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Enlightened Despot

By RICHARD A. POSNER April 23, 2007 Richard A. Posner is a judge on the U.S. Court of Appeals for theSeventh Circuit and a senior lecturer at the University of Chicago Law School.

Note: Taken from the New Republic. Since this article seems to have been scanned badly and the New Republic hasn’t bothered to fix it, I took it upon myself to correct the errors created during scanning, mostly involving missing spaces. None of the content was changed in the process.

The Judge in a Democracy By Aharon Barak (Princeton University Press, 332 pp., $29.95)

Aharon Barak, a long-serving justice (eventually the chief justice) of the Supreme Court of Israel, who recently reached mandatory retirement age, is a prolific writer, and this is his most recent book. It is an important document, less for its intrinsic merits than for its aptness to be considered Exhibit A for why American judges should be extremely wary about citing foreign judicial decisions. Barak is a world-famous judge who dominated his court as completely as John Marshall dominated our Supreme Court. If there were a Nobel Prize for law, Barak would probably be an early recipient. But although 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 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 (“we must never forget it is a constitution that we are expounding”). Israel does not have a constitution. It has “Basic Laws” 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a law authorizing every American to carry a concealed weapon, and the Supreme Court declare that the law could never be repealed?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. (He borrowed from Marshall the trick of first announcing a novel rule in a case in which he concludes that the rule does not apply, so that people get accustomed to the rule before it begins to bite them.) 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 apolitical ‘package deal,’” and direct the government to move the security wall that keeps suicide bombers from entering Israel fromthe West Bank.

These are powers that a nation could grant its judges. For example, many European nations and even some states in the United States authorize “abstract” constitutional review – that is, judicial determination of a statute’s constitutionality without waiting for a suit by someone actually harmed by the statute. But only in Israel (as far as I know) do judges confer the power of abstract review on themselves, without benefit of a constitutional or legislative provision. One is reminded of Napoleon’s taking the crown out of the pope’s hands and putting it on his own head.

Barak does not attempt to defend his judicial practice by reference to orthodox legal materials; even the “Basic Laws” are mentioned only in passing. His method, lacking as it does any but incidental references to enacted provisions, may seem the method of the common law (the judge-made law that continues to dominate many areas of Anglo-American law, such as contracts and torts), except that common-law rules are subject to legislative override, and his rules are not. The significance of this point seems to elude him. He takes for granted that judges have inherent authority to override statutes. Such an approach can accurately be described as usurpative.

Barak bases his conception of judicial authority on abstract principles that in his hands are plays on words. The leading abstraction is “democracy.” Political democracy in the modern sense means a system of government in which the key officials stand for election at relatively short intervals and thus are accountable to the citizenry. A judiciary that is free to override the decisions of those officials curtails democracy. For Barak, however, 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 the elected officials. That is not a justification for a hyperactive judiciary, it is merely a redefinition of it.

Another portmanteau word that Barak abuses is “interpretation,” which for him is remote from a search for the meaning intended by the authors of legislation. He says that the task of a legislature in passing statutes is “to bridge the gap between law and society,” and that the task of the judge in interpreting a statute is to “ensure that the law in fact bridges the gap between law and society.” This is very odd – isn’t the statute the law, rather than the intermediary between the law and the society? What he seems to mean, as further suggested by his statement that “whoever enforces a statute enforces the whole legal system,” is that a statute should be interpreted so that it is harmonious with the spirit or values of the legal system as a whole, which as a practical matter means with the judge’s ideal system, since no real legal system has a unitary spirit or common set of values.

This understanding of Barak’s approach is further suggested by his statement that a judge, in addition to considering the language and background and apparent purpose of a statute, should consider its “objective purpose … to realize the fundamental values of democracy.” This opens up a vast realm for discretionary judgment (the antithesis of “objective”); and when a judge has discretion in interpreting a statute, Barak’s “advice is that … the judge should aspire to achieve justice.” So a regulation that authorizes military censorship of publications that the censor “deems likely to harm state security, public security, or the public peace” was interpreted by Barak’s court to mean “would create a near certainty of grave harm to state security, public security, or public peace.” It is thus the court that makes Israel’s statutory law, using the statutes themselves as first drafts that the court is free to rewrite.

Barak invokes the “separation of powers” as further support for his aggressive conception of the judicial role. What he means by separation of powers is that the executive and legislative branches are to have no degree of control over the judicial branch. What we mean by separation of powers, so far as judicial authority is concerned, is that something called the judicial power of the United States has been consigned to the judicial branch. That doesn’t mean the branch is independent of the other branches. If each of the powers (executive, legislative, and judicial) were administered by a branch that was wholly independent and thus could ignore the others, the result would be chaos. The branches have to be mutually dependent, in order to force cooperation. So “separation of powers” implies “checks and balances,” and the judicial branch has to be checked by the other branches, and not just do the checking. And so rather than our judiciary being a self-perpetuating oligarchy, the president nominates and the Senate confirms (or rejects) federal judges, and Congress fixes their salaries, regulates the Supreme Court’s appellate jurisdiction, decides whether to create other federal courts, determines the federal judiciary’s budget, and can remove judges by means of the impeachment process. Moreover, the judicial power of the United States can be exercised only in suits brought by persons who have standing to sue in the sense of having a tangible grievance that can be remedied by the court. And because the judicial power is not the only federal power–there are executive and legislative powers of constitutional dignity as well – the judiciary cannot tell the president whom to appoint to his cabinet.

