburg seems to embody the slogan of her former employer, the American Civil Liberties Union, “Because freedom can’t protect itself.”
This week brings us Memorial Day in the United States, established in 1868 as a day of remembrance for those who have died in our nation’s service. Even as we remember them and offer our gratitude for their sacrifice, we might also do well to remember those with a different spirit (ruach acheret) who defend our ideals without weapons of war-including those who uphold our laws in the pursuit of justice and peace; laws influenced by the teachings given to our ancestors in the wilderness, as they made their wavering, wary way toward freedom.
- Told by U.S. Supreme Court Justice Ruth Bader Ginsburg in the Introduction to part I of the 2008 PBS documentary, The Jewish Americans
- “The Silent Ones Died Also,” The Torah: A Modern Commentary, Revised Ed., gen. ed., W. Gunther Plaut (New York: URJ Press, 2005), p. 994; see also B’midbar Rabbah 16:23
- Jewish Women’s Archive: Ruth Bader Ginsburg
- Supreme Court Review: Justice Ruth Bader Ginsburg
Rabbi Lisa Edwards, Ph.D., is the leader of Beth Chayim Chadashim, the world’s first gay and lesbian synagogue. She is a thoughtful and reasoned advocate for same-sex marriage, environmental protection, and social and economic justice. Her writing appears in books including Kulanu: All of Us (a URJ handbook for congregational inclusion of gay and lesbian Jews) and The Women’s Torah Commentary.