From the Harvard Law Record, via Ed Whelan, we learn that Elena Kagan considers Israeli supreme court justice Aharon Barak her “judicial hero.” According to Kagan, Barak “is the judge who has best advanced democracy, human rights, the rule of law, and justice.”
However, it would appear that Kagan’s judicial hero actually has very little regard for the rule of law and, indeed, is the antithesis of what a judge should be. That, at least, has been my understanding of Barak. It is also the view of Judge Richard Posner, and he makes a compelling case:
[A]lthough he 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 different–and,to an American, a weirdly different–juristic universe. I have my differences with Robert Bork, but when he remarked, in a review of [Barak’s book] The Judge in a Democracy, that Barak “establishes a world record for judicial hubris,” he came very near the truth.
Barak is John Marshall without a constitution to expound–or to “expand,” as Barak once revealingly misquoted a famous phrase of Marshall’s. . . .Israel does not have a constitution. It has “BasicLaws” passed by the Knesset, Israel’s parliament, which Barak has equated to a constitution by holding that the Knesset cannot repeal them. That is an amazing idea: could our Congress pass a law authorizing every American to carry a concealed weapon, and the Supreme Court declare that the law could never be repealed? And only one-quarter of the Knesset’s members voted for those laws!
What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices. He puts Marshall, who did less with more, in the shade. . . .Among the rules of law that Barak’s judicial opinions have been instrumental in creating that have no counterpart in American law are that judges cannot be removed by the legislature, but only by other judges; that any citizen can ask a court to block illegal action by a government official, even if the citizen is not personally affected by it (or lacks “standing” to sue, in the American sense); that any government action that is “unreasonable” is illegal (“put simply, the executive must act reasonably, for an unreasonable act is an unlawful act”); that a court can forbid the government to appoint an official who had committed a crime (even though he had been pardoned) or is otherwise ethically challenged, and can order the dismissal of a cabinet minister because he faces criminal proceedings; that in the name of “human dignity” a court can compel the government to alleviate homelessness and poverty; and that a court can countermand military orders, decide “whetherto prevent the release of a terrorist within the framework of a political ‘package deal,'” and direct the government to move the security wall that keeps suicide bombers from entering Israel from the West Bank.
If Barak really is Kagan’s judicial hero, and I think we should take Kagan at her word, then she is manifestly outside the legal mainstream (in “completely different juristic universe,” to borrow the phrase Posner applies to Barak), and should not serve on the U.S. Supreme Court. Her regard for Barak as a hero shows Kagan to be radical in a way that Diane Wood, for example, is not. Wood is a liberal to be sure, but she possesses a long history of generally operating faithfully within the constraints our system places on judges.
Barak recognizes no such constraints, and we must now doubt whether Kagan would either. Remember that, as Posner explained, Barak has done more in the way of leftist activism with less to work with than Kagan would have at her disposal.
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