In Barak’s conception of the separation of powers, the judicial power is unlimited and the legislature cannot remove judges. (And in Israel, judges participate in the selection of judges.) Outfitted with such abstractions as “democracy,” “interpretation,” “separation of powers,” “objectivity,” “reasonableness” (it is “the concept of reasonableness” that Barak would have used to adjudicate the “package deal” for the release of the terrorist), 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”), a judge is a law unto himself.

Barak’s jurisprudence may seem to hold no interest for Americans other than as an illustration of the world’s diversity. But in fact it has important implications for the controversial issue of whether American judges should cite foreign cases as authority. I must explain what I mean by “as authority.” There is no objection to citing a foreign judicial opinion because it contains an insight that bears on the case at hand, just as one might cite a book or an article. But that is different from treating the foreign decision as a “precedent,” in the legal sense of a decision that has weight irrespective of the cogency of its reasoning. Some American judges think that just the fact that a foreign court has decided a case in a certain way is entitled to some weight in deciding a similar American case. So if a foreign supreme court has held that executing juvenile murderers is unconstitutional, its decision, even if not impressively reasoned, is one more twig to place in one of the pans of the scales of justice.

But what we learn from Barak’s book is that some foreign legal systems, even the legal system of a democratic nation that is a close ally of the United States, are so alien to our own system that their decisions ought to be given no weight by our courts. American judges distinguish between how they might vote on a statute if they were legislators and whether the statute is unconstitutional; they might think it a bad statute yet uphold its constitutionality. But in a Barak-dominated court, it would be very difficult to tell whether a judgment of unconstitutionality was anything more than the judges’ opinion that it was a dumb statute, something they would not have voted for if they were legislators. And such an opinion would have no significance at all for the question of constitutionality.

When Robert Bork attributes “judicial hubris” to Barak, he is using as his benchmark the American system. Many Israelis think Barak hubristic, but whether he is or is not in the Israeli setting is irrelevant to Bork’s judgment. All Bork means is that a judge who thinks like Barak is playing outside the boundaries within which American judges operate. Not that there are no hubristic American decisions, of course; but their authors make some effort to tether them to orthodox legal materials, such as the constitutional text. The tether is long and frayed when, for example, a judge decides that criminalizing abortion, or refusing to grant a marriage license to a homosexual couple, is a deprivation of liberty without due process of law. Such decisions could be thought lawless in the sense that the judge is making a discretionary judgment that owes nothing to an authoritative text and everything to the judge’s personal values. So there is a sense in which Barak merely carries to its logical extreme a tendency discernible in our courts. It is a matter of degree, but at some point a difference in degree can rightly be called a difference in kind.

Barak’s book is not introspective. He purports to derive his judicial approach from the abstractions that I mentioned, but they cannot be the real source of his jurisprudence, because they are as empty as they are lofty. In places the book is naive, as when Barak writes that “other branches [of government] seek to attain efficiency; the courts seek to attain legality.” Or when, in defending a ruling made during the Gulf war in 1991 requiring the Israeli army to distribute more gas masks to residents of the West Bank, Barak says that “we did not intervene in military considerations, for which the expertise and responsibility lie with the executive. Rather, we intervened in considerations of equality, for which the expertise and responsibility rest with the judiciary.” Yet the book strongly commends the balancing of competing interests as a technique of judicial decision-making, implying that in the gas-mask case the court should have balanced against considerations of equality whatever military reasons the army gave for distributing fewer gas masks on the West Bank than in Israel proper, such as that Iraq was more likely to aim its missiles at Jews than at Arabs. A few pages after the gas masks Barak writes inconsistently that when deciding whether to invalidate a security measure, “the court asks if a reasonable person responsible for security would be prudent to adopt the security measures that were adopted.”

The book is, in fact, rather unsophisticated, as if written for a nonprofessional audience. (It is also riddled with minor errors, such as renaming me “Robert Posner.”) But it has some good points, such as its discussion of the things besides justice that judges should consider in interpreting a statute, bridging that mysterious gap between law and society, and objective purpose “at the highest level of abstraction” (the level at which the objective purpose is to realize the ideals of democracy). And the chapter on terrorism that I have just been criticizing rightly observes that judicial decisions restricting civil liberties in wartime may serve as precedents for restricting such liberties in peacetime, which to some extent has happened in the United States since September 11, and also that we do not need two systems of balancing security and liberty, one for wartime and one for peacetime – we can use one system, while recognizing, as Barak to his credit does, that security does have more weight in time of war. Nor do I mean to suggest that Barak’s judicial oeuvre as a whole is hubristic. The “Basic Laws” may not be a constitution, but they provide an adequate textual basis, even in American terms, for decisions that Barak has written forbidding discrimination against homosexuals and against Israel’s Arab citizens.

And whatever the weaknesses of the book, Barak himself is by all accounts brilliant, as well as austere and high-minded–Israel’s Cato. Israel is an immature democracy, poorly governed; its political class is mediocre and corrupt; it floats precariously in a lethally hostile Muslim sea; and it really could use a constitution. Barak stepped into a political and legal vacuum, and with dash and ingenuity orchestrated a series of (in Laurence Tribe’s words on the dust jacket) “surprisingly agreeable outcomes.” He was a legal buccaneer, and maybe that was what Israel needed. But there is not a hint of an acknowledgment of this in the book. Barak writes not only without self-doubt, but also without a sense that his jurisprudence may reflect local, as well as personal, conditions. (He survived the Holocaust as a child in Lithuania, and this may help us to understand a position of his that would be thought unacceptably illiberal in the United States: that no member of an anti-democratic party can be permitted to stand for election to the Knesset, since the Nazi Party came to power in Germany democratically.) He pities our Supreme Court justices their timidity. No wonder he frightens Robert Bork.

By Richard A. Posner