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September 30, 2023
Author(s): Rabbi Wes Gardenswartz,
Sukkot Day One
Would You Rather Be a Supreme Court Justice or a RICO Defendant?
Choosing Ice Cream vs. Choosing Life
September 30, 2023 — 15 Tishrei 5784
Temple Emanuel, Newton, MA
I have two classmates from the Harvard Law School class of 1986 who are extraordinarily famous. World famous, but for different reasons.
One of them, Elana Kagan, is a Justice on the United States Supreme Court. She just made news recently because she has argued that the nine justices of the Supreme Court should be held accountable for their ethical practices, and that power without accountability is not a healthy combination in a democracy.
The other of them, Kenneth Chesebro, made news recently for being indicted as one of the 19 defendants in the Georgia RICO case for allegedly attempting to overturn the 2020 election. Mr. Chesebro is presumed innocent. The prosecution must prove its case beyond a reasonable doubt. But if convicted, he faces jail time.
I have been thinking so much recently about their different trajectories: Supreme Court Justice. RICO defendant. And I have been wondering how did their paths diverge so dramatically?
After all, I remember clearly, vividly, what it felt like to be a One L at Harvard Law School in the fall of 1983. I was there. Shira was there. We were their classmates. I am Justice Kagan’s classmate. I am defendant Chesebro’s classmate. And I remember clearly, vividly the feeling, 40 years ago, of optimism, of hope; that all these bright legal minds were going to make some big contribution in the field of law.
And here is my question: how did it come to pass that two young, idealistic, bright young future lawyers would go in such dramatically different paths? What is that? What is the principle at play here? And how does it connect back to us, we who are neither Supreme Court Justices nor RICO defendants?
Deuteronomy has this iconic teaching. God says:
I have put before you life and death, blessing and curse.
Choose life…
Now this is curious. Who, if given the choice to choose life or death, would choose death? Who, if given the choice to choose blessing or curse, would choose curse? What kind of choice is that when one choice is clearly desirable, and the other choice is clearly terrible? The Torah must be saying something here about what it means to choose.
Put it this way: There were about 600 students in the Harvard Law class of 1986. Four sections of 150 each. If those 600 students had been asked, upon registering: Please make a choice. Would you choose to become a Supreme Court Justice, or a RICO defendant indicted for subverting our democracy, obviously 600 out of 600 would have said: I’ll pick the Supreme Court Justice. The RICO defendant thing is not for me.
So, if 600 out of 600 would have chosen to become a Supreme Court Justice, if 600 out of 600 would have emphatically rejected becoming a RICO defendant, how then did Kenneth Chesebro, forty years later, become a RICO defendant? What does that teach us about the nature of choosing?
At first blush we might think that choosing is like being in line at JP Licks. It’s finally our turn at the counter. Do we want vanilla or chocolate? Cake batter or Oreo? Salted caramel or rocky road? The answer, and the main point of this sermon, is salted caramel. That is always the right answer. Just saying. That is what choosing means in the context of ice cream: what flavor do you choose now, in the moment?
But that must not be what choosing means when Deuteronomy uses the term. Because no one would choose to become the RICO defendant.
So what does choosing mean when the Torah tells us choose life?
To explore that, one more question. We have just finished the season where the main concept is teshuvah. Aseret ymai teshuvah. The ten days of teshuvah. Teshuvah literally means return, from the Hebrew word lashuv, to return. Why return? Return to what?
Putting all this together, I think this is what is going on: We complicated humans have multiple aspects to our personalities. We have a more noble side. And a less noble side. A more ethical side. And a less ethical side. A more selfless side. And a more selfish side. To use the language of rabbinic theology, all of us have a yetzer hatov and a yetzer harah, the good inclination and the bad inclination. These two aspects of our personality are perpetually in tension with one another.
Our mission in life is to put our more noble side, our more ethical side, our more selfless side, at our core; to put our yetzer hatov at our core; and to fortify and strengthen our core. Teshuvah, return, means return to our core. Fortify our core. Strengthen our core. Return to the best version of ourselves. Because life constantly presents us with opportunities to not be the best version of ourselves. It is so easy, so tempting, so constant, to fall prey to our not best self. That is why early Genesis teaches that sin always crouches at our door. Any of us, at any time, can become our own worst enemies by substituting our worse self for our best self. It takes constant modulation, constant titration, constant intentional work, to keep our better self ascendant. That is why we have RH and YK, to reset, to return, lashuv, to our better self.
Choosing in the Deuteronomy sense is the opposite of choosing in the JP Licks sense. At JP Licks, we are choosing the flavor that appeals in this moment. In Deuteronomy, we are recommitting and returning to a timeless best version of our core.
Ken Chesebro worked for Professor Laurence Tribe for 20 years doing work to strengthen democracy. That was at his core. One of the utter mysteries of his case is why he changed, why somebody who for so long had worked so thoughtfully with Professor Tribe to strengthen democracy would undermine the democracy he had championed. But his story reminds us that choosing in the Deuteronomy sense is not about a temporary preference, but about an eternal commitment and recommitment.
Let me tell you a story about what strengthening our core, and not losing our core, looks like for those of us who are neither Supreme Court justices nor RICO defendants. Shortly before Rosh Hashanah, I got a gracious email, out of the blue, from a long-time member who writes: Rabbi, I am not going to be able to be in person at the High Holidays services this year, but I want you to know that I love our shul, I love our services, I love our clergy team, I love your sermons. Rabbi, I love you. Signed Irene Bloomstone. The day before Yom Kippur, erev Kol Nidrei, Irene passed away. She was laid to her eternal rest the day after Yom Kippur.
I learned two things about Irene. She did not only radiate love to the Temple, to our clergy team, to me. She radiated love to everyone she met. She told so many people that I love you. She did it all her life, including the very end of her life when she was medically challenged, she was still radiating love.
Irene embodied the law of the radiator, it is the simplest and most ineluctable principle in the universe. What you radiate out comes back to you. If you radiate out love, love comes back to you. If you radiate out negative energy, negative energy comes back to you. Since Irene radiated out positive energy, her family received countless emails like this:
There are no words that can convey the devastating loss of your Mother!! She was the most remarkable, the most loving, the most supportive soul. Each of us felt wrapped in the blanket of her love. Her Neshama shone so brightly to all who were lucky enough to be near and with her. She was like the sun on earth beaming her pure light to all. The world, and each of us in it, will forever be a better because of her. From my heart I send my love and deepest, most profound condolences.
And like this:
My heart is broken in a million piece’s , and therefore I can’t imagine the pain you are both going through. Your mother was the biggest light, and she made everyone feel so special, and important. In reality she really was the special one, but she never took the spotlight. I loved her so much…
If we have a core, and we keep it and strengthen it our whole life, and we do not lose it, good things happen. That is why Sukkot, the reward after the hard work of teshuvah, is called zman simchateinu, the festival of our joy. It is joyful when our nobler angels prevail–better for the world, better for us. Choose life. Every single day. Shabbat shalom and Chag sameakh.