Judging Aharon

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By Benjamin Soskis

Published July 10, 2007, issue of July 13, 2007.
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Last March, when the American Association of Jewish Lawyers and Jurists decided to give its 2007 Pursuit of Justice Award to Aharon Barak, the recently retired chief judge of the Israeli Supreme Court, they chose a surprising colleague to present the honor: Antonin Scalia. The ceremony was held in the august interior of the Supreme Court of the United States, and in his introductory remarks, Scalia, quite comfortable on his home turf, quickly dispensed with one element of incongruity: He was not Jewish, he conceded, merely the most senior justice available. Yet he contended that his Queens upbringing provided him with a sufficient endowment of Yiddishkeit to justify the selection.

In singing Barak’s praises, Scalia then addressed the other obvious disparity between himself and the honoree. After 27 years of service, 12 as chief judge, Barak had established himself as one of the world’s foremost advocates of judicial activism. As perhaps the world’s leading expert on comparative constitutional law, he has also served as a lightning rod for those protesting the willingness of some American jurists to look toward foreign laws for instruction. Scalia happens to be one of the most vocal of those protesters, as well as one of the nation’s leading opponents of judicial activism. With the court’s two Jewish justices looking on (Stephen Breyer and Ruth Bader Ginsburg, also two of the most enthusiastic champions of foreign court decisions as juridical resources), Scalia offered a moving tribute to his “good friend” Barak. No other living jurist has had a greater impact on his own country’s legal system — and perhaps on legal systems throughout the world — Scalia argued. He went on to celebrate his fruitful and long-standing relationship with the Israeli judge, and to affirm a profound respect for the man, one that trumped their fundamental philosophical, legal and constitutional disagreements.

Yet not all who recognize the tremendous imprint that Barak has left on the Israeli legal system are as charitable. Barak stepped down from the court in September 2006, and no sooner had he left the bench than his admirers and detractors took up the question of his legacy. That it was profound, there is no dispute. Barak is so frequently referred to as the John Marshall of Israel, invoking the early 19th-century “father” of the American judicial system, that it has almost become an official title.

Israel lacks a written constitution, but in a 1995 opinion, in what Barak termed a “constitutional revolution,” he asserted that a series of “Basic Laws” passed by the Knesset protecting human rights should become a stand-in. He further posited that it was the court’s responsibility to review future Knesset enactments to ensure that they abided by those Laws. “He taught Israelis to think of themselves as individuals with rights,” said Pnina Lahav, a former student who now teaches constitutional law at Boston University. Barak has also pushed for an “open-door policy” on the court, which insists that all public issues, without regard to questions of “standing,” are justiciable. And so the Barak Court, among other controversial decisions, has challenged draft exemptions for yeshiva students, has ruled against a Knesset law forbidding the sale of pork, has required the military to alter the path of its security fence in order to minimize harm to Palestinian communities, has outlawed spanking; and has insisted that military interrogations not use “physical pressure” — read: torture — when interrogating prisoners, even in the case of a “ticking time-bomb.”

For Israelis on the political left, Barak is a bold champion of civil liberties in the face of majoritarian counter-pressures. To Barak’s critics on the right, on the other hand, these interventions represent a dangerous subversion of democracy, a sustained attack on the prerogatives of the Knesset, waged by a judicial “tyrant,” and an affront to Israel’s distinctive Zionist and Jewish heritage. As David Hazony, who is a scholar at the Shalem Center and editor-in-chief of Azure (a publication that has frequently criticized Barak), recently explained in an interview, the controversy over Barak’s tenure represents a fundamental disagreement over the nature of Israeli democracy. In Israel’s early decades, given the fragility of the Jewish state’s democratic culture and institutions, many citizens were willing to accept an overbearing Supreme Court. Now, however, Hazony contends, many Israelis feel that Israel has become constitutionally mature enough to be affronted by the court’s arrogating power from the democratically elected Knesset. Because of those concerns, Hazony said, “it’s become much more legitimate to criticize the Supreme Court in polite company.”

