AUL’s Kagan File: The “Judicial Hero” Memo Revisited
TO: Interested Parties
From: AUL Legal Team
Date: May 20, 2010
Re: Kagan’s Judicial Hero
Supreme Court nominee Elena Kagan calls Aharon Barak her “judicial hero.” Aharon Barak retired from the Supreme Court of Israel in 2006, the same year he published The Judge in a Democracy, outlining his personal judicial philosophy. Across the legal spectrum, Barak is known as a judicial activist and his judicial philosophy in The Judge shows why.
- Barak denies that he is a judicial activist, defined by him as “one who imposes his personal views on the society in which he judges.” Yet his philosophy of adjudication, particularly with regard to constitutional interpretation, statutory construction, and separation of powers places him fully in the ranks of judicial activists.
- In his book, Barak states, “…a good judge is a judge who, within the bounds of legitimate possibilities at his disposal, makes law that, more than other law he is authorized to make, best bridges the gap between law and society and best protects the constitution and its values.”
- These elements of a judge’s role go “beyond actually deciding the dispute.” It is in the area of “hard cases” where Barak finds existing law does not provide an answer. The judge must “make law.”
- In order to bridge the gap between law and society, Barak writes, “the judge may give a statute a new meaning, a dynamic meaning, that seeks to bridge the gap between law and life’s changing reality without changing [the words of] the statute itself. The statute remains as it was, but its meaning changes, because the court has given it a new meaning that suits new social needs.”
- To illustrate this “dynamic” change of meaning without changing a law itself, Barak cites a 1986 case, Bowers v. Hardwick, in which the U.S. Supreme Court upheld a state’s right to criminalize homosexual intercourse and a 2003 case, Lawrence v. Texas, in which the Court “overturned its prior holding…[and] held that the Constitution bars legislation criminalizing consensual sexual relations between adults.” Yet, according to Barak, “The difference between the two decisions did not reflect a constitutional change…rather the change that occurred was in American society…to recognize the nature of homosexual relationships and…to treat them with tolerance.”
- It is worrisome that a judge would treat constitutional provisions in this manner, and advocate that other judges do so as well.
- It raises the question of who defines “new social needs.” In a democracy, the legislature expresses the will of the people regarding changing values and concerns. In Barak’s judicial philosophy, judges should assume that role where they find, in their view, a gap. In fact, Barak expects the “the need to bridge law and society will become more pressing. Social changes are becoming more and more intensive…The legislature cannot always keep pace with these changes. Society will need courts more than ever to bridge the gaps between law and life. This is the case for gaps created by technological changes…for gaps created by social changes, such as attitudes toward religion, the institution of marriage, social rights, and other changes…”
In other words, Barak believes in “government by the judiciary,” a novel theory, one which our Founding Fathers never embraced.
Elena Kagan needs to be asked during her hearing whether she agrees with her judicial hero Barak’s views on the respective roles of courts and legislatures. What “social changes” or “social needs” does she believe warrant judicial reinterpretation of the meaning of a statute or a constitution?