Yesterday morning, while I was
shamelessly snooping scanning the bookshelves of my significant other, a handsome book caught my eye. The title, Purposive Interpretation in Law, wasn’t very sexy, but the author’s name grabbed my attention: AHARON BARAK.
Yes, the Aharon Barak — the man whose name has been constantly invoked this week, over the past three days of Elena Kagan’s confirmation hearings. “The other
white meat Barak,” not be confused with our president Barack (Hussein Obama). The bugaboo of the rule of law, in the eyes of Kagan critics. Quite possibly “the worst judge on the planet,” in the words of failed SCOTUS nominee Robert Bork.
As I picked up Barak’s book from the shelf, a chill ran up my spine. I felt myself in the presence of a judicial Voldemort. Should owning a book by Aharon Barak be grounds for breaking up with someone? Is it tantamount to owning a lovingly dog-eared copy of Mein Kampf?
I needed to educate myself. Just who is Aharon Barak?
For those of you who haven’t been following the Kagan hearings as obsessively as we have here at Above the Law, Aharon Barak, 73, is a retired president (read: chief justice) of the Supreme Court of Israel. He has been repeatedly mentioned during the Kagan confirmation hearings because he is viewed in some quarters as a “judicial activist” — and because Kagan, while dean of Harvard Law School, bestowed effusive praise upon him. (Please note my deliberate avoidance of the term “fulsome praise.”)
At a 2006 awards ceremony at HLS, then-Dean Kagan described Barak as “the judge or justice in my lifetime whom, I think, best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.” She also referred to him as “my judicial hero.”
(Oy vey. I’m now imagining Kagan — who looks a bit like Bette Midler, leading us to dub Kagan “The Divine Miss K” — crooning “The Wind Beneath My Wings” to Justice Barak: “Did I ever tell you you’re my hero? You’re the jurist I would like to be.”)
At her hearings this week, Kagan was asked repeatedly about this praise of Justice Barak. Following the lead of the White House, which previously couched her remarks as merely a pro forma welcome for a visiting dignitary (and former Harvard student returning to campus), Kagan explained that she was essentially just doing her job as dean. As she explained to one Republican senator, “If you had come to Harvard Law School, I would have given you a great introduction too.”
Defenders of Kagan hasten to add that leading conservative judges, including Justice Antonin Scalia and Seventh Circuit Judge Richard Posner, have said nice things about Barak. Detractors of Kagan, in rebuttal, note that Scalia’s and Posner’s praise was less gushing than Kagan’s fan-girl rave. Furthermore, Scalia has noted his many disagreements he has with Barak, and Posner has also been quite critical.
Setting aside the question of whether Kagan was just being polite, just how objectionable is Aharon Barak? Here’s an overview of his place in Israeli judicial history, from the New York Times:
Israel does not have a formal constitution, but Judge Barak has written that a series of “basic laws” adopted by the Knesset essentially functions as one, and has asserted that courts have authority to determine whether future laws violate these basic laws. He is also an ardent champion of civil liberties; during the Persian Gulf war of 1991, he insisted the Israeli government hand out gas masks to Arabs in Israel-occupied territories.
The point that Israel doesn’t have a formal, written constitution is another point that Kagan made in defending her Barak love. It may be less “activist” for a judge to advance a robust conception of the judicial role if he’s not constrained by any constitutional text. Or, to make a more modest point, it may be inapposite to label Aharon Barak a “judicial activist” in the American style, given the significant differences between the Israeli and U.S. legal systems.
If one were to compare Barak to American jurists, two comparisons spring to mind — and they nicely capture what makes him such an important yet polarizing figure. Still from the NYT:
Aitan Goelman, a Washington lawyer who clerked for Judge Barak, compares him to two American chief justices: John Marshall, who established the principle of judicial review in the landmark 1803 case of Marbury v. Madison, and Earl Warren, who expanded the rights of criminal defendants.
“He’s like the Israeli John Marshall and Earl Warren wrapped into one,” Mr. Goelman said.
This makes Barak sound fairly appealing (despite the issues some might have with the Warren Court). But a piece in the Christian Science Monitor offers more-critical perspectives:
[Barak is] a controversial figure in Israel. Though he is lionized in legal circles, critics say he spearheaded a homogeneous court of secular elites that overstepped its bounds by promoting a universalist legal agenda out of touch with the rest of society.
Barak pushed “the belief that the court can intervene in any issue, including budget, foreign affairs, and security, which is opposite of what existed in the past…. They took powers which were not really in their hands,” says Avraham Diskin, a professor of political science at Hebrew University of Jerusalem, who argues that the justice turned Israeli jurisprudence on its head.
And how did Barak go about executing this alleged power grab? Although Israel doesn’t have a formal constitution, Barak is widely viewed as creating an analog to one:
In three decades on the Israeli high court, Barak sought to fill Israel’s constitutional vacuum by elevating “basic laws” which protect universal values – such as the right of movement, privacy, and property – into a quasi Bill of Rights for Israel that was used to strike down parliamentary laws, annoying lawmakers.
He was also more open to hearing legal petitions against government policies. He occasionally ruled on behalf of Palestinians who challenged Israel’s venerated security establishment. While security hawks accused him of butting in with lofty human rights considerations that Israel could not afford, human rights activists criticized Barak of being too deferential to the military.
If both sides are angry at you, you must be doing something right, no?
We’ve seen how different factions characterize Barak’s views. What does Barak have to say for himself, in his own words? Here’s an excerpt from a 1992 article that is widely cited as encapsulating his worldview:
In my eyes, the world is filled with law. Every human behavior is subject to a legal norm. Even when a certain type of activity — such as friendship or subjective thoughts — is ruled by the autonomy of the individual will, this autonomy exists, because it is recognized by the law…. Wherever there are living human beings, law is there. There are no areas in life which are outside of law.
“[T]he world is filled with law.” This does sound like the view of a judicial maximalist, doesn’t it? (And it also reminds me of the old Tootsie Roll jingle: “Whatever it is I think I see / becomes a legal norm to me.”)
Of course, it’s not fair to judge Aharon Barak based on a single paragraph. Barak’s jurisprudence is not easily summarized. He has had a very long judicial career — he joined the Supreme Court of Israeli in 1978, became president of the Court in 1995, and served until 2006, when he reached the mandatory retirement age of 70 — and he is a prolific writer and scholar. On top of his judicial opinions, Barak has written numerous articles and several books. In addition to the aforementioned Purposive Interpretation in Law, he has written The Judge in a Democracy and Judicial Discretion.
If you’d like to learn more about Barak, here’s his Wikipedia page (which, interestingly enough, hasn’t been updated yet to include any references to Kagan). If Wikipedia isn’t your thing — some see it as the archetypal “sketchy internet resource” — get yourself admitted to Yale Law School, where Barak is a visiting professor, and learn at the feet of the man himself.
Readers, what do you think of the controversy over Lady Kaga and Aharon Barak? Is Aharon her “Alejandro,” or is this a case of “Bad Romance”?
Praise for an Israeli Judge Drives Criticism of Kagan [New York Times]
Why is an Israeli judge Elena Kagan’s ‘judicial hero’? [Christian Science Monitor]
Bork Aims at Kagan’s ‘Judicial Hero’ [The BLT: The Blog of Legal Times via ABA Journal]
Bork takes on Kagan’s ‘immature theory of judging’ [Right Now / Washington Post]
As Kagan confirmation hearings begin, Republicans struggle for line of attack [Washington Post]
Purposive Interpretation in Law [Amazon]