Recently, in a series of vituperative reviews and indignant counter-defenses, the debate has continued on this side of the Atlantic. Barak has come to represent for many in the United States both the attractions and the perils of a robust judicial activism in the service of civil liberties, and his legacy and international influence have become battlegrounds on which judicial liberals and conservatives wage their latest intellectual skirmishes. Barak himself has stoked this debate with last year’s publication of “The Judge in a Democracy,” a tidy brief for his distinctive jurisprudence, directed quite clearly at an American audience. In it, Barak argues that the role of the judge is to “bridge the gap between law and society,” interpreting statutes so that they are aligned with broader social realities and values, and to preserve “substantive democracy,” a good that extends beyond electoral participation to encompass basic individual human rights. His chapter on “The Judicial Role and the Problem of Terrorism” has received the most attention. Barak argues for striking a balance between the protection of human rights and the preservation of national security interests, but is most adamant in insisting that some degree of security might have to be sacrificed in order to preserve a nation’s democratic essence. As he wrote in a 1998 opinion that he quotes in his book: “Sometimes a democracy must fight with one hand tied behind its back. Nevertheless, it has the upper hand.”

Unsurprisingly, legal scholars who oppose judicial activism, and favor granting the executive branch a long constitutional leash to promote national security, trained their fire on Barak’s prescriptions. In Azure, Robert Bork lamented Barak’s “regrettable” international influence, accusing him of undermining democratic principles in the service of “judicial authoritarianism.” And in an only slightly more temperate review in the April issue of The New Republic, Richard Posner, a prominent U.S. Court of Appeals judge and a law professor at the University of Chicago, presents Barak’s book as “Exhibit A for why American judges should be extremely wary about citing foreign judicial decisions.” Barak, Posner explains, inhabits “a weirdly different… juristic universe” in which judges cannot be removed by the legislature and in which any citizen, regardless of his “standing,” can ask the court to rule on the legality of a government action (it probably did not help that Barak had referred to the reviewer, in a chapter rebutting his critics, as Robert Posner). Posner concedes that Barak “is by all accounts brilliant, as well as austere and high-minded,” characteristics appropriate for an “immature democracy, poorly governed”: the worthy profile of a black-robed Wyatt Earp. But ultimately, he concludes, Barak’s book instructs us that “some foreign legal systems… are so alien to our own system that their decisions ought to be given no weight by our courts.”

It is equally unsurprising that many American liberal legal scholars reject this strategy of admitting Barak’s personal virtues while denying the transportability of his jurisprudence. Far from assuming that the divergent Israeli legal system, and the judicial activism that it fosters, should discourage emulation, these scholars insist that Barak’s legacy should serve to inspire American jurists to bridge the difference, perhaps because they appreciate the fragility of rights even in a more established constitutional system. To cite one example, at a conference held in Tel Aviv last December, commemorating Barak’s retirement, Yale law professor Owen Fiss, one of America’s leading constitutional scholars, announced that the curtailment of civil liberties in the United States in the wake of 9/11 led him to an even greater appreciation of Barak’s ability to balance the preservation of human rights with the dictates of military necessity. “What was once an attitude of admiration,” Fiss declared, “has become one of marvel.”

Yet even in Fiss’s homage, there is a faint echo of Posner’s dismissal; a “marvel” connotes a certain exceptionality, even an exoticism, which can actually discourage emulation. One might even argue that Barak’s outsized judicial persona courts this paradox. In his recent writing, Barak has done much to humanize the role of the judge. He describes the process of interpreting law as a profoundly human one, in which the adjudicator is constantly balancing, testing, agonizing. As he himself frequently declares, and as he ends “The Judge in a Democracy,” “as I sit at trial, I stand on trial.” But that judicial personalism carries with it some liabilities, for it allows Barak’s critics to praise the man while shucking his judicial principles, to emphasize the judge’s temperament while dismissing the legal opinions he authored and the legal system he helped to construct.

At least some of the spectators wondered whether a similar if more subtle strategy was on display that March night at the Supreme Court. In his celebration of Barak, Scalia had described him as a judicial pioneer, stressing that the Israeli judge had struggled with questions concerning the nature and limits of his responsibilities as a jurist that Scalia, as a resident of a more mature constitutional system, had not had to confront. With this pronouncement, Scalia exposed a crucial condition of their intellectual camaraderie: the recognition that the substantial differences of the constitutional systems in which they operated necessarily produced divergent judicial philosophies. This insinuation angered Boston University’s Lahav. At the ceremony’s conclusion, she approached Barak, her former teacher, to complain that Scalia had celebrated his friend only to sequester him within the exceptionality of the Israeli legal system. Why didn’t you confront Scalia, she asked, and let him know that he, too, could follow your example, championing vulnerable rights and liberties, if he only willed to do so?

The activist judge smiled but did not respond, offering, perhaps, at least one lesson that night in the virtues of judicial restraint.


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