Bench Memos

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Kagan, Aharon Barak, and the “Litmus Test” of Standing


I’ve already summarized Judge Posner’s critique of Elena Kagan’s “judicial hero,” Israeli justice Aharon Barak, who, Kagan says, is “the judge or Justice in my lifetime whom [sic] … best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.”  I’ve just run across an Israeli legal expert’s damning exposé of Barak’s judicial approach.  I’ll highlight here his critique of Barak’s approach to the important issue of standing (i.e., the doctrine governing who has the right to sue over an alleged legal violation):

How a judge applies the rules of standing is a litmus test for determining his approach to his judicial role.  If we liberalize the tests for standing, we will usher in a new era for judicial decisionmaking whose ramifications are far greater than the issue of standing itself.  This is the case because liberal rules of standing enable courts to hear matters that ordinarily would not find their way before a court.

A judge whose judicial philosophy is based on the view that the role of the judge is to decide a dispute between persons with existing rights is very different from a judge, like Barak, whose judicial philosophy is enshrined in the belief that his role is to create rights.

And here’s his summary of some of the wild results that Barak’s approach to standing yielded:

The following are several questions the Supreme Court of Israel has been able to consider because of its liberal standing rules:

Did the Attorney General exercise his discretion properly in deciding not to indict someone?

Did the Prime Minister exercise his discretion properly when he decided not to dismiss a cabinet minister against whom an indictment had been issued for bribery and embezzlement of public funds?

Did the Minister of Justice exercise his discretion properly in deciding not to extradite someone suspected of committing a crime outside Israel?

Did the government act lawfully when it held political negotiations over a peace agreement at a time when it did not have the confidence of Parliament?

Did a parole board act lawfully when it reduced a sentence imposed by a civil or military court?

Now, lest you think that this critique might be unfair, I’ll reveal what you may already have guessed:  the Israeli legal expert I’m quoting (with a few trivial changes* to disguise his authorship) is Aharon Barak himself, from his 2002 Harvard Law Review article, “A Judge on Judging: The Role of a Supreme Court in a Democracy,” 116 Harv. L. Rev. 16, 106-107.

I would submit that any American lawyer of sound mind and learning, in encountering Barak’s description of his approach to, and decisions on, standing, would conclude either that the Israeli legal system is radically different from ours or that Barak is a wildly aggressive judge.  In neither case would the American lawyer see Barak as some sort of model to emulate.

But that’s evidently how Elena Kagan regards Barak.  Kagan was fully familiar with Barak’s article, and his position on standing, long before she proclaimed him “my judicial hero.”  In October 2002, she moderated a Harvard law school discussion (video here) of Barak’s article that featured Barak himself.  Beyond describing Barak as a “great, great judge” (at 6:18 in the video), she proclaimed that his article would “immediately assume a very prominent position in the literature of judges thinking about judging” and that it should be added to the “very short and very distinguished list” of “classics” on the topic.  (See roughly 7:00-9:00.)  In his own remarks, Barak reiterated his view that standing should be expanded as much as possible, including over executive-branch decisions whether or not to prosecute.  (See somewhere in 28:00-34:00 range.)

Let me make clear that I am sure that Aharon Barak has many admirable qualities, and his life story, including escaping from the Jewish ghetto in Nazi-occupied Lithuania, is an amazing and inspiring one.  There is ample reason why he merits respect.  But it’s a far different matter for an American lawyer—a Supreme Court nominee, no less—to regard him as one’s “judicial hero.”

* Without affecting their meaning, I have reordered some of the sentences and have added paragraph breaks.  Here’s how the fourth sentence (a passage from one of Barak’s opinions) reads in the article:  “A judge whose judicial philosophy is based merely on the view that the role of the judge is to decide a dispute between persons with existing rights is very different from a judge whose judicial philosophy is enshrined in the recognition that his role is to create rights and enforce the rule of law.”


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