Supreme Court Justice Antonin Scalia Cites a Talmudic Maxim of Ben Bag Bag in a dissenting opinion

Well it is a good sign to see the quotation of the Talmud spreading throughout our culture right up to the highest court in our land. Or is it?

Consider this instance of Talmudic citation from an Orthodox blog:

A reader directed me to a dissenting opinion of Justice Antonin Scalia issued today in a case regarding an elected judge sitting on a case involving a major campaign contributor... Justice Scalia wrote:

A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed—which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.

We just don't immediately get the Scalia logic.

The sage Ben Bag Bag in the Mishnah refers to constant study of the whole Torah. He says it is prudent to study the Torah closely and constantly. By doing so you shall find all wisdom in it.

Scalia is saying you can't say the same thing about a single clause of the constitution.

In this reading, the application of that Mishnah to this context is wrong. The analogy is defective. Nobody would claim that you could find all the world's wisdom in the study of  one due process clause in the constitution.

Now you may argue that Scalia's writing is opaque and that he really meant to say that some people treat the whole constitution like it was the whole Torah. And those people parse this one clause for wisdom like they would perform an exegesis on a single verse from a "Divinely inspired text."

We get that.

But wait. We wonder if Scalia invokes a Talmud quote to make a subtle dig at his opponents on the court in the majority.

They say that it is their understanding of the “Due Process Clause” that a judge who is beholden to a donor in some specific circumstances must recuse himself from a case. In this scenario, by citing the Talmud, Scalia sets out to mock the majority -- saying that they treat the constitution as if it was divinely inspired sacred scripture. And not only that. They parse their “sacred” texts like those hair-splitting Talmudists. Do we detect a negative connotation to the Talmud?

Hmm. If that interpretation and exegesis of what Scalia does is correct, then truly that is not a positive reading of today’s Scalia Talmud citation.

And finally, do we in fact engage here in our own Talmudic hair splitting about whether Scalia is mocking the other justices through his use of the Talmud?

And so the beat goes on.