Is Elena Kagan The Next Aharon Barak? And Does Anyone Care?

Soon-to-be Supreme Court Justice Elena Kagan

It’s official – the Senate has confirmed Solicitor General Elena Kagan as our newest Supreme Court Justice (and our fourth ever female justice).
During her confirmation hearings, we heard numerous complaints that so little is known about General Kagan’s actual judicial and constitutional opinions. We heard that she has been careful not to write or say anything controversial, that may have been used against her. (And with our political climate, who can blame her?) So the reigning beef with Dr. Kagan was that we have no idea what kind of Justice she would be, and what opinions she might hold.
Well, there was one piece of information on her. But boy, what a piece it is!
A short time ago, a controversy had arisen around the one thing that General Kagan has let slip about herself (back when she was “merely” Dean Kagan, in a little place called Harvard Law School).
Apparently, Elena Kagan is a great admirer of Justice Aharon Barak.
According to the reports, in 2006, during her term as Dean of Harvard Law School, Elena Kagan introduced Justice Barak during an award ceremony as “my judicial hero.” She then added,

“He is 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.”

But what’s all the fuss about? So she admires some foreign judge that nobody’s ever heard of. So what?
Well, a big what.

Former Israeli Supreme Court Chief Justice Aharon Barak

Justice Aharon Barak just happens to be the former Chief Justice of the Israeli Supreme Court. And a very unique justice he was.
Justice Barak is extremely well known for vastly expanding (and many would say overstepping) the bounds of judiciary power, essentially enforcing a policy of limitless power while he was president of the court.
Prominent US appeals court judge and law professor Richard Posner, when reviewing Barak’s book in 2007, explained the Israeli judge’s philosophy thus:

“In Barak’s conception of the separation of powers, the judicial power is unlimited and the legislature cannot remove judges.”

Posner wrote that Barak “created out of whole cloth a degree of judicial power undreamed of by our… Supreme Court justices.”
Barak has consistently claimed that he believes the Court had the authority to decide any issue, removing all limitations on the judicial branch, and giving it the power to affect Israeli law and Israeli life as it sees fit.
One of Barak’s most extreme (and unusual)  opinions established that judges cannot be removed by the legislature, but only by other judges! (How’s that for separation of powers?)
His other unusual and controversial judicial opinions include:

  • that any government action that is “unreasonable” is illegal
  • that a court can compel the government to alleviate homelessness and poverty
  • and that a court can decide whether to allow the release of a particular terrorist as part of a political prisoner exchange package deal

Barak’s opinions have not only interfered with clearly political foreign policy decisions (like prisoner exchanges), but he has even chosen to countermand direct military orders. That a court would allow itself to get involved in specific military action, and rule it as allowed or not, is unheard of in Western jurisprudence. And bear in mind that this is all from a judge who believes that the legislature does not have the right to remove judges, rendering him essentially a one-court all-powerful-ruler, with no controls over him whatsoever.
Moreover, Justice Barak (and his court) had embraced the approach of ruling not only on matters of law, but generally on questions of overarching justice – which is much more subjective, and harder to set by law. One man’s justice is another man’s dictatorial whim.
On top of that, Justice Barak always considered it proper to allow absolutely anyone to challenge any government action (whether it affected him or not), and would rule on literally any issue or question – whether it was a matter covered by Israeli law or not. In the United States, we are required to have “standing” to file a lawsuit, and courts only have jurisdiction over certain matters – not over any question anyone in the world might ask them to rule on.  The Israeli Supreme Court under Barak, however, made it their regular policy to rule on literally any question whatsoever – legal and not so much.
In fact, Justice Barak spoke at the U of M Law School in November of 2009. At the event, one of the lawyers present asked him whether there is any question on which he would not be willing to rule in court. His clear and very public answer was that he would rule on any case whatsoever, and that he recognizes no limits on judicial power to decide cases – any cases, valid or not.
Now, I do not mean to say anything particularly negative about either Justice Barak or soon-to-be-Justice Kagan.
I have been generally quite favorably impressed by Justice Kagan. And Aharon Barak has authored many important, groundbreaking, very influential rulings. Justice Barak is a great and very well-respected jurist. In fact, when not-so-liberal Supreme Court Justice Antonin Scalia spoke at an awards ceremony honoring Barak, he spoke of his “profound respect for the man” – a respect that trumped their disagreements.
However, note that when then-Dean Kagan spoke of Justice Barak’s greatness as a judge, she spoke of him having “best advanced the values of democracy.” My only question is – is “advancing the values of democracy” really what we mean for our judges to do? Or do we want them to focus on actual questions of law, whatever Aharon Barak may think of an all-powerful, limitless judiciary?
[Photos: Wikipedia, ThinkProgress]