Bench Memos

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Kagan’s “Judicial Hero,” Aharon Barak


In 2006, Elena Kagan hailed Israeli supreme court justice Aharon Barak as “my judicial hero”:  “He is the judge who has best advanced democracy, human rights, the rule of law, and justice.”  (Harvard Law Record, 9/28/06.)

I’m not familiar with Justice Barak’s career, but I’ll note that other folks view him much less favorably than Kagan does—and that she may have a strange view of what “democracy” is and what the “rule of law” entails.  Here’s some of what Seventh Circuit judge Richard A. Posner has to say about Barak (in his book How Judges Think, pp. 362-368)*:

One of the most prominent of the aggressively interventionist foreign judges is Aharon Barak…. [H]is book on judging is Exhibit A for why American judges should be wary about citing foreign judicial decisions….  Although Barak is familiar with the American legal system and supposes himself to be in some sort of sync with liberal American judges, he actually inhabits a completely and, to an American, weirdly different juristic universe.…

[W]ithout a secure constitutional basis, Barak created a degree of judicial power undreamt of by our most aggressive Supreme Court justices….  Among the rules of Israeli law that Barak’s judicial opinions have been instrumental in creating are that any citizen can ask a court to block illegal action by a government official even if he is not personally affected by it …; that any government action that is “unreasonable” is illegal…; that in the name of “human dignity” a court can order the government to alleviate homelessness and poverty; and that a court can countermand military orders….

Barak bases his conception of judicial authority on abstract principles that in his hands are merely plays on words.…  For Barak, [the term “democracy”] has a “substantive” component, namely a set of rights (“human rights” not limited to political rights, such as the right to criticize public officials, that support democracy), enforced by the judiciary, that clips the wings of elected officials.  This is not a justification for a hyperactive judiciary, but merely a redefinition of it.

To him [interpretation] is a practice remote from a search from the meaning intended by the authors of legislation….

Armed with such abstractions as “democracy,” “interpretation,” … and (of course) “justice” (“I try to be guided by my North Star, which is justice. I try to make law and justice converge, so that the Justice will do justice”), the judiciary is a law unto itself.

Posner also quotes Judge Bork as writing that Barak “establishes a world record for judicial hubris.”

See also this AUL memo on Barak.

* I now see that Posner’s discussion in his book draws heavily from this New Republic book review of his, “Enlightened Despot,” which the reader may more easily consult.


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